Did California Fuck It Up For Everybody?

In a news article today on gather.com Bluprnt z. writes that there could be an incredibly unforseen result of Proposition 8: the California Supreme Court could rule that Marriage in it's entirety is unconstitutional and scrap the State's Marriage Laws in their entirety.

Wouldn't that be a hoot!

I make no secret that I do not entirely support Gay Marriage. I believe that Marriage is a religious ceremony, and as such, various religious institutions have the right to regulate it as their scripture and beliefs demand.

I do not believe that Marriage is something that States (or the Federal Government) should be involved in at all. There is no State Religion in our country, and as Marriage is a religious institution, it has no place in Governance; to include or exclude anybody in it is not for Courts or Governments or Legislatures to decide. It's not even up to the People. It properly belongs in the perveyance of Religious Leaders. If you don't like what your religous body has to say about Marriage, then perhaps you're not going to the right church, coven, grove of oak trees, mosque, temple, et cetera.

The potential in California is for all State-sanctioned Marriages to be ruled unconstitutional, and here is why:

1. Revision It Is Not: If the California Supreme Court holds that the proposition is a simple amendment instead of a revision, it will need to act like an amendment. Therefore, it can not make major changes to the constitution. Since equal protection of the laws is a central tenet in the California Constitution, those protections would necessarily need to remain intact. The proposition would not be able to be interpreted as an exemption of equal protection for gays and lesbians.

2. Proposition 8 Simply Defines a Term: In oral arguments before the California Supreme Court, the proponents of proposition 8 claimed that it did not affect any rights of gays and lesbians, and that the proposition merely defined that marriage was to remain between a man and a woman. Proposition 8 doesn't require that the state sanction 'marriage' or instruct the legislature that marriage laws must only include a man and a wife. This is particularly important. When ruling on the effect of a constitutional phrase, it is interpreted narrowly when it limits rights or freedoms.

3. Suspect Class: In it's decision in re: Marriage Cases, the California Supreme Court determined that gays and lesbians are a suspect class. This means that they have historically been the subject of discrimination and are do not have sufficient political power to address the discrimination. In application, this finding requires that all laws which limit the rights of gays and lesbians are assumed to be discriminatory and are reviewed using 'strict scrutiny.' Less than 30% of laws that are reviewed using strict scrutiny standards withstand that test. This is a very important and unique finding. Since Proposition 8 was written prior to the decision, it could simply not have anticipated or addressed this issue.

4. Separate is not Equal: In re: Marriage Cases, the California Supreme Court had ruled that there was no compelling interest for the state in establishing a separate designation for gays and lesbians (domestic partnership) even if the rights established were exactly the same. They note that denying gays and lesbians the respect and dignity of a common designation, caused appreciable harm to gays and lesbians and relegated them to 'second class citizens.' The supreme court even noted that upon determining that the marriage laws were discriminatory, they had two options; either extend the rights of marriage to gays and lesbians, or strike the marriage laws in their entirety.

This means that ALL Marriages, by their nature, cannot be recognized by the State. Instead, another term ("Civil Unions", anybody?) will have to be codified into State Statutes to cover ALL citizens, regardless of sexual orientation.

My perfect solution. Keep Church and State separate. If you want a legally binding social contact, get one through the State. Call it Civil Unions, Domestic Partnerships, I really don't care. Call it Marriage? No. If you want one of those, talk to your clergy. If they won't do it, then find another who will; there are plenty of open-minded Imams, Pastors, Preachers, Priests and Rabbis who will.

Amazingly, something wonderful might just come out of this mess in California after all. As Blueprnt Z puts it,

This is not the outcome that was envisioned by the citizens of California, but is perhaps the most likely result when, as Prop 8 attorney noted, the 'people rule themselves unwisely.'

At the very least, it's certain that those who wish to emulate Prop 8 in their own states, may very well take a moment to rethink what they may unintentionally let out of Pandora's Box.

Fucking Brilliant!