Wednesday, May 6, 2009

It's coming: preparing for the California decision

By law, the Supreme Court of California has 90 days to release its decision on the Proposition 8 case which it heard in March. That date is fast approaching, in early June. (However, they can release the decision at any time.) They will give us 24 hours warning that the decision is coming at their website. There is a rumor that they will release it tomorrow (update, it is not listed on the docket for tomorrow, Opinions are released on M and Th at 10am and announced on the website the day before).

As we've discussed at length here, there are two questions.

First, does the vote of a majority overrule the rights of a minority? That is, was Prop8 legal on the ballot, and even eligible for popular vote? Ken Starr admitted during arguments that the Pro-H8 view was that any minority right was at the whim of the voters. He actually said no rights are inalienable. The rights of religious groups to practise their faith, or of ethnic groups to vote and fully participate, are, according to Ken Starr, completely reversible. It's useful to remember that if inter-racial marriage, allowed by the CA courts in 1948, and by the US Supreme Court in 1967, had been put to the voters, it would not have become legal until around 1994. It wasn't until then that a majority of Americans felt it was "okay" for blacks and whites to marry. But we don't put the rights of the minority to mob vote, especially when the election is funded by overt religious interests. Do we?

The second question is, are the marriages that were fully legal between May and November of 2008 still legal? Pro -Prop8 advocate Starr says those marriages (which include mine) ceased to exist legally on 5 Nov 2008, making this a retroactive decision. The court seemed less comfortable with this argument.

The general consensus following the arguments in March was the the court was against us on the first issue, and possibly for us on the second issue.

But look what's happened since then. Iowa. Vermont. New Hampshire. Maine. Washington DC. Joining Massachusetts and Connecticut, with New Jersey coming along. And unexpected voices in favor of gay rights. And a recent poll suggesting Americans favor gay marriage by a narrow margin .

Will the California court temper its decision with this groundswell? Some think so. There has been a major change in the climate. Let's also remember that the California legislature passed a pro-gay marriage bill TWICE before the initial decision, which was vetoed by the governor, on the grounds that the court should rule first. The court subsequently ruled, in May 2008, that all citizens have a fundamental right to marry the person of their choice. Very similar to the words used in the landmark Perez v. Sharp decision of 1947, that overturned California's anti-miscegenation laws. It would really be unprecedented for fundamental rights to be eliminated by a mob vote, but of course that doesn't mean it won't happen.

Still, we have work to do. We must assume that there will be a new ballot initiaitve in 2010 regardless. You can support that, and learn more here, at EQ-CA and here, at the Courage Campaign .

We have to respond to the decision, whether pro or con. If you are in California, you can participate here. Many cities will have an event, whether to celebrate or to protest.

We have to claim our rights, and meet in the middle the weekend after the decision, in Fresno. Yes, San Joaquin friends, you are once again on the front line leading the way for justice.

I hate the fact that I still have this insistent little bird of hope. It's tiny, just a little thing. The realist in me expects the worst, and the problem with having a little bird of hope is that it is so agonizing when it is killed, yet again. It is so much worse to feel its death than not to have heard it to begin with.

But agony of waiting is almost over. Work and life have suffered enormously from living in this limbo. Let's get it over with.

Cross posted at Daily Kos and Streetprophets


David |Dah • veed| said...

As we hide in our homes, waiting for the government to tell us we can come out of hiding, we are mightily praying for you IT.

University and high school students have been given the All Clear to return to their classrooms today. But teams are still fumigating and sanitizing primary and secondary schools. Those children return to class next Monday.

Restaurants and cinemas are carefully re-opening to clientele. Soon there will be more folks on the streets, but I fear face masks shall be a national trend for some weeks to come.

Waiting for the Supreme decision here as well.

IT said...

Apparently it won't be tomorrow, as the published list does not include this case. But opnions are released on Mondays and Thursdays at 10am, and announced the day before, so keep looking.

JCF said...


I'm mightily p*ssed off that PropH8 was allowed onto the ballot in the first place. The same arguments being made (by our side) AFTER its passage, were also made BEFORE its passage.

If any dumb*ss majority can vote to strip the rights of a minority, whither the concept of "rights" at all? Why not put the "Bill of" to a vote 200 years later?

[But if it's upheld: y'know, I think the Mormons are disliked just enough by so many---even if for the WRONG reasons---that an initiative to (say) strip them of their tax exemption, or worse, just might be passable. Let's see how THEY like the Tyranny-of-the-Majority! (J/k. Sort of.)]