Posted by Eugene Volokh:
California Prop. 8 Upheld, But Found Not To Affect Existing Same-Sex Marriages:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243357958
So reports the [1]San Francisco Chronicle, reporting that the decision
is 6-1. (Thanks to [2]How Appealing for the pointer.) I can't access
the opinion right now at the California Supreme Court site, presumably
because of high traffic, but I hope to comment on it as soon as I read
it.
In the meantime, good advice for the pro-same-sex-marriage forces from
[3]Chris Geidner (LawDork):
All weekend, Twitter and the blogosphere have been abuzz with the
Day of Decision rallies planned across California and the nation.
Its organizers, who include Robin Tyler and Andy Thayer, state:
�[I]f the court rules against us, make sure that our angry voices
are heard around the nation. Anger at denying an entire group of
people our civil rights is perfectly legitimate and appropriate.�
This reasoning is incomplete, misguided and horribly short-sighted,
and it is my hope that marriage equality leaders like Evan Wolfson,
Mary Bonauto and Andrew Sullivan would concur.
First, this is not a ruling about whether marriage equality is
correct or just. This is a ruling about whether the California
Constitution allows a measure like Proposition 8 to be voted into
the Constitution by the people. Even if there is some overriding
federal claim that marriage equality is guaranteed by the U.S.
Constitution, it was not raised by the parties here.
Second, we have spent the past decade decrying those who demean the
legitimacy of court decisions by attacking them. It would turn that
principled stand on its head to say that this court, which
previously held that marriage equality was guaranteed by the
California Constitution, is somehow responsible in today�s decision
for �denying an entire group of people our civil rights.�
Third, and most simply, this is not the righteous anger exhibited
this past fall. This decision is likely to be a complex one turning
one the intricacies of California constitutional law, as well as
its common law history and principles of equity. That is not
protest-worthy, however, so the decision will have to be simplified
to the point of being unrecognizable in order to provide the tinder
sought by the organizers to light the fire of protest in their
attendees� spirits.
Momentum is on our side, and today�s decision could provide us with
a great opportunity. It is not, however, the opportunity to bash
the court or otherwise misplace our anger about the slowness of our
path to equality. The opportunity will be to organize, to educate
and continue to expand equality across the country.
References
1. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/05/26/BAT817R2QD.DTL
2. http://howappealing.law.com/
3. http://lawdork.wordpress.com/2009/05/26/anger-leadership-and-change/
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