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

[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.