« Go back a post || Return to G-A-Y homepage || Haul tail to next post »
08/05/2008
Wherein this writer mulls moving wedding to fall
THE BAD NEWS: There is still the possibility that Californian voters will be duped into supporting the flawed, cruel, un-American, someday-to-be-recognized-as-a-great-historical-misstep known as Proposition 8, which could stop the marriage equality that is currently brightening up the Golden State.
THE GOOD NEWS: Embracing this historical misstep at the polls might not terminate the unions performed prior to that time. This according to Attorney General Jerry Brown:
"I believe that marriages that have been entered into subsequent to the (May 15) Supreme Court opinion will be recognized by the California Supreme Court," Brown told The Chronicle. Noting that Prop. 8 is silent about retroactivity, he said, "I would think the court, in looking at the underlying equities, would most probably conclude that upholding the marriages performed in that interval (before the election) would be a just result."
Prop. 8 not retroactive, Jerry Brown says [SF Chron]
A positive, for sure. Though here's sincerely hoping the dark cloud will be wholly blown away, thus rendering this potential silver lining wholly irrelevant
Your thoughts
Come to Massachusetts instead!
Posted by: tjc | Aug 5, 2008 12:26:59 PM
Try not to worry too, too much. I read an article about what will likely happen should California residents pass Prop 8. To sum it up - our side will most likely ask for a stay which the court will probably grant - which means couples can still get married.
I don't know if you remember, but the court wouldn't address the issue until after the election - which is good for our side. They could have issued a verdict and said, "No, this is an amendment" and that would be that.
Should Prop 8 pass, an appeal will be made in the courts arguing Amendment vs. Revision. The article said that since the court already found gays and lesbians to be a suspect class - like gender, race, religion, etc. the amendment will most likely be found to be a revision.
The legislature would then have to approve a revision - basically passing laws that would remove protections for GLBT people so that they were no longer a suspect class. Not going to happen.
The other side could not take this to the Federal courts if they lose the court challenge, because this is a state issue.
So basically, the court that said GLBT couples have rights will be given the power to decide whether or not to throw out the case altogether. And I am guessing that with the support the the Executive and Legislative branches, that is exactly what they will do.
Posted by: stojef | Aug 5, 2008 1:09:39 PM
TJC: We already have most of our California nups planned. We are, however, developing backup Mass. plans just in case.
Stojef: Thanks for putting all of that so succintly. I too am very hopeful that we have already won, regardless of November. And I think that is what even Ronald George himself has tried to indicate in some interviews.
Posted by: G-A-Y | Aug 5, 2008 1:22:54 PM
Even if this piece of sh*t passes (I hate the negative vibes of even thinking that) wouldn't Prop 8 face the same judicial scrutiny that invalidated Prop 22?
That is, I would think that the California constitution would disallow the gender requirements of Prop 8 just as it did for Prop 22, particularly in light of California Family Code section 308 which says that California will recognize as valid marriages from any other jurisdiction.
Posted by: dave b | Aug 5, 2008 2:09:50 PM
stojef, you may be right about the "amendment" vs. "revision" argument, in that the California Supreme Court might be the final say in that decision. But, I don't know of any case where that argument has been tested successfully. I do know of two times when it was attempted, but failed - but in both of those cases, it may have failed simply because it was moot at the time.
And, dave b, one thing that we have to keep in mind, is that Prop 22 was a state law. And, as a state law, the California court is the final say. Prop 8 on the other hand would put the constitution in direct conflict with the state supreme court. This happened once (at least once) before. At that time, the state ruled that an amendment was unconstitutional, and the ruling was appealed to the U.S. Supreme Court.
Prop 22 couldn't be appealed at the federal level, but if Prop 8 passes, and is declared unconstitutional by the state supreme court (which would be consistent with the ruling on prop 22) then, more than likely, that ruling on Prop 8 would be appealed to the U. S. Supreme Court. And, who knows what they will do.
So, while it is possible that the "amendment" vs. "revision" argument might (a very iffy might) successfully confine this to the California court, there certainly is no guarantee that the argument would prevail. On the other hand, we do have good reason to believe that the unconstitutionality argument would prevail, but most definitely would be appealed to the U. S. Supreme Court.
Posted by: Dick Mills | Aug 6, 2008 12:19:23 AM
comments powered by Disqus