prop.8 court ruling

The CA Supreme Court ruled today that Proposition 8 stands, which means gay couples cannot be legally married in California, except for the 18,000 such couples that married last year, in between the earlier ruling that allowed it and the passage of the proposition in November. Here’s the full text of the decision; I confess I have not read all 185 pages of it.

Subtext and hair-splitting. I read appellate court decisions for fun. It’s a hobby of mine. As you might expect, appellate judges are masters of hair-splitting — they have to be — what you might not expect is that they’re also very, very good at subtext. One of the subtexts that you see fairly often boils down to We looked under every stone for an excuse to rule otherwise and could not find one. This decision is dripping with it. I concur with aphrael’s comment here: the court was in a bind, it could not rule Prop. 8 invalid without also invalidating a whole bunch of earlier initiatives that no one wants to disturb right now (although, looking at the list, some of them deserve to be thrown out). They go so far as to point out that that in a sense, petitioners’ and the Attorney General’s complaint is that it is just too easy to amend the California Constitution through the initiative process. They wouldn’t even mention that if they didn’t agree with it.

So since they can’t overturn the initiative, what they do instead is an artwork of hair-splitting: they declare that the proposition carves out a narrow exception applicable only to access to the designation of the term marriage, but not to any other of the core set of basic substantive legal rights and attributes traditionally associated with marriage...  (emphasis in original). In other words, the state remains obligated to provide some legal framework to gay couples that is identical in all but name to marriage. I guarantee you this is not what the backers of Prop 8 had in mind.

Words matter. Identical in all but name is still not equal, and not just for symbolic reasons. There are hundreds if not thousands of little ways in which someone you are married to is special cased: in law, in contract, in custom. (My personal favorite example: your spouse is automatically allowed to drive any car you rent, no questions asked, no extra fee, even if you’re over 25 and they’re not.) Now, the state legislature can easily pass a law saying that all those special cases also apply to anyone you are civilly united to, but imagine you’re out there on the sharp end of the stick, arguing with a bigot over whether you have to pay extra for your same-sex lover to drive the car you rented. The State of California says we’re married, so fuck off has ever so much more force than The State of California says we’re civilly united and the word spouse on your form legally includes that (so fuck off).

Sixty miles to the nineteenth century. California is not as liberal as one might like to think. We’re a community property state. We’re a right to be fired for no reason state. We’re a 2/3 majority to pass the state budget state. I live in the district of U.S. Representative Brian Bilbray (R), whose push poll about taxes sits on my desk even now waiting for me to have enough acid to dip my cursor in for a suitable reply. And he’s popular. Some friends of mine, out in east county, put up a No on 8 sign last fall and it was vandalized within 24 hours. Point being, there really is a majority against gay marriage in this state. This is why the U.S. Constitution and sane state constitutions take repeated supermajorities to amend. No law abridging the freedom of speech would, at the least, have a flag-burning exception by now if it were as easy to change that as this. (Although, we shouldn’t forget that the ERA fell just short of the 3/4 state legislature bar.)