Proposition 8, by Ronnie George and the Supremes

Playing in the background: Lisbeth Scott

I hate to tell y'all this, but the Proposition 8 decision rendered yesterday by the California Supreme Court is neither the beginning of the anti-gay Apocalypse nor an affirmation of the Christian values that hold our nation together. Since all heck broke loose Tuesday morning around noon Texas time, I've read scads of articles, and so, I imagine, have most of us. Here's just a quick sample: Former Presidential candidate Gary Bauer on Tuesday said that the California state Supreme Court ruling to uphold Proposition 8 was "a victory for democracy and common sense."(prnewswire.com). San Diego mayor Jerry Sanders (no, not the comedian) said, "It's obvious that neither justice nor equality were on the court's agenda today." There were some other quotes I was gonna use, but most of them weren't bloggable, so let's get right to the meat of this thing. What did the decision actually say?

Disclaimer: I am not a lawyer nor do I play one at work. Any material in this article not attributed to an external source constitutes my personal opinion only and should not be construed as offering legal advice or being the definitive word on anything whatsoever. Furthermore, I wasn't paid for writing this (though I might ask The Network to double my salary after this is over.) And I think that should satisfy the Texas high sheriffs, so let's move on.

First of all, if you haven't already done so, click on the Prop. 8 link above and read the darn case, already. If you don't wanna read the whole thing, read about the first 13 pages; that will tell you what you need to know. Reading court decisions is highly recommended by yours truly, especially if you come across a headline like, Court Awards Custody of Son To Convicted Rapist or something else that doesn't make any logical sense. In the age of the Internet, this is easy: Get into the article, find the name of the case and Google that sucker (helps to add the state and the word "decision"). Why? Because a court decision that can run to scads of pages is hard to sound bite in two paragraphs. If the decision sounds crazy, it's probably because the reporter left out about 80% of the facts. Add in the facts and suddenly it's more logical, even if you don't agree with it. I have, indeed, read most of the 167 page decision on Strauss v Horton because, unlike Fox News, I like to know what I'm talking about. Even if I'm wrong. And I'm not saying I am.

Item One: Revision v Amendment

The main argument in the Strauss case was that Prop. 8 is not an amendment to the California constitution, but a wholesale revision of the silly thing. There's about fifty-odd pages devoted to the difference between an amendment and a revision, to say nothing of why that's so important, and I won't go into all of 'em here. The Court says that the reasons Prop. 8 is an amendment and not a revision are as follows:

1. Prop. 8 does not entirely repeal or abrogate the aspect of a same-sex couple's state constitutional right of privacy and due process.
2. Nor does Prop. 8 fundamentally alter the meaning and substance of state constitutional equal protection principles.
3. All it does is carve out a limited exception reserving the designation of the term "marriage" to opposite sex couples. It doesn't disturb any of the other "extremely significant substantive aspects of a same-sex couple's constitutional right to establish an officially recognized and protected family relationship and the guarantee or equal protection of laws." (Page 7.)

This doesn't mean the court thinks that "marriage" as a designation isn't important. They do. They go on and on about this on pages 36 et seq. What they're basically saying here is, calling it an orange don't make it a tangerine. Same sex couples have the same rights as before. They just can't be called married, is all.

Sound illogical? Well, maybe. Words matter, and a "domestic partnership" ain't a "civil marriage". But, if it walks like a duck, and talks like a duck, and swims like a duck, it's probably a duck even if you're stuck calling it an Anas platyrhyncha.

By the way, the Court had settled the question of revision vs amendment in a challenge to the ballot language before the November election. Anybody who's surprised by this finding wasn't paying attention.

Item Two: Just Because It's Mean Doesn't Make It Unconstitutional.

One of the other arguments against Prop. 8 was that a minority group's constitutional rights cannot be diminished by a majority vote, according to "an assertedly fundamental constitutional principle" that the petitioners evidently forgot to elaborate. (Page 8.) "Petitioners, however, cannot point to any authority supporting their claim . . .", probably because there isn't one. Some states do in fact have rules about restricting minority rights through constitutional amendments; the Court names Massachusetts, Mississippi, and Maine, among some other states that do not start with the letter M. But, not so California.

In fact, California voters have restricted the rights of minorities by popular vote several times, most notably in 1894, when voters restricted the right to vote to people who were literate in English. (Page 98.) Yep, if you couldn't read, or if you only read in a language other than English, the good folks of California banned you from voting in their elections. And guess what, that law stood until 1970, when it was finally overturned not because of California law but because of the Federal Voting Rights Act. Yikes.

It's hard to imagine a more basic right of a minority than the right to vote, but here's another one anyway: The right not to be killed. In 1982, voters reinstated the death penalty for certain criminal defendants. Where the right to life crowd was when this one passed, I couldn't tell ya, but there it is. (Page 99.)

Item Three: Proposition 8 doesn't violate the separation of powers doctrine.

This seemed like a long shot to me, but some of the petitioners and the state Attorney General stated that Prop. 8 violated the "separation of powers doctrine" by using the political process to undo a judicial decision. The Court said, in effect, "Well, duh, that's what a constitutional amendment is all about." (Page 10-11.) It also accused the Attorney General of doing sloppy research (page 11) by relying on passages from a few early court decisions, since discredited, about "natural law jurisprudence." Now, see, if he'd had a great paralegal like me, he wouldn't have had that problem.

Which brings us to Item Four: So, okay, are Jen and Joan still married or not?

Short answer: Yes.

Long answer: Yes, but the reason they gave doesn't make any logical sense.

Much longer answer: The 18,000-odd marriages between same sex couples that took place between June and November of 2008 (for pics from mine, click here) are still valid, even though Prop. 8 (which the Court just upheld) reads as follows: "Only marriage between a man and a woman is valid or recognized in California." (lots of pages; Page 18, for starters.) "Well established legal principles" (page 13) state that Prop. 8 does not apply retroactively.

Quoting an older case, (p. 129), the Court determined that "in the absence of a clear . . . intent to the contrary. . . enactments apply prospectively," which is to say, from this date forward, and not applicable to anything that happened before that. Neither the Attorney General's official title and summary, nor the legislative analysis of the measure said anything about going back in time and undoing marriages. (Page 132.) Nor did the Voter Information Guide for the November 2008 election, which in a rebuttal to an argument against Prop. 8, stated: "Your YES vote . . . WILL NOT take away any other rights or benefits of gay couples." (Page 40.) (Ironically, it was the anti-gay marriage crowd that wrote this thing. I think that's what we call an inadvertent oopsie.)

The Court also said that to retroactively undo a bunch of marriages would be a serious violation of the due process of law (Page 133). Why? Because changing who's eligible to marry doesn't have any effect on the folks who have married already. The example the Court gives (in reference to one of the cases they cite) is, if the state raises the marriage age from, say, sixteen to eighteen, that doesn't erase the marriages of folks between sixteen and eighteen who got married before the age was changed.

Responding to the argument that, "But the voters must have meant to undo the existing marriages, otherwise that whole 'between a man and a woman' and 'valid and recognized' part won't make any sense," the Court said, in essence, "Not our problem." In fact, they said that a lot, all the way through this decision. In the reading of legalese it's sometimes hard to find tone, but I get the distinct feeling that the Court was a little pissed off at being dragged into this argument again. Maybe this decision was its way of saying to the state of California, "Fine. You guys wanna undo one of our decisions with a constitutional amendment? Go right ahead. Here's whachoo get." Hubris maybe? I dunno, but I do note that they also said "not my problem" about same-sex marriages performed in other states. (A footnote someplace. I forget where - it's getting late and I'm tired.)

So what does all this mean, you ask?

Well, this means that California will be years trying to straighten out the details about how you cope with a population of A. married same-sex couples and B. same-sex couples that aren't married but must by law be given the same rights as C. the married same-sex couples and D. the opposite-sex couples who are married. If I were on the Bureau of Vital Statistics, I might be tearing my hair out right about now. And if you start thinking about the ramifications, say, in Family Court, license departments, corporate benefit packages, spousal leave for illness, adopting kids, etc., etc., etc., you could get a serious headache. Which, as the Court tells us, is Not Its Problem.

And how Jen feels about this is:

1. Confused.
2. Annoyed.
3. Cheated. If Joan and I had our marriage invalidated, we could have sued the state of California for fraud and maybe at least collected reimbursement for that ghastly dinner at El Prado.

But I am glad I still have a wife. There's nothing like the threat of being unmarried by seven people you've never met, even if we've been on this treadmill since roughly 1999. Still, if I'm one of only 18,000 people who merit this distinction, I might well be an endangered species. Perhaps I, like the spotted owl, will get federal protection. One can always hope.

Anyway, I hope this admittedly long-winded article casts some light on things. But if not, I'll take a page from the Court and tell you that it's Not My Problem.