Submitted to a Candid World

Absolutely true, but it almost certainly won’t ever be a federal amendment. The hoops are impossible to jump through, and the backlash would be huge. I’m not entirely convinced that this technical challenge to Prop8 has any merit ,but I’m glad to see people are fighting it. Good for them. I should get around to read the complaint after classes are over…

By way of comparison to the federal system, only twice has a constitutional holding of the high court been overturned by amendment: the Eleventh overturned Chisholm v. Georgia (no sovereign immunity for states defending in a diversity suit in federal court), and the Thirteenth overturned Scott v. Sanford (African Americans aren’t people). So here’s the question: is gay marriage as bad as slavery or an abrogation of common law principles?

i’ll have to look at the california assembly. i doubt, very seriously, we would see a 2/3 majority vote in favor of sending a revision to the voters, considering the number of democrats and moderate republicans who are in the assembly. also, arnold was vocally against the amendment.

but it is worth looking into; i’ll get on that.

also, ames, i think there actually is merit to the argument. i think the courts like it when they can make a decision based on procedural technicalities.

if this initiative went back to the people (again, only after 2/3 legislature approval), i don’t think it would pass.

Thanks for that Gotchaye… that’s kind of exactly what I was hoping to do, so I’m super-glad that you’ve relieved me of the research. Unfortunately, that’s what I was afraid of, though.

PC – you may be right, and someone will file the challenge, but from a legal perspective, in an argument that I haven’t made here before I think, it’s absolutely apples and oranges. Sexuality carries all the hallmarks of a “suspect class” under the equal protection clause (immutability, history of discrimination, etc.), while one’s numerical preference for spouses carries none. The former is status, the latter is conduct. An equal protection decision constitutionalizing the marriage right would have almost NO bearing on plurality. It’s not exactly a credit to Scalia that he can’t recognize that.

I don’t think that a revision would have passed the legislature, or that a similar amendment would have passed at the federal level, either. I was considering the hypothetical situation.

As far as this challenge is concerned, what is its basis? As in, is it written into legislation, or is it explicitly in the state constitution? Fortunately, the conditions for a federal amendment are pretty darn strict.

My understanding is that the courts have effectively done that in every way that matters. The opinions we’ve already seen are justified by claiming that homosexuality is more or less immutable. The California Supreme Court decision I linked to is no exception – it calls sexual orientation a ’suspect classification’ and repeatedly lumps it in with race and gender. It discusses immutability later on, pointing out that we don’t care about immutability (one’s sex can change, one’s religion can change, etc) as much as we care about how important a characteristic is to a person’s identity.

contrary to my usual disposition, i am feeling hopeful about the pending state supreme court case, and more important, let’s not forget the attitudinal shift among voters in california.

(perspective: prop. 8 polls were pointing to defeat — albeit very close — just before the election. although the prop won, it was very close compared to prop. 22. in 2000 polls were very close, but election results blew them out of the water. on another thread there was discussion of a bradley effect re: gay marriage. true in 2000; not so much in 2008.)

i also feel confident that there will be resolution re: immutability. the court might have been able to avoid pronouncement, but this cannot go on indefinitely. while lawrence might not have addressed immutability, look at the evolution from the days — not a generation earlier — when scotus said sexual behavior wasn’t protected. as frustrating as it is that the court hasn’t said sexuality isn’t mutable, it is also reassuring that it hasn’t said (at least recently) it IS mutable.

the door is open.

i think it is important to look at overall trend rather than rely on cross sections; though i don’t want to imply the trend is inevitable. it is where it is now because of vigilance on the part of gay-rights advocates.

Good point there, Mike. But in thinking about it, I realized that that’s another case of the difference religious marriage and secular marriage. You can already get married as many times as your religion allows, but that doesn’t mean the state will accept it when it comes to rights conferred by marriage. The state doesn’t prevent you from cohabitating with multiple people you would call spouses.

Gays could argue the relgion aspect, too, since there are churches that will perform ceremonies for gay couples.

Already, both groups can act married (and gays have civil unions in some places) but neither type of union is fully sanctioned by the state. In fact, since the objections to the state recognizing either is primarily religious (or cultural based on religious preconceptions), both really should be accepted for the good of the institution of secular marriage.