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LA Times: Prop 8 Will Likely Be Upheld

Jim Burroway

March 4th, 2009

The California Supreme Court is scheduled to hear arguments over a lawsuit challenging Proposition 8 this Thursday. The court is then required to rule within ninety days. The Los Angeles Times is reporting that the Court may rule as early as Thursday to uphold the constitutional amendment banning same-sex marriage:

Reporting from San Francisco — The California Supreme Court may reveal Thursday whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex marriages will remain valid, during a high-stakes televised session that has sparked plans for demonstrations throughout the state.

By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. 

The Times reports that Chief Justice Ronald M. George is the one to watch on this. He wrote the May 15, 2008 majority opinion which originally granted same-sex marriage. That ruling was a narrow 4-3 decision. According to The Times, most analysis expect the court to have just votes to uphold Prop 8, since only one justice is needed to shift from the original decision. The three dissenting justices from the 2008 position already held that the votors should decide.

A large outdoor jumbo screen will be erected outside the San Francisco Civic Center, where large crowds are expected to gather to watch the live hearings taking place at the nearby Supreme Court headquarters.

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occono
March 4th, 2009 | LINK

That’s pretty much what I’ve been expecting too, the Marriages will stand (Odd as that will be from a legal perspective) but Prop 8. will be upheld. I’m amazed some people really think they’d overturn it, it’d cause hysteria.

Brian
March 4th, 2009 | LINK

Yeah, but, where does this voter-fueled oppression wagon stop?

If Prop 8 is upheld, what’s going to stop the religious right or anybody else from placing other forms of marriage that already exist on a ballot? There’s people living today who STILL think interracial marriage should be outlawed, and these are many of the exact same people who did everything they could to pass Prop 8.

Sorry to kick a dead horse here, but it’s a valid concern, and stranger things have certainly happened.

AJD
March 4th, 2009 | LINK

Since 2004, my attitude has come to be one of “Hope for the best, but prepare and expect for the worst.”

I really don’t think there will ever be justice for us in this country, not in my lifetime. I’ll be here until at least 2010, but for my next job, I’m seriously looking at Canada, and I don’t mean that in a “If Bush wins, I’m moving to Canada,” fickle sort of way — I mean it.

It’s not just because of the massive and well-funded forces we have arrayed against us, but because our side basically hasn’t done squat to try and fight these people off. It seems that the days of Stonewall/ACT-UP activism have died and been replaced with whiny, Oliver Twist meekness. There was a brief flash of the old school with Join the Impact, but even that soon fizzled and degenerated into the same old HRC-style crap. Now, we have people like Jonathan Rauch coming to a “compromise” with the religious right that would basically require us to cede equal treatment while requiring the other side to cede nothing. At 365gay.com, John Corvino talks about his friendships with Focus on the Family bigots while basically coming to the same conclusion as Rauch.

If we’re going to win anything in this country, we first have to recognize the following:

1. Equality is not inevitable, no matter what demographic data might tell you about young people — we have to fight for it

2. The religious right hates us with a burning passion and is our enemy; its ultimate goal is to eliminate us as a visible part of society and force us back into the closet — gay marriage bans are just a step in that direction

3. Nice guys finish last, as the cliche goes — we can’t keep being so polite to the religious right; that doesn’t mean we have to lie or do anything illegal, but we have no obligation to be nice to them

4. This is a classic predator/prey situation; the religious right feels so free to mess with us because they know they can get away with it, and we won’t really do anything

5. We have natural allies — these include atheists and other church-state separation advocates, much of the libertarian movement and the scientific community

6. We don’t have a very good media strategy — in all of our press releases, we need to make sure reporters know that from a scientific standpoint, our enemies don’t have a leg to stand on — but most stories I read on the subject make their views look completely reasonable; we also let them define the terms of debate far too often

7. We let the other side vilify us, but we don’t do the same — there’s no shame or even dishonesty in using nasty words in connection with our enemies, like “theocracy,” “tyranny of the majority” and “bigotry”

If we want to win, we have to stop being afraid of playing dirty.

The next TV commercial should look like this:

Dark music plays in the background as lines of text flash across the screen:

“Fourth Century AD: Byzantine Emperor Theodosius decrees that men should be burned alive just for being gay

“14th Century: 15-year-old Giovanni di Giovanni publicly castrated and killed just for being gay

“1930s-40s: Nazis kill 50,000(?) people just for being gay

“2008: California deprives an entire class of citizens of the right to marry the people they love just for being gay

That would make the people behind these marriage bans look bad and also point to an often ignored historical fact, that moves to ban same-sex marriage are part of an almost 2,000-year-old Western tradition of homophobia and oppression of gay people.

Timothy Kincaid
March 4th, 2009 | LINK

Brian,

Perhaps a likelier argument is that marriage is a Christian institution and is the model of Christ and the Church. Consequently, it is reasonable to deny the term “marriage” to pagans and Jews and Hindus. All non-Christians can have Domestic Partnerships.

The argument for such a position is virtually identical to that against same-sex marriage and if protections for gay people are up to a popular vote, then what is to protect those of other religions?

Jason D
March 4th, 2009 | LINK

Tim, then I would expect our Jewish bretheren to immediately push for a “Defense of Circumcision” law. This is a sacred rite that gentiles have stolen from the Hebrew people.

AJD
March 4th, 2009 | LINK

Jason: Only SOME gentiles ;)

John
March 4th, 2009 | LINK

If Prop 8 is upheld, I would really like to see a proposition banning Mormon marriages. If you can ban same sex marriages, I see no reason not to ban Mormon marriages in particular.

I also think that this would be a far better thing to put on the ballot than another proposition to legalize same sex marriage so soon after the Prop 8 loss.

Timothy Kincaid
March 4th, 2009 | LINK

Jason,

Yes, and as with the Prop 8 argument, they should insist that it be made retroactive.

AJD
March 4th, 2009 | LINK

John:

If Prop 8 is upheld, what I would like to see is the gay-rights movement finally growing a pair and actually fighting against the religious right. Some loud, angry, obnoxious demonstrations outside churches like the ones that followed Prop 8’s are a start. Barring illegal activities, I think just about anything would be fair, especially if it sends a clear message to the religious right that messing with the gays has repercussions. That’s what will make them think twice about these sorts of amendments in the future.

AJD
March 4th, 2009 | LINK

Tim:

That might help us get out of the recession too, as sales of those foreskin restoration kits will likely be included in the federal government’s budget as part of a “stimulation package” (sorry, I couldn’t help it).

Timothy Kincaid
March 4th, 2009 | LINK

An amendment to ban Mormon marriages in the state of California would not be able to get on the ballot. It is in violation of the first amendment of the US Constitution.

However, I wonder if an “oh, this isn’t targeting Mormons, it’s just upholding tradition” approach could be crafted.

Perhaps an amendment that bans all marriages that purport to extend beyond death. Clearly the state of California cannot dictate terms in the afterlife and so any marriage that intends to bind souls in another realm should not be allowed by the state.

It just so happens… that traditional Christian theology does not recognize eternal marriage. So this would, in a round about way, appeal to tradition and ban Mormon marriage.

I doubt it would work, but it would be fun to have the legislature propose it and bring it up for a vote. It might scare them a little about the consequences of bullying others.

Stefano A
March 4th, 2009 | LINK

An amendment to ban Mormon marriages in the state of California would not be able to get on the ballot.

Well then, in keeping with the spirit of the thought…

Resolutions to recend “faith” as a protected class in anti-discrimination laws.

Resolutions to recend tax exempt status for all churches.

Resolutions for the state to no longer allow clergy to act as functionaries of the state by issuing marriage licenses.

Resolutions for the state to no longer recognize “church performed only” weddings as marriages. I.E., as in several European countries, you want state recognition, you must have a civil ceremony. Any religious ceremony being optional and unnecessary for state recognition.

Stefano A
March 4th, 2009 | LINK

AJD

The next TV commercial should look like this:

Dark music plays in the background as lines of text flash across the screen:

“Fourth Century AD: Byzantine Emperor Theodosius decrees that men should be burned alive just for being gay”

“14th Century: 15-year-old Giovanni di Giovanni publicly castrated and killed just for being gay”

“1930s-40s: Nazis kill 50,000(?) people just for being gay”

“2008: California deprives an entire class of citizens of the right to marry the people they love just for being gay”

Personally, I’ve thought GLAAD and HRC should have been funding this type of PSA a long time ago. Similar to the “So Gay” campagin that was recently launched. Not necessarily with the focus being on marriage, but the persecution/denial of rights in general.

I also agree they need to more publicly and bluntly (take off the gloves) about confronting religious attacks, especially regarding “choice” arguments. I.E. reminding people that “religion” is a choice and still a protected anti-discrimination/hate-crime classification for instance.

I also think PSA’s need to be made to specifically target the junk science used enlisting the professionals conducting the science who have renounced the distortions and misuse, etc.

Duncan
March 5th, 2009 | LINK

You could use the slogan “Marriage should be about love, not genitals”.
But the trouble with insisting on judicial power over majority rule is that it can be easily reversed: if the judges can override the voters on matters not explicitly mentioned in the law, where will they stop? There could well be grounds for legalising polygamy. And it detracts attention from the need to win over ordinary people, which is far more important than any judge’s whim. Consider that the emancipation of Negro slaves in the United States and the vote for women in most countries, where there were much better grounds for a judicial settling, were done by simple majority vote.
Ultimately, the best for all parties is to remove the civil institution of marriage from the laws. Just ask the Religious Right: do you want your sacred matrimony to be approved by a corrupt, godless state?

Prop 8 Will Likely Be Upheld « Deanna’s Ramblings
March 5th, 2009 | LINK

[…] Los Angeles Times analyzes today’s oral arguments in the California Supreme Court (hat tip: Box Turtle Bulletin).  It’s not exactly encouraging.  But the court may take some middle ground that upholds […]

scotte
March 5th, 2009 | LINK

Timothy,

Excellent points on what kind of marriage (a particular theologically defined Christian marriage) they are defending.
Given that several religious denominations (Unitarians and the MCC come to mind right off) perform marriages for same sex couples isn’t there an equal church/state argument that Proposition 8 impinges on their right to perform marriages? I haven’t seen much discussion on this side of the issue.
One way or another we need to separate civil and religious marriage so we can stop the efforts to enshrine someone’s particular sacramental theology in law.

Timothy Kincaid
March 5th, 2009 | LINK

Duncan,

I agree that until one wins in the court of public opinion, one has not won.

However, you are incorrect in saying “Consider that the emancipation of Negro slaves in the United States and the vote for women in most countries, where there were much better grounds for a judicial settling, were done by simple majority vote.”

The emancipation of slaves was against the will of the states in which it was enacted (that was, after all, why they were fighting) and the right for women to vote was not enacted by a public vote of the male population.

Regan DuCasse
March 6th, 2009 | LINK

Hi Gang!
I went to the Village public viewing of the court hearing.

And each and every person I ever heard objecting to marriage equality invokes reasons that are ILLEGAL for everyone!

And I might agree that if there is any assertion that because homosexuality is a choice, it’s therefore fair game to exclude gay people from Constitutional protection, then certainly religious choice should be the first to go out from that protection.
Particularly because our country isn’t supposed to favor one religion over another and doesn’t enforce how one comports their religious choice.

The court had much that was unique and unprecedented in the case of Prop. 8.
But one thing is clear and can’t be reiterated enough: that a minority like gay people are one of several in our history who have been BRUTALLY isolated, discriminated against and still face physical, mental and social threat and abuse from the very populace that voted on quality of life issues for gay people.

The vulnerability of gay people isn’t unique, but it has SIMILAR qualities to how the lives of blacks were decided on by the dominant culture.
THIS is unacceptable and should be the paramount concern of the courts and the Constitutional clause of protecting a minority, especially like gay people FROM the tyranny of the majority.

Gay people don’t have to be especially reserved anymore. Lives are on the line and there is a general public out there VERY ignorant of the fact that there are more laws that discriminate against gay people than include them. Even in CA.

Domestic partnerships are NOT enough, not even close. Neither are CU’s.
We need to be OUT with the public. Talking to them, giving them printed materials and the benefit of how life is REALLY lived as someone gay.

The MSM allows too much of the anti gay to hijack and distort information and convince everyone it’s gay people victimizing everyone instead of the other way around.
Even if you ask point blank, who was hurt by all those gay couples getting married and they bring up that class of second graders, you could still brace them with the fact that those kids weren’t HURT by witnessing such a wedding of a teacher they loved.

But they might question why our laws wanted to hurt their teacher.

I’m willing to go door to door, face to face, on foot and open up the conversation.
Gay people have to OWN this, and tell those who hijack the issue to step OFF. THEY are effected at all. And we can point off just how their scare tactics did more harm than good.

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