Saturday, August 7, 2010

Prop 8 Fallout and Ruling

I've been watching the fallout from the California Prop 8 ruling, which, in the future, will be known as Perry vs. Schwarzenegger.  This is admittedly quite unfair to Schwarzenegger because he made no attempt to defend the proposition on the states behalf since it was a voter proposition.  He will forever be linked as the defendant in this case.

I spent some time reading the findings of law in the ruling and found it an interesting read.  I have very seldom ready any legal rulings, but you can better see how arguments are twisted (or not).  All of the judges findings certainly appeared to be sound and all had legal precedent.

One misconception of this case has been that it is being defended as a freedom of religion issue, or at least that is what the religious right spews forth.  A sampling of statements:
I have warned you for months that our religious freedoms are imperiled. Well, Armageddon may be close at hand if a new court decision holds up. ~ Chuck Colson
Ladies and gentleman, what are we facing? The homosexuals want to destroy the church and they want to destroy marriage. That's what it amounts to. It doesn't matter how sacred an institution is and how important it is to society as long as there can be confirmation that this lifestyle is acceptable. That's what they want.
Man, pray for this country.  ~ Pat Robertson
Any time you see an outrageous racial or bigoted quote that starts with "Ladies and gentlemen," you can be assured it comes from Pat Robertson.

They are trying to make it a religious freedoms issue.  It isn't.  The case was won based on the Equal Protection clause in the 14th Amendment issue.  This just happens to be the same Amendment that Republicans are now talking about changing to deny birthright citizenship.  That is another story.

Here is Section 1 of the 14th Amendment:
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I have italicized the section that was applicable to this decision.  Not being a lawyer, I can't describe all of legal precedents surrounding this particular section.  What I do know is that the 14th Amendment was passed after the Civil War and this section was used to give citizenship to slaves that had been born in the United States and to protect the former slaves from what would later be known as Jim Crow laws that eventually led to the civil rights movement.  I don't see the words heterosexual in there.  I don't see any words about how marriage is a strictly religious institution.

Another argument used by the religious right is that the proposed amendment did not list gays and lesbians explicitly, therefore, there is no attempt to target them specifically.  The judge commented on the tactics used by the proponents of the amendment and they were decidedly targeting fear of what gay marriage could mean.  This is typical of the intellectual dishonesty used by the religious right.  In fact, the whole basis for their Intelligent Design charade was not to use the word "God" so that it would appear to not be a religious issue, but simply an alternative to evolution.  Anyway, here is the full text of Prop 8.
Section I. Title
This measure shall be known and may be cited as the "California Marriage Protection Act."
Section 2. Article I. Section 7.5 is added to the California Constitution. to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.
The other argument being used by the religious right is that this is a democracy issue, that the judge dismissed the will of the voters.  This is true, strictly speaking.  One of the strengths of our Constitution is that it will not allow the will of the majority suppress the rights of the minority.  This is absolutely fundamental to the existence of the United States, and the religious right wants to tear that down.  You simply can not believe any conservative Christian that claims to defend the Constitution.  Their beliefs are contrary to so much of what the Constitution stands for.

This fight is certainly not over.  What makes this interesting is that the ruling only applies to California's Prop 8.  Even if the Appellate court upholds the findings, it will still only apply to California.  This is where it gets tricky.  If the Supreme Court decides to not hear the case, which is their prerogative, that essentially confirms the Appellate court ruling and that ruling only applies to California.  However, if the Supreme Court decides to hear the case and upholds the Appellate court ruling, then that ruling essentially applies to all such gay marriage statutes and they all become unconstitutional.  My money is on the Supreme Court dodging the issue such that this battle will have to be fought in every state where such laws exist until the Supreme Court decides it can no longer avoid it.

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