First off, I do not think its a vast right-wing conspiracy that state supreme courts keep ruling in favor of gay marriage during election years. They're not nearly organized or principled enough to pull that off. However, I'm anticipating a blitz of media coverage on the recent California Supreme Court decision that not allowing gays equal rights to marry is unconstitutional (at least under California's Constitution). Here's the story I read. Of course its a sign of things to come when you google "massachusetts gay marriage decision" and the first 10 pages of hits are different articles about the California decision.
Don't get me wrong. I'm all for gay marriage. I applaud the California Supreme Court decision and, although I haven't actually read the text of the decision yet, their reasoning, as portrayed in the Washington Post was sound.
What bothers me about this decision is simply the timing. Here's what's going to happen: for the next couple of days the networks will be milking this story for all its worth in their traditional manner. Then something will happen. They will realize that there's a presidential election going on and that the candidates haven't spoken out on their positions on the issue in a while. John McCain will be asked and he'll say he's against it. Barack Obama will be asked and he'll say something to the effect that he supports it while trying not to irritate those of his supporters who might abandon ship if he comes out strongly for gay marriage rights. Hillary Clinton will say something similar to Obama and nobody will pay her any attention as the election train passes her by. But then the media will begin to harp on it. And they'll drive it into the ground, parsing every single word out of the candidates mouths, figuring out what blue collar white voters think about it, what black voters think about it, what moderates think about it, what Chris Matthews thinks those people think about it. We are going to be hearing about this through November, mark my words.
So, to do my part, absent some actual newsworthy story apart from today's headline, you won't hear anything else about it here. My take: good decision on the part of the California Supreme Court, I think they nailed the equal protection argument that's convinced me for quite sometime. Not sure how they got around the fact that, to my knowledge, homosexuals aren't a suspect class, at least according to the US Supremes, but I think the argument is there to make them one.
So there you have it. I'm not talking about this anymore.
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6 comments:
I guess this is what J. Scalia is constantly advocating, that the US Constitution establishes certain baseline freedoms, and the states can add upon it. Important in the opinion is that the Cal. Supreme Court holds that homosexuals are now a suspect class and that discrimination claims should be reviewed under strict scrutiny.
And it's important that it's (apparently) based on the California state constitution, not the US Constitution.
THe CA Supreme Court says gays are a suspect class. In Lawrence v. Texas the US Supreme Court claimed to use a rational basis standard, but definitely treated sexual orientation as an elevated quasi-suspect class, finding that traditional and moral disapproval are not rational bases to support anti-gay laws and policies. More and more federal courts are treating sexual orientation as a type of suspect class post-Lawrence.
Notably, the California Constitution's Equal Protection Clause (Art. I, Sec. 7) reads almost identically to the U.S. version. So I don't think there's any meaningful semantic difference between the two, leading one to the conclusion that the rationale used by the Cal. Supremes could be extended to the U.S. Supremes. I suppose there's still a federalism argument to keep the whole issue out of the federal courts, though.
Blue, that is a very interesting thing to note, but what is most important I guess is that this issue is dead as far as those against it are concerned becuase no matter the interpretation of the U.S. Constitution how and to where can you appeal a State Supreme Court decision intepreting the case on terms of the State's constitution it is unable to be granted cert. because of the "other idependent grounds" for the decision - that is the U.S. Const. COULD be read to not to included gay marriage, but as NVB points out it can't be read to deny it - consider that Ca. S. Ct. has apprently determined there are other means to uphold the ruling.
I guess the only way to fight onward would be put up a "gay marriage amendment" but that would not have nearly the potentcy on a Ca. ballot that it does on an S.C. ballot for driving the wacko's out to the polls to vote for it (though on a pertinent side note: I do remeber an awesome boost in my marriage when it passed here in S.C., I mean seriously my spouse and I were really on the rocks and it would have "ruined" our traditional marriage had it passed - but our traditional union was completely "saved" when I found out the gay couple down the street wasn't going to marry - thank goodness)
Interestingly enough, three out of the four judges who voted in favor of overturning the ban were appointed by Republicans.
Oh, and even more interestingly, Arizona (McCain's home state) is the first state that actually had such a ban rejected outright by the voters.
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