A Stitch in Haste

For those who have the free time, the oral arguments regarding the challenge to California’s bigot amendment can be viewed live at this link at 12PM ET; 9AM PT.

Now is a good time to reflect on what the situation would be even under the worst case scenario:

• Those gay couples who wed during the window before Proposition 8 was enacted may see their marriages respected even if Proposition 8 is upheld.
• Even if not, and for those who were not able to marry during the window, California still offers them a relatively robust domestic partnership status. That status does not quite rise to the “all but name only” status of civil unions in New Jersey, but it’s a close (if distasteful) consolation prize.
• Much more importantly, a key substantive holding in In Re Marriage Cases will remain valid, as it is not covered by Proposition 8: namely that sexual orientation is now a suspect classification in California, and therefore any form of discrimination (other than marriage) based on sexual orientation will be subject to strict scrutiny. This is the first time any high court has so ruled, and this can become a significant springboard to argue for heightened scrutiny of anti-gay laws in other states and, perhaps one day, in the federal courts. (Recall that California does not recognize “intermediate-level scrutiny,” which is the standard used under federal law to review gender-based discrimination. Most scholars and advocates, myself included, have held that intermediate-level scrutiny would therefore be the appropriate framework for sexual orientation discrimination. Since that wasn’t an obvious option for the California Supreme Court, they went with strict scrutiny instead.)

Finally, one must recall going into the case how strangely positioned this litigation is. You have a dysfunctional state with a dysfunctional constitution that, at the end of the day, isn’t really a constitution at all. A document that can be amended by a tiny sliver of the population can’t really be considered a true “constitution” (not everyone can vote, not everyone who votes does, and even then you need only “50% +1″ of them to amend). The California Constitution is, bottom line, little more than a gilded tracking poll. The purpose of a true constitution is to frustrate mob rule, not to catalyze it.

The California Constitution was a disgrace even before it was amended to enshrine bigotry. Whether gay marriage will be, or even ought be, the tripwire that compels the California Supreme Court finally to stand athwart and yell “Stop!” is unclear.

But what is perfectly clear is that, at worst, this is just another pothole on the expressway to full equality.

Previously:
–On the California Gay Marriage Decision
–And the Culture Wars Go On…
–On the Petition to Overturn Proposition 8

Filed under: Gay Rights and Issues, Law, Society, Religion, Culture Wars, Updates