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eclipsegryph. Our governor is apparently coming out against Prop 8. Perhaps not in the most articulate of ways, but...in this moment, I'm really proud.
http://www.upi.com/Top_News/2008/11/09/Calif_gov_We_will_maybe_undo_Prop_8/UPI-22871226279859/
Alright, so I am tired, sick and cranky right now, so this is probably not the moment to go into heavily charged political waters. But. Vis. the Prop 8/gay marriage issue, a couple of points become clearer. Firstly, there apparently exist some issues regarding whether Prop 8 can legally amend our state's constitution. I certainly hope this is true, since legally it seems counter-intuitive and sloppy as hell (what? You mean, we can amend the *constitution* based on such a narrow margin of the popular vote? Somehow this seems far too easy). Mind you, I am not and never want to be a Constitutional lawyer, and I have no expertise here. I plan to research it some because boy am I ever interested in this.
The second point, again as an attorney, is that in my opinion the gay marriage ban violates our Federal Constitution, and significantly. I could do this in a far more detailed way, but here are the bullet points:
We have this thing called the Fourteenth Amendment in our Constitution. It grants equal protection under the law to all U.S citizens, and abolished slavery. Text here: http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
The right to make contracts is protected by the law, one of those things the fourteenth says we all get to do. Contracts are one of the major areas of law, in fact. Marriage is a contract, and a common one. (I ranted on that piece a few posts down). The fourteenth amendment applies. It was applied specifically to marriage contracts in Loving v. Virginia, http://en.wikipedia.org/wiki/Loving_vs_virginia, which overturned Virgina's statute banning interracial marriages. And if you want to see how far we've come, and how quickly, go read that one, guys.
The Fourteenth Amendment has been applied to gays in the past, specifically in the large area of employment discrimination law, in which gender is a protected class. Gender in this context is very broad, and includes pregnancy (you can't fire her because she got pregnant, or him because his wife did and he needs leave) and sexual orientation (can't fire you 'cos you're gay). There's a lot of case law on this. Much of it came from California. Much of it was both chilling and exhilarating to read, as was Loving.
Put all of this together, and gay marriages should be protected under the Fourteenth. We batted this around a lot in my Con Law classes (which are not missed, but in some cases fondly remembered. I had a fabulous Con Law prof). My professors were very much of the opinion that the question of whether gay marriage was protected under the fourteenth had to eventually go to the Supreme Court, and that they would have a heck of a time denying equal protection and equal marriage. There is no legal grounds to deny gay marriage that I've ever been shown (legal folk in the audience, feel free to play devil's advocate here and come up with a sound constitutional argument against).
Gays are a protected class, marriage is a legal contract, the line's easy to draw. It seems so damned obvious, but it's going to be a big, emotional thing and an enormous uphill battle, for no other reason than that homosexuality scares a lot of people, and is not the traditional mating structure in our country. People tend to hate that which they think they aren't, or don't know: human tribalism at its worst, and the root of bigotry. That and we've conflated spiritual and legal marriage, which muddies the issue so much in the mind of the average person that half the time neither side even knows what it's talking about.
In my con law classes, there was a lot of speculation and talk about when this issue was going up to the Supreme Court. The Supremes need a conflict at the state level to bring an issue up, and, well, we have one right here in CA right now. If Prop 8 doesn't get overturned as being somehow contrary to the proper way to amend CA's constitution (and I certainly hope so) and decided on those grounds, I suggest that we are about to see this thing go up for decision.
It's not a certain outcome, even though it certainly looks like it should be, and we can't be complacent. But I have hope...I mean, if Arnold, of all people, is expressing regret over the constitutionalized bigotry that is 8, anything can change, right? To look back at the facts of Loving is to understand how incredibly fast social change can happen, and the place of the law in that cultural process. We've just seen some of the fruits of our country's long move away from bigotry in this election. I will be watching the coming process with fear, and excitement, and hope.
eclipsegryph. Our governor is apparently coming out against Prop 8. Perhaps not in the most articulate of ways, but...in this moment, I'm really proud.http://www.upi.com/Top_News/2008/11/09/Calif_gov_We_will_maybe_undo_Prop_8/UPI-22871226279859/
Alright, so I am tired, sick and cranky right now, so this is probably not the moment to go into heavily charged political waters. But. Vis. the Prop 8/gay marriage issue, a couple of points become clearer. Firstly, there apparently exist some issues regarding whether Prop 8 can legally amend our state's constitution. I certainly hope this is true, since legally it seems counter-intuitive and sloppy as hell (what? You mean, we can amend the *constitution* based on such a narrow margin of the popular vote? Somehow this seems far too easy). Mind you, I am not and never want to be a Constitutional lawyer, and I have no expertise here. I plan to research it some because boy am I ever interested in this.
The second point, again as an attorney, is that in my opinion the gay marriage ban violates our Federal Constitution, and significantly. I could do this in a far more detailed way, but here are the bullet points:
We have this thing called the Fourteenth Amendment in our Constitution. It grants equal protection under the law to all U.S citizens, and abolished slavery. Text here: http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
The right to make contracts is protected by the law, one of those things the fourteenth says we all get to do. Contracts are one of the major areas of law, in fact. Marriage is a contract, and a common one. (I ranted on that piece a few posts down). The fourteenth amendment applies. It was applied specifically to marriage contracts in Loving v. Virginia, http://en.wikipedia.org/wiki/Loving_vs_virginia, which overturned Virgina's statute banning interracial marriages. And if you want to see how far we've come, and how quickly, go read that one, guys.
The Fourteenth Amendment has been applied to gays in the past, specifically in the large area of employment discrimination law, in which gender is a protected class. Gender in this context is very broad, and includes pregnancy (you can't fire her because she got pregnant, or him because his wife did and he needs leave) and sexual orientation (can't fire you 'cos you're gay). There's a lot of case law on this. Much of it came from California. Much of it was both chilling and exhilarating to read, as was Loving.
Put all of this together, and gay marriages should be protected under the Fourteenth. We batted this around a lot in my Con Law classes (which are not missed, but in some cases fondly remembered. I had a fabulous Con Law prof). My professors were very much of the opinion that the question of whether gay marriage was protected under the fourteenth had to eventually go to the Supreme Court, and that they would have a heck of a time denying equal protection and equal marriage. There is no legal grounds to deny gay marriage that I've ever been shown (legal folk in the audience, feel free to play devil's advocate here and come up with a sound constitutional argument against).
Gays are a protected class, marriage is a legal contract, the line's easy to draw. It seems so damned obvious, but it's going to be a big, emotional thing and an enormous uphill battle, for no other reason than that homosexuality scares a lot of people, and is not the traditional mating structure in our country. People tend to hate that which they think they aren't, or don't know: human tribalism at its worst, and the root of bigotry. That and we've conflated spiritual and legal marriage, which muddies the issue so much in the mind of the average person that half the time neither side even knows what it's talking about.
In my con law classes, there was a lot of speculation and talk about when this issue was going up to the Supreme Court. The Supremes need a conflict at the state level to bring an issue up, and, well, we have one right here in CA right now. If Prop 8 doesn't get overturned as being somehow contrary to the proper way to amend CA's constitution (and I certainly hope so) and decided on those grounds, I suggest that we are about to see this thing go up for decision.
It's not a certain outcome, even though it certainly looks like it should be, and we can't be complacent. But I have hope...I mean, if Arnold, of all people, is expressing regret over the constitutionalized bigotry that is 8, anything can change, right? To look back at the facts of Loving is to understand how incredibly fast social change can happen, and the place of the law in that cultural process. We've just seen some of the fruits of our country's long move away from bigotry in this election. I will be watching the coming process with fear, and excitement, and hope.
