Wednesday, May 27, 2009

Hollywood Ending

As I noted last night, I can’t say that I’m surprised with the outcome of the California State Supreme Court ruling yesterday that upheld Prop 8’s ban on same-sex marriage. I am not a lawyer and so I can’t dissect the ruling in those terms, but what I gather is that same-sex couples are entitled to all the rights and responsibilities that straight couples are except the term “marriage.” That sounds suspiciously like “separate but equal,” and apparently there are still some rights that same-sex couples are not privy to which the state legislature must still address.

Andrew Sullivan calls the ruling “perfect.”

It would have been dreadful if voters were retroactively told their valid vote was somehow null and void – it would have felt like a bait and switch and provoked a horrible backlash.

While I can’t say I’m 100% behind him on the emotional level, as a practical matter of law he’s right; to overturn the referendum on the thin reeds that the opponents made in their case before the court would have made a mockery of both the court and the process, and all it would have done is dragged it through another series of purgatory-inducing suits and trials. The opponents of marriage equality won that round, and the way — at least in California — is to beat them at their own game. Proponents should put up a referendum of their own and make their case for repeal. And this time they should proceed as if they have everything on the line, not like they did last year and take it for granted that the voters were with them on it.

In a separate ruling the court let stand the 18,000-plus same-sex marriages that were performed between the time the court ruled that straight-only marriage was unconstitutional and the time that Prop 8 was approved. That was a no-brainer; ex-post facto laws are a violation of both the state and federal constitutions. But, as Dan Savage pointed out, it’s going to be interesting to see how the anti-gay forces take that.

The anti-gay bigots said before the decision that they wanted Prop 8 upheld and they weren’t concerned about the 18K gay couples who wed while same-sex marriage was briefly legal in CA. That exposes their fundamental dishonesty. If they believe, as they claimed during the campaign, that married same-sex couples are a threat to the family, a threat to children, an invitation to hurricanes and earthquakes and wildfires, and that the existence of married gay couples somehow requires homosexuality to be taught in schools, how can they be indifferent to 18K married gay couples rattling around the state? Won’t all those bad things still happen?

Either they don’t believe any of that crap—and many don’t—or they intend to go after the 18K couples whose marriages were declared legal.

What I find interesting is that while a lot of drama and demonstrations have been playing out in California and there have been a lot of wars of words between opposing sides out there, marriage equality has been quietly taking place in places like Vermont and Maine where the state legislatures have already changed the laws, and New York is working on it. New Hampshire was on the verge of passing it until it hit a speed bump regarding dispensations for religious groups, and hopefully it will be worked out. California may be the trendsetter in a lot of things such as fashion and hipness and they may have all the flash and celebrity of Hollywood, but when it comes to same-sex marriage, they are becoming practically irrelevant, and the example they have set is a case study in how not to achieve it.