What is Proposition 8? What did the California Supreme Court recently decide about Prop 8?
Major news outlets yesterday were all too quick to show footage of protestors blocking a busy intersection in San Francisco – 175 protestors were eventually arrested. The protestors were reacting to the latest decision in the Proposition 8 fiasco. Proposition 8 was an amendment to the California state constitution that read, in part: “Only marriage between a man and a woman is valid or recognized in California.“ Prop 8, as it is popularly known, passed in the November 4, 2008 general election, making gay marriage illegal in the state of California.
There was nearly immediate legal action, challenging the validity of the proposition, arguing that same sex couples who were legally married during the brief period that gay marriage was legal would now find their unions in jeopardy.
California Supreme Court made a major ruling on Tuesday, May 27, upholding Proposition 8’s ban on same sex marriage while leaving legally intact the 18,000 or more unions the state already has sanctioned.
Regardless of legal precedent — the six justices who make up the majority in this case used legal precedent from as far back as the state Constitution of 1849 — Tuesday’s decision was questionable. Essentially, the California Supreme Court’s decision tells Californians that a right as fundamental as the ability to choose the partner of your choice like a “lottery ticket”, in the words of one popular blogger. Gays in California now feel that had they “gotten in early”, they would have been allowed to marry, and that those who arrived “a few days late” lose out on the chance to express their love for their partner.
No matter how you feel about gay marriage, you must admit that a court ruling that both acknowledges past marriages between same sex couples and cuts off the future chance of gay partners to marry is confusing and unjust.
To be fair, the legal clarity of the court’s ruling last year that the state Constitution guaranteed gays and lesbians the right to marry their same sex partners was also questionable. This whole confused state of affairs has been a constitutional mess from the beginning, so why should we be surprised that confusion is still king on the west coast?
The ruling in 2008 that opened the door for thousands of legal gay unions, sponsored by California Supreme Court Chief Justice Ronald M. George, drew inspiration from the philosopher Michael Walzer, whose outlook can be summed up fairly simply. Walzer believed that “the American concept of moral progress consists not in the creation of new and unique rights but in the extension of those rights recognized as fundamental to those people to whom they’ve been denied.” Its all about fairness. The earlier court decision stood among some famous peers, decisions that had a major impact on the nation as a whole. Think of the decision to allow gay marriage as similar to the landmark Brown vs. Board of Education case – these are cases in which judges sought to equalize outdated law with the social morality of their age
By stark contrast, Tuesday’s confusing and controversial ruling is nothing more than moral retreat and social “retrenchment”. Justice George’s latest majority opinion, asserts that Proposition 8 did not entirely repeal same-sex couples’ right to due process or the “constitutional right of same-sex couples to ‘choose one’s life partner — ” Instead, George wrote, “the measure carves out a narrow and limited exception to these state ‘constitutional rights.’ ”
In fact, the chief Justice insisted that Proposition 8 did not halt “all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family”. This statement cements the status of gay and lesbian Californians as second class citizens.
Let’s face it, America – to deny an entire group of people the right to marry is not, as George would have us believe, a “narrow exception” to the equal protection clause. George wants us to believe that it is morally permissible to make exceptions to constitutional rights for specific groups, as long as it’s done by majority vote. Does this sound like the America you know?
Let’s play make believe. Pretend a majority of Californians voted to make a narrow exception to California’s right to privacy which applied only to Jews, — would this be constitutionally acceptable? If African Americans were granted all the protections of the law except the right to marry outside of their race, would that be legal as long as the majority voted for it?
The California Supreme Court tried to make their ruling decent with a caveat to Prop 8 which allows the 18,000 existing same-sex marriages to stand. This is another logically curious decision that will again find California in the middle of more bitter ballot initiative politics. Probably worst of all, the Supreme Court’s decision on Tuesday will add credence to the accusation that all three branches of California’s government are acting outside of the public’s interest.
Proposition 8 passed after an enormous fund raising campaign by certain interest groups that may or may not be aligned with the general opinion of the people of California. We don’t really know how Californians feel about the issues of gay marriage, only that certain political groups were able to raise more money to support a single ballot proposition than any other political interest in the country outside of the Presidential campaigns. Since gay unions were first allowed in California, then banned, and now exist in a state of suspended animation, it is difficult to know exactly how the average Californian feels about the issue. The question that must be asked – is the government of California representing the people, or is it the other way around?