Proposition 8 and the California Supreme Ct

Let me clarify my position, before we get into the really controversial stuff. I *favor* same sex marriage. Should I find a candidate that agrees that such a plan is mutually worthwhile, I want one my very own self - but that's not (mostly) why I favor it.

For the same reason that the anti-miscegenation laws of the Jim Crow South were wrong (that at base, even before touching on the morality of racism, that the government (federal, state, county or municipal) has no business deciding which consenting adults beyond a reasonable degree of consanguinity get hitched with each other, bans on same sex marriage are wrong.

However, beyond that fundamental argument, such bans are counterproductive when subject to rational analysis. The very nature of the bans is counter to best rational interests of the state - not only do persons in legally defined long term relationships cost less in terms of taxpayer support over the years (married folks stay off medicare longer, two incomes stave off the need for assistance, etc.), they increase available pool of marriages and the revenue (direct and indirect) to the state attached to such marriages.

Beyond even that simple logic, in general wielding the public hammer of constitutional amendments and legal statutes to selectively discriminate against specific demographic with the avowed intent of denying the recognition of their equal worth before the law AND specifically denying them over 1000 rights and protections granted married couples at the federal and international levels (and some various rights at the state level, even with Domestic Partnership - marriage for 2nd class citizens) sets exceptionally bad precedent.

With all that said, the California Supreme Court - however much I may dislike its' policy effects - did good. They did their jobs, which is NOT to set moral or public policy, but rather to rule on points of Constitutional and statutory law.

The CSSC had before it two points:

1) Was Proposition 8 properly an amendment (simple modification) of the California State Constitution, or was it a mislabeled revision (a wholesale change, which requires a state constitutionall convention under California rules?

2) In the event that Proposition 8 was legally valid (moral is, as always, a different argument and not on appeal), what legal status do the 18,000+/- same sex marriages that occcured between the original CSSC decision and the passage of Proposition 8 have?

In the case of the first, it was, frankly a weak legal argument by members of the LGBT community that is best characterized as grasping desperately at straws after the barn has burned down. A shot in a million "gotta look busy while we regroup, and what the hell we might win, and it'll gin up the community" kind of appeal.

Anyone with any sort of interest in the law could detect that at thirty yards off or so, in a sad but true kind of way, and it's simply unfair to excoriate the Justices of the CSSC for doing their appointed job. Accurate targeting for protests, boycotts, and other lawful retaliation and protest is on pro-Prop 8 donors and advocates, including the presently-gloating Mormon church and its' membership.

The *SECOND* part of the decision was also hideously predictable. The marriages were lawful at the time they occured, and thus, remain lawful after Proposition 8 passed - in non-legal terms, "no, you don't get a do-over". Retroactive laws are, for good and solid reason, simply forbidden - and that would include any attempt to "un-do" the then-legal marriages.

There is plenty of reason for anger, but directing that anger at the Justices or at the legal system, is inappropriate. Once Proposition 8 passed, the system worked, and worked well, in a bad situation.

The argument of to what degree the terms of State and even Federal Constitutions should be modifiable by popular vote is entirely separate, and one of long standing, and not specific to either same sex marriage or LGBT rights generally.

Frankly, I think that both the legislature and the people should each have an extremely difficult mechanism to change constitutions that involves super-majorities, multi-year cooling off periods, and multiple votes - just to filter out the stupid, the bigoted, and the just plain wrong-headed. Additional precautions to keep either from going astray are negotiable.

Proposition 8 remains a wrong-headed piece of religous bigotry thinly disguised as an amendment to the California Constitution. But now all that remains to Californians is a repealing/modifying amendment, or, heaven forfend, a state constitutional convention.

GC