The Californian Gay Marriage Decision
Russell Blackford
2010-08-06 00:00:00
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At the level of social policy, this was a good outcome. Proposition 8, the voter-mandated addition to the Californian constitution that provides "Only marriage between a man and a woman is valid or recognized in California", should never have been enacted. The outcome of the referendum back in 2008 was a tragedy.

Given the clear and specific terms of Proposition 8, combined with its status as constitutional law, there was no real prospect of challenging it under Californian law - opponents of the provision were forced to argue on a new basis, i.e. that it is inconsistent with federal constitutional provisions, specifically the due process and equal protection clauses of the US Constitution's Fourteenth Amendment. The challenge succeeded under both clauses.

I'm not a great fan of US jurisprudence on the Fourteenth Amendment, which has been murky over the years and has led to many contrived theories and interpretations. Based on existing jurisprudence, however, the judgment seems to be pretty solid. It will be fascinating to see how it is challenged in the appeals to higher courts that will undoubtedly take place. In particular, the US Supreme Court still has a conservative majority, and there's a prospect that several judges at that level will enter into quite fundamental questions about the Fourteenth Amendment. At least some (such as Justices Scalia, Alito, and Thomas) will seek to resist the outcome that has been reached so far. That's a way off, however, as there's a level of appeal in between.

Whether or not the institution of marriage is anachronistic and being maintained long past its original purposes and assumptions, it is still with us and permeates society in such a way as to affect people very seriously if they cannot marry. That is especially so in the US. The effect of Proposition 8 has to be assessed against that social backdrop. Proposition 8 was clearly motivated by bigotry against gays and moralistic disapproval of gay relationships, and it has contributed to the ongoing stigma that is applied to gays.

What becomes clear is just how much the campaign for Proposition 8 relied on bullshit arguments that then had to be repackaged significantly for presentation in the court. We've seen it all before, but it's good to have the arguments all set out in one document - including fatuous arguments that religious parents did not want their children being exposed to ideas of gay equality. This idea of an absolute right to control the indoctrination of your children must be challenged at every opportunity.

By and large, the proponents of Proposition 8 were a pretty dismal, bigoted crew ... and this becomes crystal clear when their arguments are placed under a judicial microscope.

The whole judgment is well worth reading. It contains extensive sociological information (with pointers to a lot more) about gay relationships, gay families, and so on. It provides a valuable resource that will be worth returning to.

Chalk this up as a victory for the good guys, though of course with appeals lying ahead we can't be sure the judgment will stand. This saga has a long way to run, and we'll have to wait.