California Prop 8 supporters shoot off own feet

[kengr]

Ok, this is gonna be painful for a lot of people so it's going behind a cut.


So, first off, lets see what the prop actually *is*.

From the California "full text of measures" site at http://www.voterguide.sos.ca.gov/text-proposed-laws/text-of-proposed-laws.pdf#prop8

PROPOSITION 8
This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8, of the California Constitution.
This initiative measure expressly amends the California Constitution by adding a section thereto; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new.
SECTION 1. Title
This measure shall be known and may be cited as the “California Marriage Protection Act.”
SECTION 2. Section 7.5 is added to Article I of the California Constitution, to read:
SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.

Ok. Very straightforward. Disgusting, but straightforward.

Now let's look at the section of the California State Constitution that the decision legalizing same sex marriage was based upon.

CALIFORNIA CONSTITUTION ARTICLE 1
DECLARATION OF RIGHTS
SEC. 31.
(a) The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
(b) This section shall apply only to action taken after the section's effective date.
(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.
(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.
(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State.
(f) For the purposes of this section, "State" shall include, but not necessarily be limited to, the State itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.
(g) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.
(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

It's part (a) we are interested in.

Nothing in Prop 8 changed that in any way.

So, the legal basis for the decision that opposite sex only marriage is a violation of that section is intact.

Now, in their decision (which seems to have mysteriously disappeared from all the places I can find links for) the justices noted that there were *two* ways to bring California marriage laws into compliance with that equal protection clause. They felt that legalizing same-sex marriage was the less disruptive one.

Since that's been prohibited, when (not *if*) the new set of lawsuits (which will be filed the second the measure has officially passed) reach the CA Supreme court, the justices will almost certainly implement that second solution that they mentioned.

That being remove marriage rights totally and convert everything to civil unions.

At which point this so-called “California Marriage Protection Act” will have *destroyed* marriage in CA.

And while it'll be painful for the good folks I know whose marriage will be affected, I'll enjoy watching all the folks who voted for this atrocity finding out just how *un*equal civil unions are.

And maybe, just maybe, the rest of the country will learn something as well.

Comments

[adrianaendless.livejournal.com]

Ok so I had wondered myself this AM if I should be wanting to have a civil union because this is BS. What is the real difference between these? Just the word.

[kengr]

alas, civil unions are a classic example of why and how "seperate but equal" doesn't work.

I know someone in CA who had a civil unions. She had to *lie* when her partner died and the family that had disowened her partner sent a sheriffs deputy to gather her partner's things for them (out of spite most like).

Yes, the law said that she was the person who got everything if her partner died without a will. But the sheriff's deputies hadn't been told that. Fortunately, he accepted the lie, or she'd still be in court trying to get things back.
She later managed to get the Sheriff's office and the local DA clued in about what the laws actually said, rather than what they *thought* it said.

Now consider that places can have rules that let spouses do things (example being visit each other while one is sick in the hospital or share benefits on an insurance plan) but they don't have to do the same for folks with a civil union.

The state can *say* a civil union is equal, but only the rights granted by state law are covered and many of those you'll still have to fight about until folks at the local level get clued in.

[netdancer.livejournal.com]

Would I be a bad person if I laughed my ass off if marriage for anyone was abolished and replaced with Civil Union with all the rights, and optional but governmentally meaningless 'church weddings'?

[dornbeast.livejournal.com]

Not as far as I'm concerned.

[brooksmoses]

You don't get all the rights, though. In particular, you don't get "recognized automatically by other states and the Federal government" with civil unions.

[songwind.livejournal.com]

Personally, this is how I think it should be done.

[saffronrose.livejournal.com]

They do it that way in many European countries. I see no reason for us not to follow that.

[rutemple.livejournal.com]

OOOooo! I love your brain, and logic.

looked in from Pat K's LJ comments, and oh my, you've made me smile this morning!

[kightp.livejournal.com]

Me, too.

All it would take is one lawsuit by someone with standing ...

[browngirl.livejournal.com]

Thank you for pointing me to this. I don't want to hope for this, except, if it's the way things have to get changed...

[kengr]

Well, if it comes to this (and re-reading, they may not invalidate existing marriages) the odds are good that the huge number of ways civil unions are "separate and unequal" will become sufficiently obvious to force changes.

For example, health plans might change simply because CA is too big a market to not accomodate. Might even get Congress to require that the IRS and SSA treat civil unions like marriage.

There's still the option

[morgan-gw.livejournal.com]

...that the prop will be declared invalid/illegal/whatever, the amendment will be un-amended, and things will go back to where they're been since June.

I just hope Prop. 8 is defeated in the final count, so this all becomes moot and people can go on with their lives (and wedding plans *g*).

Re: There's still the option

[kengr]

Alas, with 99.5% of the precincts reporting, it's still ahead. :-(

[siegeengine.livejournal.com]

Oh, that would be rich!

very rich.

I notice the first lawsuits have already been filed as of 45 minutes ago.

[kengr]

Good.

[evylprincess.livejournal.com]

I notice the first lawsuits have already been filed as of 45 minutes ago.

This makes my heart so warm and fuzzy.

By the way

[morgan-gw.livejournal.com]

Our son, who was ready give the human race up as a loss, feels much better about things after I showed him this. I think he just went off to ponder wingnut heads exploding ;-).

Re: By the way

[kengr]

Yes, I'm enjoying that image myself.

As well as that of all the bigots getting first hand experience with the ways in which civil unions *aren't* equal.

"Sorry Sir, we can't put your partner on the company health insurance. You'd have to be married..."

"But the damned state says it's not legal for us to be married!"

"Too bad. Now you now how all the gays feel."

[haleth.livejournal.com]

That being remove marriage rights totally and convert everything to civil unions.

Yeah, I'd be in favor of this, actually. The government should issue legal contracts only, and those should be available without discrimination. Personal contracts are up to the people involved, and whoever they want to be involved, church or whatever.

[siliconshaman.livejournal.com]

The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

Umm.. I'm not a lawyer. But I don't see where 'sexual orientation' is mentioned in that. Couldn't they just revert to a more literal interpretation of it?

having said that though.. it'll be interesting if it does backfire on them. I know I sure as hell would do that if I was judge. Law of unintended consequences indeed.

[cofax7]

Because orientation isn't the issue; sex is.

Couple A is male/female: they get to marry.

Couple B is male/male: they don't get to marry because one of them is male. It's not that their sex act is different, or that they can't procreate, but because of the gender of one of the parties to the contract of marriage. That's what makes it an equal protection violation.

So I read it, anyway.

[dornbeast.livejournal.com]

You were looking for the decision? I hope that helps.

[gridlore.livejournal.com]

It's not going to get that far. A request was filed today with the same Supreme Court that gave us the same sex ruling to overturn Prop 8 because its scope exceeded what is allowed in an amendment.

To revise the state constitution (removing a right found there, in this example) requires that the legislature first pass the measure and then a 2/3rds majority vote in an election.

So odds are that Prop 8 will be tanked very quickly.

[fayanora.livejournal.com]

A-FUCKING-MEN!

[fayanora.livejournal.com]

Since they didn't change the constitution, there's also legal precedence for someone to go to court to challenge the constitutional validity of prop 8. Which I hope they do. I hope they take that all the way to the Supreme Court, too, if they have to.

[kengr]

Uh no, Prop 8 was an *amendment* to the CA state constitution. Specifically because the courts had thrown out previous attempt to use initiatives to pass laws against gay marriage.

And it won't go any higher than the CA supreme court as federal law isn't involved.

And that's what all the stuff above is about,.

[sabrina-pandora.livejournal.com]

YEEEEEEEHaw! Color me a cacklin' witchy-poo!

Now THAT just amused the hell out of me. It's unlikely to happen, but oh how sweet it would be to level the playing field and let them know how it feels! Hee hee hee!

Ruling link

[elf]

http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF is the actual text of the decision. It should be stable. (I wound up looking all over for it earlier today; it's fascinating how google works.)

The title was In re Marriage Cases, a set of six consolidated appeals rather than a single person's name, which makes it hard to remember.

When I've got some time (hah) I want to compile a list of ways in which marriage in CA is different from domestic partnerships--even setting aside the federal things, and ability to file (even state) tax returns together. And I'm willing to have my marriage converted to a civil union, with the accompanying loss of federal recognition and rights, in order to stand on the side of fair treatment & equality for all, not just for the relationships that don't offend the Mormon church.

Re: Ruling link

[saffronrose.livejournal.com]

I could do the same.
BTW, glad to know you're on LJ, will friend you (Marina from PSanct)