A Great Analysis of the California Decision

Having just criticised Tim K on BTB for a post on the Prop 8 ruling, can I now commend to you all a post by Gabriel Arana on the same site that sums up very clearly what the Supreme Court in California said.

QUESTION 1: The judges were asked to decide whether Prop. 8 modified equal protection substantively enough to constitute a revision. Basically, the state’s Supreme Court found that NO, Prop. 8 did not constitute a fundamental revision of equal protection, which requires passage by the legislature and a public referendum, and therefore could stand as an amendment.

Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

The court is pointing out here that the only thing at stake here is the term “marriage.” Gays and lesbians retain all the rights granted by marriage in the state as articulated in In Re Marriage Cases, the decision which overturned the statutory ban on gay marriage last May. The court’s previous decision also elevated protections for gays and lesbians to the level offered to blacks and women; these protections, too, remain intact.

The passage of Prop. 8 has, according to the justices, “minimal effect on the governmental plan or framework of California that existed prior to the amendment” and therefore cannot be considered a revision to the state constitution. The judges relied heavily on this criteria — effect on governmental framework — in deciding that Prop. 8 was not a revision. They also considered the “qualitative” effect of Prop. 8 — how it affected the nature and credibility of the constitution — but fell back on the “qualitative” question of its concrete effects in deciding the matter.

There’s currently some really interesting discussion going on at BTB over the next move forward for the pro-gay lobby. What has become very clear is that in California same-sex couples in a civil union have practically all the rights that marriage has, they just can’t call it marriage.

Issues around the right of the majority to legislate to affect the minority are also being discussed at this thread, in particular about the limits of “equal protection”. Gabriel Arana raises the excellent point that:

The marriage/civil union distinction is still abhorrent and the comparison is low-hanging fruit, but there is a hint of gay martyrdom about it that strikes me as distasteful, especially when there are people in this country who actually do not have the same rights as those in California.

A gay person in Arkansas can be fired even if someone just THINKS he or she is gay–THAT more closely resembles the injustice of segregation than the fact that the state of California uses the term “civil unions” to describe gay partnerships even while offering all the same rights as marriage. The difference is symbolic and important, but to compare it to the very concrete suffering and discrimination faced by blacks under Jim Crowe is hyperbolic at best, offensive at worst. In fact it’s comparisons such as these that led Prop. 8 to be passed in the first place in California (some blacks find this comparison insulting).

Even those of us who are socially conservative should recognise that what Gabriel writes about the situation in Arkansas should be deplored by all. Regardless of your position on Prop 8, it is simply not acceptable that someone can be sacked from a job for being same-sex attracted. Perhaps that is a better way of spending the first few years of the Obama administration – tackling the blatantly obvious ongoing discrimination against people who self-identify as LGBT?

It’s fascinating stuff and I commend you all to go and explore the debate on BTB at the moment.

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