Tuesday, May 26, 2009

Don't Let Him Bleed Under Your Nails

The California Supreme Court issued a ruling today that many amongst us have gotten rather pissy about. It's worth looking at what the Court thought it's task was.

From the preamble:
 "Second, it also is necessary to understand that the legal issues before us in this case are entirely distinct from those that were presented in either Lockyer or the Marriage Cases.  Unlike the issues that were before us in those cases, the issues facing us here do not concern a public official’s authority (or lack of authority) to refuse to comply with his or her ministerial duty to enforce a statute on the basis of the official’s personal view that the statute is unconstitutional, or the validity (or invalidity) of a statutory provision limiting marriage to a union between a man and a woman under state constitutional provisions that do not expressly permit or prescribe such a limitation. Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution." (Cf. full opinion here--emphasis in original)

If we take the Court at its word (and I see little to no reason why we shouldn't), this decision had little, if anything, to do with the rights of gay people to marry. Rather, they saw the question before them to be: can people of California alter the Constitution through the initiative system? They ruled that citizens can, and to that extent, I agree with them whole-heartedly. Further, they go to great lengths to argue that their initial ruling on marriage rights for gays was made prior to the Constitutional amendment, and was thereby democratically "vetoed," if you will, by Prop 8. However, Prop 8 itself can be overturned through popular balloting, too.

Unlike many of my peers, I do not see this as a defeat, nor do I think that the Court betrayed any hostility towards the cause of equality before the law. Rather, they affirmed the right of citizens to change the law. (And very nearly encouraged California's citizens to take up the issue next year and put it on the ballot again when they wrote: "...our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution.  Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question.  It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.")

The other side of this coin is that those who support the amendment effected by Prop 8 are gravely mistaken if they see this as a victory. The Court did very little more than affirm the initiative system; it did not uphold Prop 8 in itself. (Quite the contrary, given the Court allowed to stand the legality of all marriages prior to Prop 8's passage.)

I think, perhaps paradoxically, the Court gave the Queer community in California, and nation-wide, too, the necessary shot in the arm it needed. We have become too accustomed to judges issuing opinions that favor their cause rather than actually make our case to the broad public. The irony of our so very posh "Milk" fervor is that his actual political action is ignored: the man traveled the whole state and formed expansive coalitions that utilized grassroots outreach to defeat the Briggs Initiative (Prop 6). We need more of that, if in fact we want to have the right to marry, and less whining about how Justices are homophobes or confused or what have you. This is the time for real politics.

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