The Supreme Court of California is bracing for arguments about the passage of Prop 8 last November and the future of the same-sex marriages that were legally performed during the time between the court ruled in favor of them and the passage of the constitutional amendment.
A year after the state Supreme Court entertained arguments on extending marriage to gay couples, many of the same lawyers will be back before the same justices this week arguing why California’s voter-appproved ban on same-sex marriage should stand or fall.
The passage of Proposition 8 last November changed the state constitution to prohibit gay marriage and trumped the high court’s decision as few months earlier to legalize it. But the ballot measure was appealed and the justices on Thursday are getting the final word on whether marriage is an institution that must accommodate two women or two men.
The debate will be framed by not only the gay and lesbian couples who see their struggle as the modern equivalent of prohibitions on interracial marriage, but the 7 million citizens who rejected that comparison in an $83 million election.
The stakes are high – for the 18,000 couples who married while same-sex weddings were legal, for gay marriage opponents who object on religious grounds and for others who are deeply divided on the issue. And whatever the court decides is likely to have ramifications not only for millions of Californians but also for other states grappling over gay marriage.
Amendment 2 here in Florida, passed at the same time and having the same intent of depriving gays and lesbians the equal right to marry as straight couples, is in no danger since there is no clause in the Florida referendum laws that provide for the caveat of disallowing an amendment that substantially revises the state Constitution itself, such as they have in California. But, as the article says, it will be important to see how this court rules because it provokes a dilemma for the defenders of the status quo: if same-sex marriage is such a threat to the fabric of our society that they claim it is, how can they then argue that Prop 8 does not substantially revise the California state constitution? You can’t have it both ways. Either depriving an entire class of people of the right of equal protection under the law is a substantial revision, or it’s not. Unless, of course, you believe that gay and lesbian citizens aren’t worthy of equal protection in the first place. If that’s the case, we have a whole new ball game.
The court will also decide whether or not the same-sex marriages performed when they were legal are still valid. I’m not a lawyer, but I think the concept of applying a law retroactively is contrary both to the letter and the spirit of our laws and Constitution. If the marriages were once legal and performed legally with all the proper forms filled out, the state shouldn’t be able to declare them invalid. It would be like passing an assault weapons ban and then trying to enforce it by going house to house and seizing any weapons that were purchased before the ban took effect. Let’s see how long the NRA and the gun-owners would stand for that.
I’ll leave it to the legal observers and experts to predict what will happen in the California Supreme Court. My own take is that the fight for Prop 8 and Amendment 2 should have been fought and won before the ballots were cast. While I understand and feel the same outrage and disappointment that the people of California and Florida would vote for inequality in this day and age, some of us — myself included — took it for granted that bigotry and religious dogma wouldn’t hold sway. I hope the next time we won’t be so cavalier. My biggest disappointment, however, is that there will be a lot more “next times.”