Prop 8: WTF

Last week, the California Supreme Court issued a 6/1 decision to uphold Proposition 8, a ballot initiative to amend the California constitution to define marriage as between a man and a woman that passed on November 5, 2008. The issue before the court was not whether or not marriage should be limited to heterosexual couples - the Court had already held that marriage rights should be extended to all couples in California - but whether or not the initiative was the proper way to amend the state Constitution. Those challenging Proposition 8 argued that adding this to the constituion was such a significant change, especially because the state had just legalized marriage equality months prior and had already issued 18,000 marriage licenses - that it should be considered a revision instead of an amendment, and thus could only be passed through a constitutional convention. The state, represented by Ken Starr, argued that it was merely an amendent and thus could be passed through a popular vote. The Court, unfortunately, agreed.

In its opinion, the Court stated that this was merely a procedural issue. That gays still have rights and that in "every other area but marriage" those rights would be protected using strict scrutiny (that they would be considered a somewhat protected class). Unpacking that phrase - "every other area but marriage" - means this: every other area but survivor rights, remedies for loss of consortium, hospital visitiation, free name changes, tax free insurance benefits and on and on and on. The idea that this is merely a narrow issue of the nomenclature of a relationship is simply not correct.

This opinion is additionally problematic because it implies that, in California, ballot initiatives can be used to avoid the protections afforded by the constitution's equal protection provisions. If a popular vote is all that is needed to amend the constitution to reduce civil rights that have already been granted, that means any number of other rights can now be infringed upon.

For the reasons listed above, this opinion has set of a wave of anger and upset in the lesbian, gay, bisexual and transgender community. Not to be left off the bandwagon, the attorneys who were on opposite sides of the Bush v. Gore case have filed a federal law suit challenging the Court's decision. This is a highly risky move. Neither of the attorneys have a history of same-sex litigation. They haven't been on the front lines or part of the decades long strategies that have been put into place. Bringing this lawsuit could, should it not succeed, create federal precedent that would set the movement back in a significant way. In short: this suit could be highly destructive. Thanks, dudes, for using our movement for your glory.