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By Tom Cushing

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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply...  (More)

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Uploaded: Feb 8, 2012
To paraphrase Clint Eastwood's raspy Super Bowl ad for an Italian car company: "It's halftime in California." As reported elsewhere hereabouts, the monumental struggle between the forces seeking and opposing same-sex marriage rights has reached an important mid-point.

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.
What is it worth to you?


Posted by American, a resident of Danville,
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.

Posted by Rick Pshaw, a resident of Danville,
on Feb 8, 2012 at 3:08 pm

There are no more minorities or majorities. There are only issues.

Posted by Dirk, a resident of Alamo,
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.

Posted by Tom Cushing, a resident of Danville,
on Feb 8, 2012 at 5:07 pm

Tom Cushing is a registered user.

@ American: I believe that your approach dignifies the linguistic sensibilities of one minority (offended religious folk) regarding the word "marriage" over the very access to that institution by another minority group. I would rank those interests the other way, as I think that before the society forecloses the defining, most intimate and fundamental relationship of adult life from a significant fraction of Californians, it ought to have a very damn good reason to do so (dare I say a "compelling" such reason).

Further, nobody -- NObody is suggesting that faiths will be ordered by the state to perform ceremonies that offend those private religious sensibilities, however misguided others may find them to be. They are completely free, privately, to believe and practice as they wish -- but when they use those beliefs to deny the basic civil rights of others outside the club, methinks that's wrong -- whether on the basis of race or sexual preference.

Religion is not under attack, here. But imagine how you might feel if it were? If, say, Baptists or UUs were forbidden to marry, you'd man the barricades -- and so would I. THAT's how gay Californians feel under Prop 8.

Posted by American, a resident of Danville,
on Feb 8, 2012 at 6:01 pm

If religion is not under attack, why is it that the largest opposition groups are the Mormon and catholic churches? Why not eliminate "marriages " in government, create civil unions, and leave "marriages" to each church, so Catholics can do catholic marriages between men and women, and Unitarian and other type churches can marry whomever they want?

Posted by Tom Cushing, a resident of Danville,
on Feb 8, 2012 at 6:11 pm

Tom Cushing is a registered user.

I would say that those particular denominations are doing the attacking, based on your facts. It is very clear that they took the offensive in this matter -- enlisting the state's help in imposing their beliefs and practices on others, on matters that do not affect them at all. That's hardly being "under attack."

It seems very Old Testament to me -- more Onward, Christian Soldiers! than Beatitudes. BTW, do you ever wonder what Jesus would've had to say on the matter?

Posted by enderdog, a resident of another community,
on Feb 8, 2012 at 7:59 pm

Seems that good points were made by all. Perhaps some were stretched a bit, but I like Tom's thought on the spirit of the bill of rights in defining and protecting individual liberties and freedom. That would seem to favor allowance for same sex marriage and really, how is this harmful or catastrophic. Live and let live. We already seem to have a rather loosely defined concept of marriage throughout the states. Different laws, procedures, customs, religous practices, divorce options, this is just one more on the list.

Posted by spcwt, a resident of Danville,
on Feb 10, 2012 at 2:05 pm

People wrongly assume that this case was about the substantive rights that go with marriage. This case was about using the marriage label only. No other rights were at stake. Just the label.

All people should be free to marry whomever they want and have all the civil liberties that go with marriage. They should be free to call their unions ?marriage? if they want. People should respect that choice. I?ve yet to hear a rational argument to the contrary.

But let me play devil?s advocate. Why is the use of the ?marriage? label a civil right? People say that without the marriage label, there?s inequality. But isn?t that like a non-white person saying that the only way to have equality is if they can legally be labeled white? Or a woman saying that the only way for her to attain equality is if she can legally call herself a man?

Sweden recently removed the term ?marriage? from their civil code. They have a new gender-neutral term that applies to all unions, whether gay or straight. Are all Swedes now deprived of their civil rights, since legally they can no longer use the marriage label?

The injustice, of course, is that denying the marriage label to gays only is a violation of the Equal Protection clause. But it would seem that the right to use the marriage label, in and of itself, is not a civil right.

I?m not trying to make light of the plight of gays. They have it tough, even in the Bay Area. And I recognize that despite the equality granted under California law, there?s still a lot of work to be done before there is true equality, particularly at the federal level.

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