same-sex and prop 8
I’ve read the latest legal decision that has caused some controversy (from here). As far as I’m concerned this should be considered a win for the LGBT community; but I have a limited understanding of the American legal system, so I may need some help from American friends.
The principal issue before the courts was whether a plebiscite like Proposition 8 was a constitutionally valid way of amending Californian law. Interestingly, it had almost nothing to do with same-sex marriage. Indeed, throughout the decision the judges continually stress that
“our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question.”
Far from being about same-sex,
“the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process”
So a hundred pages of legal decision later, they decided that yes, if Californians vote to amend law like they did with Prop 8, it should have legal force, and the law should be so changed.
Now we may take issue with this; maybe its not so great that we encourage a public vote on every issue. But whatever we feel about plebiscites, we shouldn’t read this latest news as an endorsement of discrimination against same-sex couples (even though it is, and I don’t mean to belittle the incredible struggle that those facing this sort discimination must face). If anything, I think that courts have allowed the issue to be revisited in exactly the same manner. This keeps the door open for a future referendum on definition of marriage.
There are two important parts of a legal opinion. One is the result and one is the reasoning. In this case, the result is bad for the LGBT community but the reasoning is okay. The desired result was that the court would hold that removing a right to gay marriage would require a revision rather than an ammendment.
