However, the ruling will not invalidate the roughly 18,000 same-sex marriages performed before November 5, 2008, the day when Proposition 8 officially amended the California state constitution.
Some readers may benefit from a summary of the events leading to the decision announced today. Before Proposition 8, the California state constitution did not specifically bar marriage between same-sex couples. However, California did have laws that were codified outside of the state constitution that did bar the issuance of marriage certificates to same-sex couples. It is not permissible for any law in California to contradict the California constitution, and the same-sex couples took the position that the laws denying the issuance of marriage licenses to them contradicted the California state constitution's guarantee of, among other things, due process, which requires that the law is applied in the same way to all people without favoritism.
The California state supreme court agreed.
As a result, it became legal to issue a marriage license to a same-sex couple in California.
Then, the opponents of same-sex marriage sought to amend the California state constitution to limit the application of the word "marriage" to relationships only between one male and one female. They succeeded in this goal when slightly more than 50% of Californians voted in favor of Proposition 8 on November 4, 2008.
As a result, it again became illegal to issue a marriage license to a same-sex couple in California.
After the California state constitution was amended by Proposition 8, proponents of same-sex marriage challenged Proposition 8 by asking the California supreme court to issue a ruling stating that Proposition 8 was invalid because it was not an amendment that merely added a new law to the state constitution, but rather a revision that fundamentally changed the state constitution. Unlike an amendment, a revision to the state constitution requires a more onerous process to effect.
The proponents of same-sex marriage also argued that, even if Proposition 8 was an amendment that only modified the state constitution without fundamentally changing it, Proposition 8 should still be invalid because it took away the right of same-sex marriage which the state supreme court previously ruled should be granted to all Californians under the state constitution's guarantee of, among other things, due process.
In today's ruling, the state supreme court disagreed with both of those arguments. On the first argument, the court ruled that Proposition 8 was not a revision because it did not fundamentally change the constitution. It merely adds one new law to the state constitution rather than re-writing the existing laws that make up the state constitution. Also, it did not take away the right of due process for same-sex couples since it did not limit the right of same-sex couples to obtain all the legal benefits of marriage. It only limited the legal application of the word "marriage." In other words, a same-sex couple can still obtain all the legal protections for their relationship that an opposite-sex couple can obtain, but the same-sex couple's relationship cannot be called a marriage in any legal documents, meaning that issuing a marriage license to a same-sex couple would continue to remain illegal.
With respect to the argument that Proposition 8 is invalid because it takes away a right previously ruled as being granted by the state constitution, the court ruled that to do so is legal. Today's ruling said that even a right as basic as free speech can be taken away from Californians by an amendment to the state constitution because the California state constitution does not prohibit such use of an amendment. The opinion of the court points out that, unlike the California state constitution, the constitutions of other states do make it more onerous to take away rights currently guaranteed by their state constitutions, and the people of California can amend their constitution to add a similar level of rigor.
The ruling was 6 to 1. The dissenter was Justice Moreno, who took the position that Proposition 8 was indeed a revision, fundamentally altering the state constitution by taking away the right of due process from same-sex couples.
Those of you who wish to read the court's opinion for yourselves can do so by going to: http://www.courtinfo.ca.gov/opinions/documents/S168047.PDF
My position is that same-sex marriage should be legal. I hold this position because I have not heard any convincing argument to the contrary. All arguments against same-sex marriage fail to provide sufficient evidence to support their position that bans on same-sex marriage will yield a net benefit to the public. To the contrary, I am convinced by the proponents of same-sex marriage who argue with convincing evidence that bans on same-sex marriage yield a net loss to the public, both socially and economically.
I also believe that the right to marry is a basic civil right that need not be proven by statistics of net social and economic benefits, but that should be granted to all Americans equally regardless of gender.
Needless to say, I am disappointed in today's ruling. However, I am heartened by the fact that the arguments in this case were based on procedural questions rather than character attacks on gay, lesbian and bisexual persons.
Further, I hope that the United States Supreme Court accepts a case that questions the constitutionality of bans on same-sex marriage and rules to end such bans once and for all at both the state and federal levels on the principle that banning same-sex marriage amounts to discrimination on the basis of gender. I do not think that gay, lesbian and bisexual persons ought to earn the right of marriage through legislation based on the popular opinion of the legislators' constituents because freedom from discrimination is a right to which everybody is entitled as a matter of principle, regardless of the opinion of the people.
If I may digress for a moment, I think that the argument that discrimination against LGBT persons is actually gender discrimination is valid in its application to all other LGBT issues. For example, under the law known popularly as Don't Ask Don't Tell, the United States military's ban on open LGBT soldiers, if a female soldier in Iraq tells her colleagues that she has a girlfriend back home, the female soldier will be fired. If the soldier who said that there was a girlfriend back home was a male, he would not be fired. Both soldiers said the same thing, and yet one was fired because she was a woman saying such a thing. It is not the thing being said that caused the firing. Rather, it was the gender of the person saying it that caused the firing.
I am not suggesting that the gender discrimination argument is the secret weapon that will annihilate all laws that discriminate against LGBT persons. Would that it were, but reality is far removed from that fairy-tale scenario. Still, it is a very simple yet logical argument that can be added to the mix, and I proferred it for that reason.
In the meantime, practicality demands that the lower road of appealing to public opinion be taken to achieve the goal of ending bans on same-sex marriage and other policies discriminatory to LGBT persons. In this arena, I am also heartened based on the statistics that show a trend towards acceptance of the panolpy of pro-LGBT issues, including same-sex marriage.
Surveys have been released indicating that if Proposition 8 were put to a vote today, it would fail. However, it would not fail by much. When a survey's margin of error is taken into account, we see that public opinion is essentially divided in half on same-sex marriage in the state of California, and it would be embarrassing and demoralizing indeed if a pro-same-sex marriage amendment was put to the vote and lost. The best strategy for changing the public's opinion in California, and in all states for that matter, is letting the public see real LGBT people, whether it be on television or in real life. The favorable trend in public opinion on LGBT issues is the result of the public being exposed to actual LGBT people, as opposed to slanderous stereotypes. The process is symbiotic and self-reinforcing. The lives of all people are improved through greater understanding of their fellows, and as the environment becomes less hostile, more LGBT people come out, creating more opportunities for further reduction of hostility.
If equality for LGBT persons, including marriage equality, is reached through this latter method, I won't be grumbling.
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