It ain't over. They're going to have the constitutional amendment declared
unconstitutional. The arguments are 1) this amendment is significant enough
a change to the constitution that it requires a 2/3 vote of the legislature,
or a full constitutional convention, not a mere simple majority
(notwithstanding that a mere four votes were enough to change the meaning of
the constitution in the other direction), and 2) it violates the equal
protection clause in the same state consitution.
Me: Our attorneys are optimistic about this point.
They'll also try the 9th Circus on Federal constitutional grounds. And
Moonbeam is also advancing the argument that, despite the plain language of
the amendment, it has no effect on the people already "married" under it,
because it doesn't explicitly state that it is retroactive. It doesn't
matter that the words plainly imply retroactivity, it doesn't use the word
Me: I'm not too worried about the retroactive point. A large (but unknown) percentage of th 18,000 same sex couples who got CA marrige licenses were from out of state, and of no legal significance to us. (They might be a nuisance in their home states, which was their point, but that is, strictly speaking, someone else's problem.)
And past experience indicates that the divorce rate of gay couples is quite high. Most them won't be married after 5 years in any case.
Keep your eye on the big picture here.
There is no point at which these people will stop. They will use any
mendacious argument, any dishonorable tactic, any illegitimate exercise of
raw judicial power. And they will do so until they get their way.
Me: That does appear to be the case, doesn't it? It is an interesting question as to why that should be. I hope to write about that someday. when my in-box empties! (Just kidding. Keep writing! We love hearing from you!)
There is an obvious Californisque solution for the "gay marriages" that were licensed between the time the California Supreme Court imposed (and chose not hold off till the vote was done) and the passage of Proposition 8.
They just transition to domestic partnership status. For them, there'd be nothing lost in that lcoalized solution.
But technically, those licenses were as much in error as was the 4-3 judicial opinion that misled them and the license officials.
As for the so-called limbo, SSMers can blame the pro-SSM judiciary for not waiting till after the vote on Nov 4th. Their haste was probably meant to influence the amendment campaign so I take it as yet another political act of the judiciary which has been rebuked. The Judiciary rushed. The SSMers rushed to the license offices. The limbo is self-inflicted. But can be self-corrected, too.
I think that this should also cast great doubt on the part of the court's pro-SSM opinion that would make sexual orientation a suspect classificaiton in the states constitutional jurisprudence.
Their reasoning is profoundly flawed and the state amendment now includes text that skuttles the basis for the courts's writing sexual orientation into the constitution.
There was no discrimination based on sexual orienation in the marriage law, anyway, but now that is made clear because the state constitution's text cannot be read without each word of the amendment carrying its plain meaning.
And that meaning is precisely the same as the statutory provision that the People had approved in 2000 and which the court had disapproved -- or misread -- just a few months ago. In fact, it is the same meaning that was in the legal tradition of California long before the year 2000.
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