Proposition 8 to Stay

So the California State Supreme Court has ruled that Proposition 8 can stand. I’m not going to rehash old arguments – I think we all know which side we sit on, so I’ll show you dissenting Justice Moreno’s opinion instead:

The question before us is not whether the language inserted into the California Constitution by Proposition 8 discriminates against same-sex couples and denies them equal protection of the law; we already decided in the Marriage Cases that it does.  The question before us today is whether such a change to one of the core values upon which our state Constitution is founded can be accomplished by amending the Constitution through an initiative measure placed upon the ballot by the signatures of 8 percent of the number of persons who voted in the last gubernatorial election and passed by a simple majority of the voters. (Cal. Const., art. II, § 8.)  Or is this limitation on the scope of the equal protection clause to deny the full protection of the law to a minority group based upon a suspect classification such a fundamental change that it can only be accomplished by revising the California Constitution, either through a constitutional convention or by a measure passed by a two-thirds vote of both houses of the Legislature and approved by the voters?  (Cal. Const., art. XVIII.)

For reasons elaborated below, I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus “represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof.”  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 221 (Amador Valley).)  The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities.  It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.  I therefore dissent.

I too fail to understand how the will of a hostile majority can be more important than the equality provision of the state’s constitution, but for now we’ve sadly moved beyond that argument. San Francisco Mayor Gavin Newsom is entirely right when he says:

It is up to every single one of us who supports marriage equality to reach out to those who still disagree with our position and have a personal conversation about why it is so important to treat every Californian equally.

So get on with it, and explain why equality before the law trumps ‘God’s law’ every time. Harvey Milk showed the way – we must all live up to his example!

Gay Marriage in California

An exciting state of affairs unfold in California, as its State Supreme Court slaps down Proposition 22, determining gay Californians have a constitutional right to marry.

Vodpod videos no longer available.from www.sfgate.com posted with vodpod

“History alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee,” the court wrote.

“Our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation,” the court wrote.
The state’s attorney general argued that California’s domestic-partnership law afforded the same substantive rights as marriage, but the court found the separate nomenclature risks denying same-sex couples “equal dignity and respect”.

So now a ballot measure banning recognition of same-sex marriages, passed in 2000, has been struck down as unconstitutional – is that the end of the matter? Last year the California State legislature actually passed marriage equality legislation, which was only vetoed by the Governator himself. Yet as this vote approached, so did a campaign to change the Californian State constitution again, this time banning same-sex marriage itself by constitutionally defining marriage as a heterosexual institution. Bizarre I know, but this is what the least popular president in American history tried (and failed) with the Federal Marriage Amendment in 2004. Schwarzenegger unexpectedly detached himself completely from this, which now makes his current position, in an election year, very interesting indeed.

“I think we need a constitutional amendment so that a foreign-born (person) can run for president, but not against gay marriage. That would be a total waste of time.”

And California now becomes an honest-to-goodness battleground. As Chris Crain points out California is the 8th biggest economy in the world, has 12% of the population of the US, and with its history at the forefront of civil rights politics in the US, legalisation of same-sex marriage carries enormous weight. Now that Proposition 22 has been repealed, the opponents of same-sex marriage have to fight to the finish in November; if they lose they essentially lose the argument in the United States full stop. At the same time Schwarzenegger is no longer on their side, making November a real chance at retaining full equality, as in the case of Massachusetts.