Oral Arguments and Thoughts
This one just popped into my head to want to write about. There are lots of these, but I haven't been good about jotting them down as I think about them or plopping down to write as I have time. Well, then I guess there hasn't been a lot of reflective time either... but that comes with it's own rewards too. But that's a different topic entirely.
I can't actually remember the last time I watched a full proceeding on CSPAN or similar. In this case, it was the California Channel (Comcast 108) which was carrying the oral arguments in the case against Propposition 8 in the CA Supreme Court, which happened to be sitting in SF this time.
Without going into all the details of the proceeding -- which we did a decent job of boring some people with at last Friday's munch -- I basically think we're going to get stuck with the amendment for now unless the court agrees that it is incompatible with the equal protection clause of the CA constitution, and/or contradicts it's earlier decision in the marriage cases.
As it regards the existing marriages, I tend to agree with the general sentiment that the court will not choose to invalidate them... if for no other reason than it would be problematic to retroactively invalidate contracts according to existing law. Starr showed his political side when he tried arguing that this invalidation wouldn't be retroactive because Prop 8 had enough signatures to be on the ballot (thus the people had spoken) before the opinion in the Marriage Cases was delivered. Really, Mr. Starr? So why bother holding an ELECTION if signature gathering is enough to enact a law? Hmm... funny that. Go away and look for more cum-stained dresses or courts to ingratiate yourself with, why don't you?
As for the matter of the amendment... I don't feel confidently about it one way or the other. I think the court is rightly inclined to accept the will of the citizenry, right or wrong. But I am mindful that there are provisions of our constitution that are fully intended to limit that will, and were themselves enacted by the people. Most important of these is the equal protection clause, which says simply that all laws shall be applied equally to all... and has some provisions for restricting the majority's ability to impinge on the freedoms of accepted suspect classes -- of which LGBT folks are, as well established in the Marriage Cases.
I thought it particularly telling that in Marriage Cases, the court held that to call the union between two same sex partners something other than what it called other unions was on it's face discriminatory, rendering those unions not labeled marriage as something less -- what most of us would, from the US Supreme Court, consider a basic "separate but equal" type of argument. The challenge the court faces is how to handle this amendment with earlier decisions (esp the marriage cases) and other parts of the CA constitution.
I am hopeful that the balance will tip in favor of repealing the amendment. But regardless the outcome, it is clear to me that this battle is not over. When there are still those who firmly believe that there are others in our communities who are not equal, not worthy of equal protection under law, and feel the only way to lift themselves up is to trample on someone else, then NONE of us (including the bigots) experience our true measure of freedom.
I can't actually remember the last time I watched a full proceeding on CSPAN or similar. In this case, it was the California Channel (Comcast 108) which was carrying the oral arguments in the case against Propposition 8 in the CA Supreme Court, which happened to be sitting in SF this time.
Without going into all the details of the proceeding -- which we did a decent job of boring some people with at last Friday's munch -- I basically think we're going to get stuck with the amendment for now unless the court agrees that it is incompatible with the equal protection clause of the CA constitution, and/or contradicts it's earlier decision in the marriage cases.
As it regards the existing marriages, I tend to agree with the general sentiment that the court will not choose to invalidate them... if for no other reason than it would be problematic to retroactively invalidate contracts according to existing law. Starr showed his political side when he tried arguing that this invalidation wouldn't be retroactive because Prop 8 had enough signatures to be on the ballot (thus the people had spoken) before the opinion in the Marriage Cases was delivered. Really, Mr. Starr? So why bother holding an ELECTION if signature gathering is enough to enact a law? Hmm... funny that. Go away and look for more cum-stained dresses or courts to ingratiate yourself with, why don't you?
As for the matter of the amendment... I don't feel confidently about it one way or the other. I think the court is rightly inclined to accept the will of the citizenry, right or wrong. But I am mindful that there are provisions of our constitution that are fully intended to limit that will, and were themselves enacted by the people. Most important of these is the equal protection clause, which says simply that all laws shall be applied equally to all... and has some provisions for restricting the majority's ability to impinge on the freedoms of accepted suspect classes -- of which LGBT folks are, as well established in the Marriage Cases.
I thought it particularly telling that in Marriage Cases, the court held that to call the union between two same sex partners something other than what it called other unions was on it's face discriminatory, rendering those unions not labeled marriage as something less -- what most of us would, from the US Supreme Court, consider a basic "separate but equal" type of argument. The challenge the court faces is how to handle this amendment with earlier decisions (esp the marriage cases) and other parts of the CA constitution.
I am hopeful that the balance will tip in favor of repealing the amendment. But regardless the outcome, it is clear to me that this battle is not over. When there are still those who firmly believe that there are others in our communities who are not equal, not worthy of equal protection under law, and feel the only way to lift themselves up is to trample on someone else, then NONE of us (including the bigots) experience our true measure of freedom.