Actually, it could have been worse

[hrj]

On that Prop 8 thing ... the thing is, the realistic expectation was that they'd uphold the proposition but also uphold the existing marriages. That wasn't any big surprise. What was somewhat surprising was the amount of effort their decision put into squeezing the effects of Prop 8 into as small and restricted a space as possible. Having read through the text of the decision (well, ok, I skimmed large sections of it, but I did go through the entire 136 pages), it seems to me that this is a court that would have loved to have tossed P8 out entirely but they simply couldn't make that work. Instead, they came up with the most restrictive possible interpretation to uphold and then more or less laid out the agenda for how marriage equality supporters should proceed. I.e., force the legislature to actually provide an option identical in substance to "marriage" (but called ... Fred ... or George ... or something) and litigate the heck out of any actual functional differences. Find some same-sex couples married in other states (both before and after passage of P8) who have become residents of California and demand a clear explanation of whether California is going to recognize them as married-by-that-word and whether California is going to treat two couples differently, both with identical marital status in their state of origin, based on when their marriages occurred in relation to P8.

And in the meantime, maybe Obama will grow a backbone and do something about DOMA and DADT.

Comments

[vnend.livejournal.com]

I am still waiting to see how NJ deals with the state commission's report that said that their current 'separate but equal' 'civil union'/marriage law does *not* work (do I really need to type "duh!"?).

One answer I haven't seen proposed yet: Strike the word 'marriage' from all state law and policy. If the fundies want to insist that 'marriage' has some deep religious significance, let them. But if it is a 'religious' issue/term, as they insist, then it doesn't belong in the law. Invent a legal term of art that covers the various permutations and use that instead. The simplest answer is to simply make all such legal relationships 'civil union's. Replace all occurrences of 'husband' or 'wife' with 'spouse', and define 'spouse', for legal purposes, as 'one of the parties in a civil union'. (If you want to get cute, use 'spice' in stead of spouse. I would be amused).

Then simply make it very clear it is up to the individuals to use 'marriage', 'husband' and 'wife' as they wish, not the state's problem.

Good luck out there. Things are nearly hopeless here; the hope being that we can wait for the truly fossilized to die off and we can raise some people who think with their brains instead of their knees. Or something like that.

[(Anonymous)]

I've been proposing that for years, but nobody in power will listen to me - I wonder why? (Maybe because I'm nobody. I'm OK with that!)

[vnend.livejournal.com]

Well, it could be because you are posing anonymously.

But that has been happening to me for years. I will suggest something, and it will vanish into the aether. Then, a month or a year or more later, someone else will say the exact same thing and it will take off like gangbusters. Let's hope this goes that way too.

Or there is an attack of sanity before then. Like that will ever happen.

[cellio]

I, too, have been arguing for this for ages, but I'm nobody. (I do write to my congresscritters and state reps and their aides send back form letters.)

I think the state's interest should consist only of registering legal associations among consenting adults, these associations to cover things like joint property, joint debts, inheritance, medical access, and the like. Call them "civil unions". Marriage, on the other hand, is strictly a relgious matter. The evangelicals can refuse to marry gay couples just like the Catholics can refuse to marry divorced people and Jewish institutions can refuse to marry Jews to non-Jews. Your religion, your restrictions -- but they stay within the bounds of your religion.

I would love it if the CA ruling leads to something like this.

[aquaeri.livejournal.com]

One answer I haven't seen proposed yet: Strike the word 'marriage' from all state law and policy. If the fundies want to insist that 'marriage' has some deep religious significance, let them

Oh goodness, I see that being suggested all the time. And I argue against it, because marriage is firstly a human matter: social and cultural. Then it becomes a legal matter because laws are about the regulation of human society, and a religious matter for some religions, because they similarly are about the regulation of human society.

I am an atheist, and I am married. And no member of any religion is going to tell me otherwise. The meaning of what marriage is within their religion cannot possibly override my own knowledge.

[vnend.livejournal.com]

You cut the quote just a hair early. I went on to write:

Then simply make it very clear it is up to the individuals to use 'marriage', 'husband' and 'wife' as they wish, not the state's problem.

So what if you are an atheist? If you feel it is a marriage, then it is. What changing law and policy means is that no one else would be able to tell you it is not.

But, even allowing for your assertion that marriage is social and cultural, can the USA, or even one state, like, say, California, say that it is one society and culture? I don't think so, and even there having one law for all the societies and cultures that make up the whole fails. Which is really what the whole mess boils down to, I think.

[aureellia.livejournal.com]

I agree with your assessment of the court's position. They were extremely careful to set this up to be overturned in other ways. I think that is why I am not all that upset.

[blaurentnv.livejournal.com]

While the ruling wasn't what I'd hoped, I didn't see how it could be what I hoped. I have not had the chance yet to read the full decision, but your summary is encouraging. I was relieved that the worst case did not happen; the prop 8 advocates expected it to retroactively annul marriages that happened during the period they were legal. This seems like the best reasonable outcome we could have hoped for.

With the calls for a Constitutional Convention increasing for a variety of reasons, this could become more complicated.

[cryptocosm.livejournal.com]

I also enjoyed the specific discussion of language in other state constitutions which would have precluded P8. It read pretty much like a recipe for how to fix the CA constitution regarding this issue. (I'm coming to the opinion that there's so much crap in the CA constitution that the only thing to do is scrap it and start from scratch.)

The court failed, however, to make the simple leap of logic that would have stuck it to the pro-8 crowd: Having previously determined that the use of the word 'marriage' is a matter of equal protection, and having now found that P8 legitimately denies use of that term to some people, then equal protection should require that P8 be interpreted to deny the term 'marriage' to everyone. Instead, they went Orwellian on us: Everyone is entitled to equal protection, but some are more equal than others.

Your hypothetical out-of-staters are probably SOL, though - it's a matter of "full faith and credit", but the US constitution lets Congress define what that means. DOMA has done so.

[hrj.livejournal.com]

The thing is, DOMA says that states aren't required to recognize other states' marriages, not that they're forbidden to do so. I think there's a lot of scope for using them as a crowbar to do some dismantling.

[cryptocosm.livejournal.com]

P8 says California doesn't recognize same-sex marriage. DOMA says California cannot be compelled to recognize same-sex marriages performed legally in other states. So long as those are both the case (and so far the courts have let them stand), the leverage you can get out of a same-sex marriage being effectively annulled by the couple moving to California is limited.

Neither do I think there's much hope of getting rid of DOMA any time soon. Now that there is at least one state willing to perform same-sex marriages for non-residents, repealing DOMA would effectively impose same-sex marriage everywhere. Given the recent NRA coup, there are too many marginal Democrats in Congress to get that through.