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Prop 8 Won--And?
Nov. 5th, 2008 11:24 amYes, Proposition 8 won. Sorry, Rest of the World, that 52.2% of the people in my state thought marriage needed "defending". I assure you that I was in the 47.8% that felt otherwise, as are most Californians who happen to write blogs and thus with whom you are likely to interact this day. Don't blame us in San Francisco (76.5% against), don't blame us in Oakland and Berkeley (61.9% against), don't blame us in San José and Silicon Valley (55.6% against).
[Edit: The moment it won, of course, the legal challenge began. The same Chronicle article points out both--but that doesn't change the rest of this one bit.]
Folks, whichever way Proposition 8 worked out, you could tell going in that there were going to be an awful lot of unhappy people.
I think it's no secret to anyone that I was against it, that my husband and I voted against it, and that any friend I had who voted for it didn't bother to tell me about it--and if you did I honestly don't want to know; your vote is Your Own Business, thanks. I didn't blog about my choices beforehand because they were My Business.
Still, whether it won or lost, on such a divisive issue it would be guaranteed that the other side would be down at the courthouse forthwith. There are a lot of newly married men and women with a lot of money in San Francisco, who are, doubtless, this moment, getting their legal acts together. If one of them has just moved in from Boston--why, so much the better.
It ain't over, and it ain't gonna be over until it runs all the way to the US Supreme Court. California's Proposition 8 has language ("regardless of where or when they were performed") that runs directly against Constitutional law (Article IV, Section 1):
Now, I'm not a lawyer, let alone a constitutional lawyer, so I don't know how this plays versus common law and precedent, but this would seem to me to read that if gay marriage is all right in even one state, then, by the full faith and credit clause combined with the supremacy clause (Article VI, Section 1):
Then the other forty-nine have to cope. The most "fascinating" precedents to counter this, I should think, would come from other battles in the long history of the civil rights movement, of which this is but one more struggle. It just doesn't look good when you have to cite Dred Scott vs Sandford, you know?
Now, the other possible argument would be against the Establishment Clause of the First Amendment (Amendment I, Section 1):
But that's more of a minefield. A "full faith and credit" challenge would seem more likely to win, as is one paired with an appeal to the "implied right to privacy" that has been extrapolated from Amendments I, III, IV, IX, and XIV, as concisely discussed over here.
Personally, I think the guv'mint should be out of the marriage business entirely: two men, two women, one of each, small groups, you and your goldfish? FINE. Civil unions for all to deal with all civil matters, and let any sanctity that may be bestowed on such a union be bestowed by you and the practitioners and/or officiants of the creed of your choice. Indeed, this might even be in better compliance to the establishment clause (IANAL, IMO, etc) than the current situation, but I'm ahead of myself.
But if they're gonna be in it, then Adam and Steve should be as welcome at the courthouse as Adam and Eve--or, more to the point, Adam and Tashiqua.
People who Deserve My Money this week include, but are not limited to, the American Civil Liberties Union, the Human Rights Campaign, and Americans United for Separation of Church and State.
We lost a round. It ain't over.
-- Lorrie
PS: Obama won. Good. I heartily recommend prayer/magic/vibes of all well-intentioned sorts to be directed to a smooth administrative transition, and strength, wisdom, and compassion to him, his family, and his advisors. If you tend to the ancestral shout-out, I recommend MLK and JFK. This ain't over, either.
[Edit: The moment it won, of course, the legal challenge began. The same Chronicle article points out both--but that doesn't change the rest of this one bit.]
Folks, whichever way Proposition 8 worked out, you could tell going in that there were going to be an awful lot of unhappy people.
I think it's no secret to anyone that I was against it, that my husband and I voted against it, and that any friend I had who voted for it didn't bother to tell me about it--and if you did I honestly don't want to know; your vote is Your Own Business, thanks. I didn't blog about my choices beforehand because they were My Business.
Still, whether it won or lost, on such a divisive issue it would be guaranteed that the other side would be down at the courthouse forthwith. There are a lot of newly married men and women with a lot of money in San Francisco, who are
It ain't over, and it ain't gonna be over until it runs all the way to the US Supreme Court. California's Proposition 8 has language ("regardless of where or when they were performed") that runs directly against Constitutional law (Article IV, Section 1):
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
Now, I'm not a lawyer, let alone a constitutional lawyer, so I don't know how this plays versus common law and precedent, but this would seem to me to read that if gay marriage is all right in even one state, then, by the full faith and credit clause combined with the supremacy clause (Article VI, Section 1):
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Then the other forty-nine have to cope. The most "fascinating" precedents to counter this, I should think, would come from other battles in the long history of the civil rights movement, of which this is but one more struggle. It just doesn't look good when you have to cite Dred Scott vs Sandford, you know?
Now, the other possible argument would be against the Establishment Clause of the First Amendment (Amendment I, Section 1):
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
But that's more of a minefield. A "full faith and credit" challenge would seem more likely to win, as is one paired with an appeal to the "implied right to privacy" that has been extrapolated from Amendments I, III, IV, IX, and XIV, as concisely discussed over here.
Personally, I think the guv'mint should be out of the marriage business entirely: two men, two women, one of each, small groups, you and your goldfish? FINE. Civil unions for all to deal with all civil matters, and let any sanctity that may be bestowed on such a union be bestowed by you and the practitioners and/or officiants of the creed of your choice. Indeed, this might even be in better compliance to the establishment clause (IANAL, IMO, etc) than the current situation, but I'm ahead of myself.
But if they're gonna be in it, then Adam and Steve should be as welcome at the courthouse as Adam and Eve--or, more to the point, Adam and Tashiqua.
People who Deserve My Money this week include, but are not limited to, the American Civil Liberties Union, the Human Rights Campaign, and Americans United for Separation of Church and State.
We lost a round. It ain't over.
-- Lorrie
PS: Obama won. Good. I heartily recommend prayer/magic/vibes of all well-intentioned sorts to be directed to a smooth administrative transition, and strength, wisdom, and compassion to him, his family, and his advisors. If you tend to the ancestral shout-out, I recommend MLK and JFK. This ain't over, either.
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