Proposition 8: Unconscionable and untenable

Important note: While I am thrilled to see that my fellow gay friends will one day be able to marry, right now I have no personal interest in getting married. What is important to me is the fact that a group of people were being denied rights that are enshrined in California's constitution - clearly an unconscionable and untenable situation. Additionally, I fail to understand why this is such a big deal; how can allowing same-sex marriage harm society? The way some of these idiots are behaving, you'd think the end of the world is nigh! (See cartoons at end of this post.)

Background for my foreign readers: Recently, an election in California resulted in the passage of Proposition 8, by a mere 2% majority. Prop. 8 enacted a constitutional amendment which banned same-sex marriage in California, effectively removing the rights of a group - talk about a step backwards! The map on the right shows which counties voted for same-sex marriage (red ones) and those against it (green) - it's interesting to note that the coastal counties are clearly the most progressive (the two inland ones are Mono and Alpine, just south of Lake Tahoe, a large gambling mecca). The result was challenged in court primarily on the principle that this set up an inequality between two groups, which is unconstitutional. It's a bit confusing, but if you are "pro-Prop. 8" you are against same-sex marriage and, of course, if you are "anti-Prop. 8" you are for same-sex marriage! The result of the trial? The proposition was overturned, which means the constitutional amendment no longer applies. So: "pro-Prop. 8" lost and "anti-Prop. 8" won!!! (However, the decision has been stayed for a while to allow for the inevitable appeal, so no marriages quite yet.) You can read more about Prop. 8 here.

Yes, indeedy - much partying in the gay ghettoes around the country last night - and for good reason: Proposition 8 has now been overturned! The judge, Vaughn Walker (who is gay) presided over an extremely thoughtful and thorough trial. Unfortunately for the opposition (the "Yes on 8" folks - those against same-sex marriage), they were only able to provide a very weak case. That, of course, is because there really is no solid basis for this silliness. The judge tried really hard to give both sides a fair shot, and, imho, did a really good job.

Today's Huffington Post writes about it here from the viewpoint of whether it was wise to make this bold a move as quickly as they did - an interesting argument. Also, I especially like this sentence: "Piece by piece, the 138 page decision tears apart the logic of the traditional marriage movement and exposes it as the offensive and homophobic club it really is."

You can find the judge's ruling here (PDF) and here (HTML). It's 138 pages long, and, so far, I have only skimmed it. Some interesting bits I found:

On equal treatment, and the "inferiority" of gay people: "Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. FF 47-50. Proposition 8 violates the Equal Protection Clause because it does not treat them equally. [...] In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate." (Underlined emphasis mine.)

And, the all-important conclusion: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional." (Again, underlined emphasis mine.)

So there we have it! Now, the case will go to the 9th District Court of Appeals who are sure to uphold the decision - I say this because the appeals process only allows analysis of the final judgment; it's gonna be tough to argue against that! Then, it goes to the U.S. Supreme Court, who will more than likely accept the case. We will probably end up with a 5-4 decision in this conservative court, but the big question is who will get the 5 and who will get the 4?!

The 5-4 question is an interesting one. Justice Anthony Kennedy was appointed by Reagan, and is generally considered to be conservative. However, he has been known to side with liberals, particularly on social issues, and therefore is the wild card or "swing vote" here. It should be noted that he voted correctly (you know what I mean!) in the recent Lawrence v. Texas case involving legalization of sodomy, and was also a proponent of Roe v. Wade. So, I'm gonna be an optimist and say that he will vote "Aye!" for same-sex marriage. Here's hoping...