Stupid lawyers
So California just passed Proposition 8 (go read it), which amends that state's Constitution: SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California. There are already lawsuits challenging this, on what are essentially bullshit technicalities, and they'll fail. Now what ought to happen, to really engage the political process, is that California should pass another initiative on their next cycle and re-amend their constitution to strike this section. Maybe that will happen. It would be the democratic process in action.
Yet that's not at all the point I'm after here, which is to illustrate how demagogues will badly draft bad laws in their haste. This amendment is a law to be sure; a constitution is the basic law of any land (where one exists). The problem with this law as a law, aside from all its affronts to dignity, is that it's got a basic injustice at it's core, which is that it's an ex post facto law. Such a law is one that reaches back in time to alter the legal interpretation of events that have already happened. Such laws are unjust because they make any action suspect by some future tyrant. The prohibition against such laws is in both the US and California constitutions. This proposition, by simply defining already-valid marriages away, puts the status of such marriages into inconsistency, eliminating the solid ground of legal definition. This is the same level of importance as writing the laws down in the first place. If you then write down a law that is, quite literally, senseless, it's an affront to the very core of the rule of law.
Why is this inconsistent? Well, get ready for something that sounds like a logic puzzle, because that's essentially what it is. Consider a gay couple wed last month in California. According to the amendment, the couple is not married because they cannot, by definition, be considered married. On the other hand, last month they were married. Because the proposition did not nullify their pre-existing marriage-how could it? it doesn't mention pre-existing marriages-we have to assume that such a state of legal affairs did not change ex post facto. The only other time it could have change is at the moment the law came into being, a fictional single moment, to be true, but still exactly one moment. We might say that the change of definition instantly changed the marriages somehow. Well, it didn't annul them, certainly, because that would be ex post facto, changing the marriage status in the past. Did it cause an instant divorce? Was it simply a forcibly mandated termination? This matters because the consequences of unwinding a marriage differ between the various ways that it's terminated. (Remember, California is a community property state.) So this proposition remains silent on whether previous marriage stand and it also remains silent that, if they don't, how they were terminated. So the language in the amendment is either inconsistent (if it didn't terminate the marriages) or unacceptably vague (if it did).
In either interpretation the law fails the rule of making sense. If the marriages didn't terminate it fails by generating two contradicatory senses. If they did it fails by lacking enough text to make sense of a situation the law sought to create. Either way it fails. So, are they married or not? In my view they are, although to achieve full agreement will require court action. Just a gay divorce filing with a dispute over division of property would be able to force this issue.
What I am ever dismayed of with lawyers these days is that they rest so much of their case on the technicalities of drafting, rather than reaching back to the principles of Justice which undergird the law. Looking at this situation as the action of a tyrant seeking to edit the past makes it very clear what the problem with the law is. The technicalities come later, to walk through the delicate manifestations of Justice insofar as the law is able to reflect it.
Yet that's not at all the point I'm after here, which is to illustrate how demagogues will badly draft bad laws in their haste. This amendment is a law to be sure; a constitution is the basic law of any land (where one exists). The problem with this law as a law, aside from all its affronts to dignity, is that it's got a basic injustice at it's core, which is that it's an ex post facto law. Such a law is one that reaches back in time to alter the legal interpretation of events that have already happened. Such laws are unjust because they make any action suspect by some future tyrant. The prohibition against such laws is in both the US and California constitutions. This proposition, by simply defining already-valid marriages away, puts the status of such marriages into inconsistency, eliminating the solid ground of legal definition. This is the same level of importance as writing the laws down in the first place. If you then write down a law that is, quite literally, senseless, it's an affront to the very core of the rule of law.
Why is this inconsistent? Well, get ready for something that sounds like a logic puzzle, because that's essentially what it is. Consider a gay couple wed last month in California. According to the amendment, the couple is not married because they cannot, by definition, be considered married. On the other hand, last month they were married. Because the proposition did not nullify their pre-existing marriage-how could it? it doesn't mention pre-existing marriages-we have to assume that such a state of legal affairs did not change ex post facto. The only other time it could have change is at the moment the law came into being, a fictional single moment, to be true, but still exactly one moment. We might say that the change of definition instantly changed the marriages somehow. Well, it didn't annul them, certainly, because that would be ex post facto, changing the marriage status in the past. Did it cause an instant divorce? Was it simply a forcibly mandated termination? This matters because the consequences of unwinding a marriage differ between the various ways that it's terminated. (Remember, California is a community property state.) So this proposition remains silent on whether previous marriage stand and it also remains silent that, if they don't, how they were terminated. So the language in the amendment is either inconsistent (if it didn't terminate the marriages) or unacceptably vague (if it did).
In either interpretation the law fails the rule of making sense. If the marriages didn't terminate it fails by generating two contradicatory senses. If they did it fails by lacking enough text to make sense of a situation the law sought to create. Either way it fails. So, are they married or not? In my view they are, although to achieve full agreement will require court action. Just a gay divorce filing with a dispute over division of property would be able to force this issue.
What I am ever dismayed of with lawyers these days is that they rest so much of their case on the technicalities of drafting, rather than reaching back to the principles of Justice which undergird the law. Looking at this situation as the action of a tyrant seeking to edit the past makes it very clear what the problem with the law is. The technicalities come later, to walk through the delicate manifestations of Justice insofar as the law is able to reflect it.