Fairness Not the Most Important Issue?

Nothing in the May 15, 2008, California Supreme Court ruling stated that any citizen had to marry a gay person, or that any church or denomination choosing not to had to perform a marriage ceremony for a same-sex couple. The decision simply gave equal rights to any couple of legal age to be married in the State of California.

Some 18,000 same-sex couples were married between that day and November 4, when 52 percent of voters approved Proposition 8, the state constitutional amendment once again prohibiting same-sex marriage in California.

The words I am writing go to the printer March 6, the day after the court heard oral arguments on both sides of the issue. It will have 90 days to mull over the arguments, and decide on the constitutionality of the proposition. That said, about Pride time, we can look for a decision on whether the 18,000 are still married, and whether the next 18,000 can begin to apply for licenses.

Groups like the National Center for Lesbian Rights (NCLR), Lambda Legal, and American Civil Liberties Union will be arguing that Proposition 8 is invalid, because California has established safeguards prohibiting the underlying principles of the state constitution from being changed by a simple majority vote.

March 6: New York Times writers John Schwartz and Jesse McKinnley reported that yesterday, Justice Joyce Kennard asked NCLR Legal Director Shannon Minter, one of the lawyers opposing Proposition 8, “Is it still your view that the sky has fallen in as a result of Proposition 8, and that gays and lesbians are left with nothing?”

Minter’s response was that if the court were to uphold Proposition 8, same-sex couples would have “our outsider status enshrined in our constitution.” The right to marry, Minter added, was inalienable. Kennard argued that the people’s right to alter their constitution was inalienable as well.

However, Kennard did consider the plight of the 18,000 same-sex couples who had married legally between May and November 2008, resisting the idea that those marriages should be invalidated.
Kennard admitted no evidence existed that the voters understood thousands of people and their families “would, after passage of Proposition 8, be unmarried.”

Unmoved by this possibility, Kenneth W. Starr, Dean of Pepperdine University School of Law and controversial former US Solicitor General, spoke for the supporters of Proposition 8: “Under the California system, the fairness of an initiative is not the most important issue. The people are sovereign,” he declared, “and can do unwise things.”

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