May 26th, 2009


Hey, wait a minute....

From the Prop 8 ruling (which, in case you hadn't heard, upheld the amendment):
Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
Does this mean that we will now -- well, as soon as someone files the right lawsuit -- have constitutionally-required civil unions in California, with all the state-mandated rights and protection of marriage? I can't see how it can mean anything else.

Edit to clarify: In particular, I read this as pretty clearly saying that the "equal protection" parts of the State constitution that they used last year in saying that existing domestic partnerships were insufficient are still just as valid as they were then, and explicitly laying down precedent that Prop 8 does not invalidate those parts. The obvious conclusion seems to me to be that, since the State now can't satisfy the requirements of that ruling by allowing same-sex marriage, it must now satisfy it by instituting same-sex civil unions that are legally equivalent.

It's not marriage, but at least it's still something.

(And, honestly, it strikes me as a bit of reasonably clever legal hair-splitting; they avoid a ruling invalidating the amendment that they presumably felt that they couldn't honestly uphold while adhering to their promise to uphold the constitution in all its imperfections, and yet in the process interpreted the amendment to mean, in a strictly legal sense, almost nothing.)

Another thought on Prop 8.

zwol says about what I wish I could have said on the subject, and more.

A key quote: "As you might expect, appellate judges are masters of hair-splitting — they have to be — what you might not expect is that they’re also very, very good at subtext. One of the subtexts that you see fairly often boils down to 'We looked under every stone for an excuse to rule otherwise and could not find one.' This decision is dripping with it." He then goes on to point out some examples.

Meanwhile, if the state goes bankrupt because of the stupid proposition system we've got (and the related inability to pass budgets by simple majority), can we reboot and do away with it?