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Thursday, December 18, 2008
What's Next?
Is the current phase of the same-sex marriage movement over? More specifically, have advocates for marriage equality lost this round?
I worry that the answer might be yes. California's Prop 8 is a major blow to the marriage equality movement. Of course, the California Supreme Court still has to rule on the legality of Prop 8, and my sense is that the court could conceivably invalidate it.
But Prop 8 is not really an aberration. By my count, at least forty-five states have some kind of law banning same-sex marriage (see here). Some of these laws can--and I think will--be overturned or repealed. But most of them will remain on the books for the foreseeable future.
So what's next? Is it time for the marriage equality movement to regroup and reconsider its strategies?
In the meantime, here's hoping for a victory in Iowa.
Posted by Zak Kramer on December 18, 2008 at 12:28 PM | Permalink
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Comments
Dumb though it may be, Proposition 8 does not violate the state constitution.
It is the farthest thing possible from a constitutional revision, and not even state Attorney General Jerry Brown claims it is.
Instead, Jerry Brown claims it violates the state constitution -- of which it is a part! -- by limiting a fundamental right contained in the very same constitution.
Under that logic. many important, well-settled provisions of the state constitution would be invalid.
For example, California's death penalty was put there by California voters, who wisely enacted a ballot initiative that reinstated the death penalty after the liberal state courts of the 1970s declared the death penalty a violation of the state constitution.
California voters have limited many other forms of social engineering by ballot initiative, like forced busing, that California courts in the 1970s imposed based on the theory that they were somehow mandated by the California Constitution's analog to the Bill of Rights. (The U.S. Supreme Court upheld one such ballot initiative in the 1982 Crawford case).
I publicly opposed Proposition 8, but Jerry Brown's "cure" for it is worse than the disease.
Posted by: Hans Bader | Dec 23, 2008 3:15:38 PM
On the invalidation of Prop 8, the major theory being invoked against the measure is the revision/amendment distinction -- that Prop 8, because it simultaneously alters a fundamental right (marriage) on the basis of a suspect classification (sexual orientation) constitutes the sort of fundamental constitutional change that should be made through the more deliberative method of legislative referendum rather than initiative.
The revision/amendment doctrine is notoriously slippery -- even more so than the single-subject rule, its close cousin. So no one can make a reliable prediction based solely on doctrinal coherence: The Court could rule either way and still arguably be acting as good-faith interpreters. (I am much more sympathetic to the claim that Prop 8 is an illegal "revision" than many -- but the opposite position, I think, would be plausible).
So the question is whether the 4-3 split in the California Supreme Court's Marriage Decision will hold when the issue is whether the People of California ought to have proceeded by referendum rather than initiative. Based on her track record in general, I am thinking that Justice Kennard is the key swing vote in the 4-vote majority. But I defer to more experienced CA-court watchers.
Posted by: Rick Hills | Dec 18, 2008 12:47:53 PM
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