Tuesday, May 26, 2009

Prop 8: California Supremes change tune

Even though I (along with the Register) opposed California's Proposition 8, outlawing same-sex marriage, last year, in the belief that if the state is going to sanction marriages it should sanction all that people choose to enter into, I'm not as unhappy as some that the Supreme Court chose not to invalidate the measure today. The argument used by Prop. 8 opponents -- that this was a change so momentous that it needed to be designated a "revision" to the California Constitution, requiring a 2/3 legislative approval, rather than a mere amendment, of the kind that get voted on almost every election -- was always a big reach, if not without at least some justification. The differences between a revision and an amendment turn out to be rather subjective.

It's fascinating how much the court had to contort itself to get to this decision, however. Last year it was forceful in saying that marriage, including use of the world, was so fundamental and basic a right that denying it to same-sex couples was not just unconstitutional but downright indecent. This decision said, in effect, "it's only a word, after all, and through civil unions gays have virtually all the legal rights heterosexual couples have," an argument it rejected with force (and, I thought, some eloquence) in last year's decision legalizing gay marriage.

I consider this a temporary setback for the cause of gay marriage. Today's decision brought out protestors in West Hollywood, but a right to marriage granted by the courts in the face of majority opinion against it was politically (if not necessarily intellectually) vulnerable. I think, of course, that the State should have nothing to do with marriage, that it shuld be up to individuals to deciude if they want to marry and churches to decide if they want to solemnize marriages. But the State, the great imperialist aggrandizer of power, is so intertwined in so many aspects of marriage that the best practical approach is equal treatment.

The strongest (politically speaking) way to earn this privilege is through the ballot box, not the courtroom. I think it will happen in California, and reasonably soon. Most observers expected Prop. 8 to lose last November, and there's an argument that it would have without the heavy intervention of the Mormon church (and all those evangelical blacks who came out in droves to vote for Obama while opposing gay marriage, ironically enough). I don't know if 2010 is too soon to put it back on the ballot or 2012 would be more appropriate. But gay marriage will get onto and eventually it will prevail.the ballot and

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