If you’re not aware, the legal battle surrounding California’s gay marriage ban Proposition 8 is inching towards the Supreme Court, and your prayers are very much needly. Briefly:
- May 2008: The California Supreme Court declared that the California Constitution required that gay marriage be legal. It turns out no one had noticed this part of the state constitution, because it was written in invisible ink.
- Since the Supreme Court claimed it was a (state) constitutional right, the Legislature had no power to stop them, since they can’t legislate contrary to the state constitution themselves. This left only the process of amending the state Constitution as recourse.
- November 2008: The amendment, Proposition 8, was passed amid a pretty brazen fear campaign, involving lots of vandalism, intimidation, and death threats against those who dared oppose gay marriage. I think it’s fair to say that much of the support for Prop 8 almost certainly came from disgust with gay marriage proponents’ tactics of “Support us or be harrassed, labeled a bigot, and blacklisted from working in certain sectors.”
- November 2008: Immediately after Prop 8 passed, there was a case (Strauss v. Horton) alleging that it was illegal under the state Constitution (there were other legal issues involved, but this is the the crux of the argument). What makes this bizarre is that Prop 8 is an amendment to the California state Constitution, so had the California Supreme Court held the Constitutional amendment to be itself unconstitutional, the people would have had no recourse.
In this case, it doesn’t really matter one’s views on gay marriage at all. If the Supreme Court can make rulings which only it can reverse, it suddenly becomes an unstoppable power, unanswerable to the executive and legislative branch, as well to the populace themselves. Plus, if Constitutional amendments can’t contradict exsiting parts of the Constitution, it becomes impossible to change outdated parts of the Constitution — for example, the 16th amendment allows income tax, which would otherwise be unconstitutional under the US Constitution. And generally, if something is a constitutional amendment, it’s b/c it would’t work as mere legislation. So an anti-Prop 8 ruling here would have, without exaggeration, undermined much of the American democratic system.
- May 2009: Fortunately, the California Supreme Court was sane enough in Strauss v. Horton to say that while it obviously was pro-gay marriage, the people had spoken.
- May 2009: Three days before the Strauss ruling, the American Foundation for Equal Rights (AFER) filed Perry v. Schwarzenegger in federal court, alleging that Prop 8 is unconstitutional under the US Constitution. Bush’s old Solicitor General, Ted Olson, is leading the gay marriage charge on this one (he’s teamed up with his opponent from Bush v. Gore, David Boies), and they have massive Hollywood backing – Rob Reiner and American Beauty producer Bruce Cohen are AFER board members.
- January 2010: Perry v. Schwarzenegger is now headed to trial in the United States District Court for the Northern District of California in San Francisco, Judge Walker presiding. It looks like it’ll be a circus. Walker’s decided to allow all sorts of testimony about the impact of gay marriages, about gay parenting, and about all sorts of issues which seem to me to be a bit unrelated to the question of whether Prop 8 is constitutional or not. After all, if the Constitution does forbid restricting marriage, because it’s a civil right (or even human right), it seems sort of irrelevant if gay marriage is harmful or not. Conversely, if the Constitution permits states to control who you can and can’t legally marry, it seems irrelevant if gay marriage is harmless in the eyes of Judge Walker.
These details about the upcoming trial are troubling. Walker is a Bush, Sr., appointee, but he seems like more of a fiscal conservative and social libertarian than anything else: he’s called for the legalization of drugs, for example. My guess is that he’s (1) going to enjoy 15 minutes of fame with a televised trial, and (2) he’s positioning himself to rule that the state of California simply has no compelling reason to restrict marriage in this way. I think he’s going to stop well short of saying “marriage is a human right, period,” for obvious reasons. If marriage is an intrinsic human liberty of some sort, there’s no grounds for denying it to incestual couples or polygamists, provided all parties are consenting adults.
By passing what will be praised in the media as a “moderate” ruling, Walker can make gay marriage a constitutional right (pending, of course, appeal to the US Supreme Court, which will happen regardless of his ruling), while trying to keep the door shut to still-taboo incenstual and polygamist relationships. I very much hope I’m wrong on this one, but that’s my prediction.