Tuesday, May 26, 2009

Prop 8 Ruling

This is a longish post taken in large chunks from a conversation with a friend who is understandably quite upset about the news from California.

My friend takes cold comfort in the fact that existing marriages stand. To paraphrase him, why should those 18k couples have valid marriages and the rest of the GLBT community not. He has a point: it is offensive to most sensibilities of justice that some GLBT couples get "marriage' whereas the rest must settle for "separate but equal."

I say the blow to equality was dealt in November, and today's opinion merely reminded us of that problem, but didn't itself strike an additional one unless you put all your hopes onto a slim, almost impossible chance of reversal.

I have not read the full 186 page opinion, so I may still be mistaken, but it seemed that the controversies at issue were about amendment versus revision of the California State Constitution and not directly Equal Protection Jurisprudence, such a ground seemed shaky one at best, but the only one that could really assert that the "constitution is itself unconstitutional."

As for Equal Protection, although California recognizes the GLBT community as a suspect class deserving strict scrutiny (this designation allows courts more easily to overturn discriminatory laws and is why the court was able to overturn the legislative ban on same-sex marriage in the first place), currently the Federal courts do not. Romer v. Evans and Lawrence v. Texas came out our way despite this (thankfully), but in the case of marriage I fear that the opponents have arguments that can reach the very low bar of "rational basis" (which doesn't even require factually correct basis).

The fact is that Equal Protection Jurisprudence does a good job of mocking itself, and the California Supreme Court, as far as I can tell, didn't have much choice except to uphold the odious amendment. If we want to continue through the courts, the real challenge is to convince the federal courts that the GLBT community deserves "suspect class" designation. By my count, we seem to fit all the criteria: a discrete and insular minority who possess an immutable trait, share a history of discrimination and cannot adequately protect themselves via the political process.*

But, my friend reminds me, good reasoning or bad, the outcome is morally wrong.

And my firend is absolutely correct, but sadly the strength of the reasoning matters a great deal. A good result on flimsy grounds is in many ways worse than a bad result on solid ground.

A poorly reasoned result intensifies the resolve of opponents and creates the kind of legal and political minefield we have seen with regards to abortion jurisprudence. A good result on bad reasoning becomes a talisman for both sides, who perceived it as being forever vulnerable to the whimsy of the court. Therefore both sides devote resources to either upholding it or defeating it, making it difficult for the matter to be settled socially or addressed through sustainably long term means. Also, it may have the consequence of lowering the bar for both sides, meaning it becomes easier for our opponents to win their battles.

On the other hand, a bad result on good reasoning (like this) allows the losing side to accept the defeat and work to either change the circumstances of future battles (remember California still has unbelievably lax constitutional amendment procedures) or find battles within the current circumstances that are more winnable. Once we change the circumstances or the battles, battles won are much more robust than if they rested on flimsy opinions.

In a generation, Prop 8 and amendments like it will be remembered as disappointing and embarrassing hiccups on the road to true equality, if they are remembered at all.
*Update: Someone is moving forward on making the Equal Protection arguments in Federal Court (as well as Due Process arguments). Read the complaint here (PDF). Also note that the attorneys filing are the attorneys who argued each side of Bush v. Gore, and according to Ted Olson (the Republican) "This is about the rights of individuals to be treated equally and not be stigmatized." And that the two attorneys from each side side of the political spectrum "wanted to be a symbol of the fact that this not a conservative or a liberal issue. We want to send a signal that this is an important constitutional issue involving equal rights for all Americans."


Less Confused said...

I don't comment enough, I just realized many of your posts recently have not had any comments.

I just wanted to thank you for writing what you do, as another gay republican, I find it refreshing to read a blog I can agree with.

I wish you could write more, but understand when you don't. Just wanted to say thank you because so few ever do.


Maggin said...

You know what, it is as simple to stand up in front of the american public and hold up the fact that not too long ago, we had a very large court case about how we should have the right to think.

Inheret in the Wind, I'm sure you've probably read it, is the play based off of this case. Now let me think for one second, we can make plays about such a controversial issue and deem it okay for others to be allowed to think and learn about all different religions, and not just christianity anymore? Surely such a big step forward in humanitie's morals would open up the minds of such closed minded people, who cannot see one simple fact:

How is it going to hurt you if two people of the same gender live a life, or love eachother?
Of course there are boundaries but just as with everything there are. Boundaries for religion, boundaries for PDA, but over all, it is a very sad thing to see people who claim they are not racist, yet judge people that dress a certain way. To see people who say it is PROPOSTEROUS to not let other's choose their religion, yet say a same gender couple is an unethical way of life.

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