Prop 8; Why I think we won this round
..."Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed 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 relationship and the guarantee of equal protection of the laws. "
-From the decision.
They basically said that the language of the measure was legally valid under the CA Constitution, so they let it stand. But wait, what did they let stand?
The marriages already in place.
The reaffirmation that they did not use their personal beliefs or values.
That in no way was this decision to infringe on the rights and protections for same gender couples, their relationships and their families.
All that was "won" was that designating word "Marriage" is reserved for opposite gender couples. A hollow victory.
The dissenting Judge says "Go back to the ballot box, that's how to win this one last thing."
I particularly liked that the entire court said that this didn't reflect their core values and beliefs; this is a slap in the face of the churches which espouse a "Family Values Judiciary", the churches which funded the initiative, funded an opinion against their strategy.
So, can a same gender couple run right out and get married? In all but the term, for all that CA can grant as a state (since it's not recognised Federally) well, yes. Opposite gendered couples can't get Domestic Partnered any longer in CA. This is reserved for same gendered couples. Will the children be protected as part of this license? Yes.
Is it right? Well, since the opinion is going to be used to fight the good fight at the Federal level at some point, yes, this is very, very good for us. It's right, right now. Is it enough? It's not nearly equality.
Am I happy with the decision? Er, I really dislike that we're having to fight for our rights at all. Do I think this was a "Win" for our side, if we're smart enough to see it that way? Yes. Better put, if we're going to have some losses, this is exactly the kind of losses I want to be taking. All the protections but in name only? Oh, and instructions on how to fill out the form to get the name, too? That's called "one step at a time", and so, I think the people who wanted to invalidate the marriages which were performed were told in no uncertain terms that this would actually have a substantive effect on individuals and families, so; no way.
What we have, is huge, I am totally pleased that instead of getting the term, only to find out that it's not half of what they other side gets, (Again, I'm only referring to CA state; we have a much longer way to go at the Federal level), that we get legal protection and acknowledgement of our rights as a half way point? Well, let me see, it will keep me warm at night and yes, I think it's shabby.
In terms of what the proponents wanted? I'd say their proposition got gutted and what they're striving for was turned back by so many more steps, that I believe they were told "Here's your name tag, and those families over there? You can have no more effect on them with this, whatsoever." If this were a game, they got to the point they wanted, but then were set so far back on the board. Their struggles have been multiplied at great expense to themselves, and our path has been cleared by much of their own efforts.
"The majority opinion "avoids the daunting task of reconciling with our constitutional tradition a voter initiative clearly motivated at least in part by group bias."
Prop. 8 is a valid amendment because, "excepting the name, same-sex couples are entitled to enjoy all the rights of marriage, leaving the state with a continuing duty to "eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception."
- From the concurrence by Justice Kathryn Mickle Werdegar.
The State needs to get right on this, then.
So, who got told?