Foolish Anti-Marriage Activists

Timothy Kincaid

June 1st, 2008

The Alliance Defense Fund – not surprisingly – has asked the California Supreme Court to stay its marriage equality decision until after the likely November election. I think that their petition betrays a weakness in the anti-gay position that greatly increases the likelihood that no stay will be issued.

I’m going to segue off for a moment and then get back to that.

I just noticed something about the dates of the process that I find interesting.

The county clerks in California have until June 18 to determine whether there are adequate signatures for the constitutional amendment to be considered in November. But the Supreme Court only has until June 16 to decide whether to issue a stay. Thus, the anti-gays are asking the court to act on a possible result to an election that potentially can’t even be verified as occurring until after the stay is made.

Although it’s pretty likely that there will be a vote in November, this argument is based on more than one uncertainty and thus is not very compelling. Theoretically, the anti-gays could be asking the court to stay its decision until after a vote that won’t even take place.

OK, back to the anti-gays. In their petition, the ADF did something that surprised me. Even for them.

Great public harm and mischief, as outlined herein, will result from permitting same-sex “marriages” for a five-month period, only to later change the law by returning marriage to its traditional definition.

The Court determined that marriage was open to same sex couples; marriage, as in the legal recognition by the civil government. The Court spoke on what the civil institutions of the State of California would do in regards to marriage. As is their right.

But the ADF did not give this court the recognition of their right to make determinations about civil law. Instead, in their petition, the ADF refers to same-sex marriage as “marriage”, in quotes. They objected to “marriage” licenses and “marital” relationships.

They said, in essence, that regardless of the decisions of the highest legal body in the state, that same-sex marriage was not real or genuine, that it was only “marriage” in name, and not marriage in actuality. No matter what the Court may have determined.

I question the wisdom of that decision.

“It’s NOT marriage and I won’t call it so!” may be an argument that serves well in fundraising emails, but I don’t think it will fare well with judges who just said that, indeed, it IS marriage.

Now I may not be as imperturbable as the Justices of the Court, but if I were being asked to rule in favor of a petition, I would not be immediately encouraged to do so if the pleading party deliberately insulted me and my position and indicated that my decisions were not valid.

Now it may be that ADF is comprised of particularly weak legal minds. Or they may have recognized that their plea is futile and therefore the plea was written with their donors in mind rather than the Justices of the Supreme Court of California.

But in either case, this seems to me to be a foolish action and one which makes them appear to be petty and bitter.

In other words, thanks ADF, you’re helping our cause.

Robguy

June 1st, 2008

“Now it may be that ADF is comprised of particularly weak legal minds.”

I think you hit the nail on the head. These people thrive on fear and loathing, not logic or ethics.

Bill Ware

June 1st, 2008

I imagine a temporary stay through say June 23, 2008 is a possibility.

If the initiative fails to make the ballot, then the petitioners have no justification for a further stay and gay weddings would begin after a mere one week delay.

If the petition makes the ballot, my gut feeling is that the stay will be extended through the November election. Courts, I note, want to appear as reasonable and accommodating as the situation will allow. Rather than appear to be forcing their decision prematurely, they will provide the petitioners every benefit of the doubt.

Bill

Ephilei

June 1st, 2008

What legal problems would ensue? The worst would be that a couple has a license that says “marriage” but paperwork later they’d fill out “civil union.”

After reading about marriage amendments in other states, I’m more worried about the CA amendment. Marriage amendments significantly get out the vote, so even if only 42% of CA doesn’t want same-sex marriage, the number follow the same trends in other states and likely rise 5-10% at the actual vote.

Duncan

June 2nd, 2008

If any state in the Union will vote against such an amendment, it is surely California. Last week’s Economist had a good article detailing how gays in the state do not live in gettos like San Francisco, they live among, and like, ordinary people. And remember that “getting the voters fired up” works both ways.

Timothy Kincaid

June 2nd, 2008

Bill,

We’ll know in a few weeks, but I doubt a stay will be granted. The official defendant in the case, the State of California, is opposed to the stay.

Bill Ware

June 4th, 2008

Wow, Timothy, you’re right. Shame on my cynical heart. Seems like the California Court is not as tolerant of unmitigated nonsense as I thought. Pam posts a copy of the actual Court document. I had to see it to believe it.

Bill

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