Wednesday, May 27, 2009

Yesterday's California Supreme Court decision on Prop 8

It seems evident to me that the "Yes on Prop 8" faction has pretty much won a Pyrrhic victory, sacrificing the war (and what shreds of credibility they may have possessed) to win the battle. I'm not saying their strategy of smokescreens, political chicanery and lies hasn't been effective in the short term, but the fact is that they shamelessly manipulated millions of people to get their way without establishing any substantial foundation for a lasting victory. Such as, you know, basing their position on facts, logic or sensible ethical standards.

Those who firmly believe that gays should have their rights stripped away over symbolism, semantics or religious doctrine will never change their minds, largely because they need an underdog to feel superior to. The gay marriage issue is the best thing that has happened to them in a long time. Their leaders know that every army needs an enemy.

However, middle-of-the-road voters who are so easily swayed by smoke and mirrors in the heat of a controversy may not remain steadfast over the long term, given that they have no well-formed opinions of their own, and the people who care about equality and justice are increasingly becoming aware of how serious this threat to everybody's freedom really is.

I may be hopelessly idealistic, but I think the net effect of Prop 8, long term, will be to illustrate the need for people to be a lot less complacent, and to actively take part in protecting their rights from vicious and unscrupulous but well-organized fanatics and their battalions of enervated stooges.

Also, I'd like to point out something that none of the articles I've been reading today really addresses: the California Supreme Court decision, although it does not repeal the amendment, really serves to define its scope and makes it all about the name.

Excerpt from pages 36-37:

Here the new constitutional provision (art. I, § 7.5) provides in full: "Only marriage between a man and a woman is valid or recognized in California." By its terms, the new provision refers only to "marriage" and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than "marriage." Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of "marriage" under California *\37 law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, supra, 43 Cal.4th 757, insofar as the majority opinion in that case holds that limiting the designation of "marriage" to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. Because, as a general matter, the repeal of constitutional provisions by implication is disfavored (see, e.g., In re Thiery S. (1979) 19 Cal.3d 727, 744; Warne v. Harkness (1963) 60 Cal.2d 579, 587-588), Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.

So, if you really analyze the language of the decision, Prop 8 has been effectively reduced to a difference in terms. Of course, that doesn't mean everyone should say, "Cool! I think we're done here," but it really is kind of a setback for the "Yes" folks. Three steps forward, two steps back.

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