Positive Liberty

I’m sure we all knew this was coming.

Sponsors of the California ballot measure that banned same-sex marriage are seeking to nullify thousands of marriages between gay and lesbian couples performed after the state Supreme Court ruled them constitutional.

This was the real monkeywrench in the Prop 8 battle, and I’ve been waiting for it to appear. It’s one thing to amend a state constitution to prohibit same-sex marriages in a state where there currently are one, as had been the case in each case before California. I’d still call it a violation of fundamental rights, but that’s a fuzzy statement that can’t be empirically proved. It’s quite another thing to pass a constitutional amendment that eliminates a legal right currently exercised by a large number of people.

In the wake of Prop 8’s passage, and assuming the California courts don’t simply nullify it as a violation of fundamental rights (which is a possiblity) there are only two possible outcomes, both of which are legally problematic.

1. Two classes of citizens are created: those with valid same-sex marriages and those who cannot have valid same-sex marriages.
2. Marriages that were legal at the time they were performed are retroactively annulled by the state.

You don’t have to be a civil libertarian to find both of those generalized scenarios unpalatable, and I think that is what will be the legal downfall of Prop 8. I suspect the California courts won’t find either outcome legally acceptable, and will try to find a way to nullify it along those grounds, not that it violates fundamental rights, but that either of its consequences are unacceptable under the California constitution. (Not that I’m an expert in Cali’s convoluted constitution, but the first outcome surely violates its equal protection clause, and surely there’s some phrasing in there they can use to strike down the retroactive invalidation of a legal contract.) If the California Supreme Court strikes down the ballot measure on state constitional grounds, there’s no appeal to the US Supreme Court for Prop 8 proponents. If it upholds the measure, there is such an appeal–although perhaps not one with bright prospect–for its opponents.

The Prop 8 proponents really had no plausible way to duck this issue, but I think–or at least hope–it will be their downfall. And if they do win in Court, I think the prospect of the State forcing divorce on loving couples (hat tip: Ed Brayton) will cause a goodly number of people to regret their vote. There’s a certain overt viciousness in having the state break one’s legal ties that is not so obvious to people before the fact. I can just see a television ad with a hearbreakingly sad little child staring at the camera and saying, “Why did the government make my parents get divorced?”

Not only is the war not over, this particular battle isn’t even over. The vote for Prop 8 was just one skirmish in the California battle, whose outcome is still to be determined. As de Tocqueville said over 170 years ago,

Scarcely any question arises in the United States that is not resolved, sooner or later, into a judicial question.

It is in the combination of both the political and judicial questions that we will eventually have our answer. I’m still betting that same-sex marriage will be firmly established, in the medium run, if not the short run, in the Golden State.

I was front and center at San Francisco’s City Hall today, on a photo assignment for The Bilerico Project and IN La Magazine…

One gentleman, a supporter dressed head to toe in leather, was playing his guitar and suddenly dropped like a tree at my feet, before I could bend down to check his pulse, cops swarmed the guy and started CPR. They were very professional.

Sadly, I think he might have died. They resuscitated him for 20 minutes and he did not respond. They started an IV of 1 liter of saline and gave him O2. About 10 minutes in, he swallowed and kinda of coughed and the crowd cheered.

It was so quick. He just fell. Within minutes he was ashen and grey.

One of the Christian protesters was chanting at his body - “Satan Got You!” “What is the Devil whispering in your ear about now?”

I yelled at the guy, “If you are such a Christian, why aren’t you praying for the guy dying on the concrete?” The protester replied, “God killed him for loving fags!!” The cops even stepped in and told the guy to shut his mouth.

Why do I blog this stuff? Because otherwise my grandkids will never, ever believe it.

Jennifer Roback Morse recently published this piece offering a number of arguments against same-sex marriage. Several are old and unconvincing, but others I think are worthy of more consideration, even concern. Continue Reading »