Breaking – California Supreme Court upholds Prop 8

To be honest, I wasn’t expecting it, but it does seem to be the correct judicial response. If the Supreme Court had over-ruled a referendum of the whole electorate, that would have been majorly controversial.

It appears that they have ruled that all the existing same-sex marriages are still valid, but no new ones are to be permitted. Not sure how that’ll work, but there you have it.

It will be very interesting to see how those who are anti-Prop 8 will react. Remember, when the Supreme Court initially made its May 15th 2008 decision, there was no wide-spread rioting or damage caused by traditionalists. However, the same could not be said when Prop 8 passed. Are we going to watch liberals being extremely illiberal again?

Update – Tim K over at Box Turtle Bulletin has this to say:

The Times reminds us

Even with the court upholding Proposition 8, a key portion of the court’s May 15, 2008, decision remains intact. Sexual orientation will continue to receive the strongest constitutional protection possible when California courts consider cases of alleged discrimination. The California Supreme Court is the only state high court in the nation to have elevated sexual orientation to the status of race and gender in weighing discrimination claims.

Taken literally, this would then mean that an amendment to the California Constitution to exclude citizens from certain rights based solely on their race would also be constitutional on a state level.

I think Tim K misses the point. Equality is based on the basis of different people being entitled to perform the exact same activity as other people. So in the case of marriage, the current right is for someone to be able to marry someone of the opposite sex. The sexual orientation of the person involved is irrelevant, the issue is simply about being able to do the same activity.

At the moment, (and as the law now stands), *no-one* is entitled to marry whoever they want. There are certain guidelines (opposite sex, neither currently married etc) which apply to all. If the people of California voted to not allow black people to marry, but to allow white people to, then that would be discriminatory, because the exact same activity would be disallowed to one group of people on the basis of their race. But not allowing someone to marry someone of the same sex is *not* discriminatory if no-one else is allowed to do so.

Now, if it could be demonstrated that sexual orientation was a natural biological variance in the same way that race or sex was, then I think a legal case could begun to be built to move towards same-sex marriage. But at the moment we’re actually at the position where if someone says “I’m gay” there is simply no way they can prove such a statement scientifically (as you can with race or sex). That’s an issue for the pro-LGBT rights lobby and it needs to be addressed before moving forward with issues of equality.

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  • Carolyn

    On the face of it, your argument seems to be logically sound.

    However, turn it around, and see what you think. How would you feel about being ‘given the right’ to marry another man? Not something that would interest you? How would you feel if everyone no longer had the right to marry someone of the opposite sex, but only had the right to marry a same-sex partner?

    Everyone would have the ‘exact same rights’ – so it would not be discriminatory under your definition.

    But it sure feels discriminatory, doesn’t it? I would be furious (and heart-broken) if my marriage to my husband was declared null and void – and it wouldn’t help me a whole heck of a lot if someone said, ‘Oh – but you can marry another woman’.

    Your examples of race and sex as issues that are straight-forwardly genetic also have numerous problems, which I’d be happy to discuss, if you are interested. :-)

    As for reaction from the left – here is a link to a blog reaction from Andrew Sullivan, who is a well-known gay activist (although ironically, he’d consider himself conservative politically):

    http://andrewsullivan.theatlantic.com/the_daily_dish/2009/05/the-prop-8-ruling.html

    As you’ll see if you read the post, he is a vehement defender of both gay marriage and religious freedom.

  • Carolyn

    Just wanted to apologise – I commented before reading your article about being ‘post-gay’.

    My analogy still stands (as to why simply allowing everyone to do the same thing can still be discrimination), but the way it was phrased doesn’t take into account your personal circumstances – my apologies again for that.

  • Blair

    Peter,

    maybe I should be putting this on an ‘Ask Peter’ thread, but one question. Above you say,

    “Now, if it could be demonstrated that sexual orientation was a natural biological variance in the same way that race or sex was, then I think a legal case could begun to be built to move towards same-sex marriage. But at the moment we’re actually at the position where if someone says “I’m gay” there is simply no way they can prove such a statement scientifically (as you can with race or sex)”.

    Why do you use this argument? Demonstrating that a given condition is a “natural biological variance” is (I’m presuming) not the basis for equality / anti-discrimination laws. For example, there is (hope I’m getting this right) no clear biological way of diagnosing autism, yet people on the autism spectrum are protected by disability discrimination legislation. And of course under equality laws religious people have some protections too – the rest of this sentence is probably too obvious to need saying. So why?

    in friendship, blair

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