Original post made by Tom Cushing on Feb 8, 2012
This particular campaign in the broader culture wars begins in 2000 with the passage of Prop 22, legislatively defining marriage as a one-man, one woman show. The margin then was a comfortable 21%. After the CA Supreme Court declared that Proposition violated the state constitution, Prop 8 was born to amend the constitution, itself. It, too, won after a nasty, exceptionally well-financed and divisive battle this time more narrowly, but clearly, at 5%. It is remarkable to me that the state constitution can be amended so easily, given the role of that document at the apex of the state's governance, but I digress (delay of game?).
Enter a bi-partisan coalition between two of the best trial lawyers in the country, Ted Thompson and David Boies: conservative and liberal, former Solicitor General and the guy who beat Microsoft, opposing counsel in Bush v. Gore, and, by all reports, breeders both of them. Ignoring (some would say "usurping") the more cautious counsel of established leaders in the gay rights movement, Thompson/Boies brought a lawsuit on behalf of two gay couples to challenge the constitutionality of Prop 8 this time on the federal level. They believe, obviously, that five-or-more votes exist on the US Supreme Court to vindicate their position, but it's a high wire act if that fifth vote (likely Justice Kennedy in the current make-up of the Court) tips the other way, it resets the clock to a much earlier, less favorable era for gays and other minorities.
Now, a brief civics timeout. The Bill of Rights and the 14th Amendment contain bedrock principles of American culture and aspiration freedoms of speech and religion, against unreasonable searches and seizures, and guarantees of due process and equal protection under the law, as examples. Those provisions serve as checks on governmental power exercised against individual Americans. More broadly stated, they protect minorities against the tyranny of the majority by holding the actions of "the People" to timeless, principled standards. They are interpreted by the Supreme Court, and every law state and federal must be consistent with those interpretations.
The lawsuit was heard by Judge Walker, a Reagan appointee, randomly assigned to the case. The trial phase built a record that demonstrated just how thin the Prop 8 proponents' policy bases are, when subjected to dispassionate analysis and cross-examination. Judge Walker had no difficulty ruling Prop 8 unconstitutional on any of three bases. (In an interesting sideshow, the Proponents sought to make hay with the ex post facto "revelation" of Judge Walker's own sexual orientation. It was no secret; they could not have been unaware of it from the outset hell, I knew it, and I'm hardly an Insider. They chose, cynically I believe, to raise it after the trial, at a time that would feed the persecution sensibilities of their more credulous supporters).
The intermediate Court of Appeals yesterday chose one of those bases for its ruling that affirmed Judge Walker's order. A philosophically balanced panel ruled 2-1 on a basis that is both narrow and a devastating critique of the Proponents' cause: that there is simply no rational basis in the record for Prop 8's marital disqualification of same-sex couples. For the majority, the Proposition rests simply on social disapproval and fear of difference, neither of which meets the very low "rational basis" standard of review. The dissent argued both that the Judges were bound by precedent of a 1972 Supreme Court denial of review, and that the rational basis might be found in the state's interest in optimizing child-rearing circumstances.
The Supremes are faced with several choices: they can deny review, which would have the effect of invalidating Prop 8 in CA, they can decide it on the narrow grounds of yesterday's Opinion (same effect), overturn it on that basis (November ballot, here we come, again), or take the opportunity to more expansively opine on the subject, as Judge Walker did, pro or con. There are reliably liberal and conservative wings of the Court as always (and ingeniously thanks Founders!), the Justices in the middle hold the key. It's worth noting that Justice Kennedy, that likely fifth vote either way, wrote the majority opinion in Romer v. Evans, a 1996 case relied-upon heavily by the Ninth Circuit majority.
Regardless, there's another half to play. For my part, I see this as an important test on the issue of how this country treats folks who will never command a majority. In its history, the Court has stood up (Brown v. Board of Education), and down (Korematsu v. United States) for minority rights. Here's hoping they will choose to stand with the Ninth Circuit, and with folks who deserve to live their lives free of irrational, government-sponsored opprobrium. In the words of Dr. King: the arc of history is long, but it bends toward justice. So may it be.
on Feb 8, 2012 at 2:21 pm
"Irrational-government sponsored opprobrium"? Little extreme in your analysis, don't you think, Tom?
This is a very emotional, inflamed, issue, that for many has religious, not moral, concerns and ramifications. For many, the concern is the use of the word "marriage", which has a biblical, religious meaning. Comparing this issue to Brown v. Board of Education, is patently wrong, as barring people from school based on race, does not impact religious views.
I honestly believe that if the government simply created something called "Civil Unions", not "marriage", where you fill out forms and register as a "civil union", and by having a "civil union" you have additional rights and ramifications, healthcare, probate, adoption, taxes, etc, there would be no religious concerns and most people would have no problem with it.
But when you use the word, "marriage", and all the religious and biblical meanings associated with that word, you create problems and tensions that will always exist.
Where does this end? If one of the Catholic Missions decides that they do not want to allow a gay "marriage" to take place at their church, will the state be able to force them to do so? Does the "right" of the gay to get married outweigh the right of freedom to practice religion? Why is it that so many liberals never give any deference to the constitutional right of freedom of religion,when forcing their views on others?
Tom, to most Californians, this issue is not so crystal clear, right and wrong, as you suggest, comparing it to racial discrimination in schools.
Governor Brown slashing the law to allow dogs to be killed after only three days in the pound is crystal clear and wrong. Allowing gay "marriages" is open to lively and emotional debate, and I would hope that liberals would at least pretend to consider the constitutional religious freedom arguments before labeling all those who disagree with them to be similar to those who oppose minorities attending school.
on Feb 8, 2012 at 3:08 pm
There are no more minorities or majorities. There are only issues.
on Feb 8, 2012 at 3:50 pm
If we consider marriage to have a "biblical, religious" meaning then it should be a matter for churches only, and the government, including all its branches such as the IRS, should not give it any special status. Then it might make sense to rename marriage in the legal sense to civil union or whatever.
But if we are attached to the word "marriage" and want to use it for legal unions between adults, then the religious can't expect to define it in law according to their "biblical principles" for those who do not adhere to those principles.
This really seems to be pretty clear.