Category Archives: Same Sex Marriage

Proposition 8 is overturned, but it may not matter as much as you think.

As anyone with a radio, TV, or internet connection is now aware, the 9th District Supreme Court in California ruled today that Proposition 8, passed in 2008, is unconstitutional. There are a lot of opinions flying around today about what this means and how significant the ruling is, so I’ll offer my take on this and hope some of you find it interesting.

First, there’s the issue of whether this was the right decision or not. Although I don’t love some of the things the 9th Circuit court does, I do think their decision to overturn Prop 8 was the correct one. Before some of you start sending me angry messages, think this through. The court overturned Prop 8 because they felt it was unconstitutional and served no purpose other than to lessen the status of same sex couples. The excerpt from the opinion being quoted the most right now is by Judge Stephen Reinhardt, who said: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples“. Although some of his wording certainly injects some non-legal opinion into the ruling which will certainly rile people up, the core issue here is that Prop 8 really did not serve any purpose in the first place other than to deny use of the word “marriage” to homosexual couples after letting them use it previously. In addition, California already had existing domestic partnerships for same sex couples granting them “the same rights, protections, and benefits” as opposite sex couples under California law. Prop 8 didn’t affect this. Although this has also been the subject of much legal attack and debate, it highlights how muddled the situation in California apparently is. Also incredibly important to the decision was that same sex marriages were performed in California leading up to the passage of Proposition 8. These were granted after the courts overturned the law from Prop 22 in 2008, a fiasco it would have been hard for the court not to consider in this decision. The simple fact of the matter is that Prop 8 really wasn’t much different than Prop 22, but the effort behind Prop 8 was to make a previously unconstitutional law constitutional by changing the state constitution. Make sense? Although I won’t go into the motives behind Prop 22 or Prop 8 since that’s a long discussion well beyond the scope of my opinion on the ruling, I will say it doesn’t make sense for a state to decide that it’s legal for same sex marriages to occur under the constitution and strike down one law on the subject and then later say those marriages shouldn’t have happened because a popular vote changed the constitution to say the same thing as the previous law. As such, I think Judge Reinhardt was correct in saying “All parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously had possessed to obtain from the State, or any other authorized party, an important right – the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.” Whether you think it’s a “right” or not, the fact remains that Prop 8 was the same mess as Prop 22 coupled with attempting to prevent a designation being provided to new same sex couples that had already been provided to thousands of couples.

Second, there’s the much larger issue of what this means in the grand scheme of things. There are a lot of people very excited about it, saying that this is a huge step towards the nation recognizing same sex marriage. The California Attorney General and Lt. Governor were quick to call the decision historic and make predictions about its significance. Unfortunately for them, I think their optimism and opinions about the significance of this are probably misplaced or overstated. There are a few reasons that this isn’t as historic as people think, not the least of which is that this isn’t the first time California has struck this idea of marriage only being a man and a woman down. Prop 22 was struck down, and with that in mind, it was pretty logical to assume Prop 8 would suffer a similar fate if the decision behind 22’s repeal was sound. Yes, it was struck down more quickly than 22 was, but other than that there just isn’t that much more significance in this decision. It is also very important for those celebrating to keep in mind that the 9th District didn’t find marriage as a right that should be granted to same sex couples. The ruling itself actually had very little to do with the institution of marriage itself, but specifically to the application of Proposition 8 to the California Constitution. As such, there may not be much reason for the Supreme Court to even agree to take the case later on, as many Prop 8 opponents are hoping. The scope of the appeal simply doesn’t appear to be broad enough to have any real application to the national legal status of same sex marriages, so don’t get worked up thinking that you’re going to see Supreme Court action on this in the immediate future. The real reason this matters is that it is an election year. Like the repeal of Prop 22 and passage of Prop 8 stirred the issue up in 08, the repeal of Prop 8 pending further appeals could bring it to the national political stage in a big way again in 2012 and that is far more likely to have an impact on the future of these cases than the decision itself.

So to those celebrating, or those outraged, I say this: you might want to tone it down a little. The amendment was struck down for what appear to be very valid reasons, but they’re reasons pretty specific to this individual case and the state of California. Your options for seeking change on a national level, one way or the other, rest more on the politicians being put into office during the upcoming elections than this court decision.

As always, I’m glad to hear what the rest of you think on this issue!

-M

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