Writing on Prop 8: The Nation disappoints and Justice Moreno has the last word.

Posted on May 28, 2009
Filed Under Deep Thoughts, Same-Sex Marriage | 318 Comments

Justice MorenoWhen the sad, but expected California Supreme Court Proposition 8 ruling came in yesterday, I automatically turned to one of my favorite writers, Arthur Leonard, to help me make sense of it.  Sure enough, Mr. Leonard quickly turned in a high quality report on the court’s decision. Arthur Leonard is, in my opinion, one of our best writers.  In fact, he is perhaps the best legal writer on the web.  What is particularly impressive to me about his writing is the objective quality of it.  Mr. Leonard is a law professor and his prose reflects both a deep knowledge of the law and an uncanny ability to explain it to the rest of us.  While I was disappointed by the ruling, I came away from his article with a deeper understanding of this highly complex legal issue.

Next I turned to The Advocate’s website.  They featured good reporting on the decision plus responses from Lambda Legal, Antonio Villaraigarosa and an excellent letter from the head of LA’s LGBT Community Center.  In short, The Advocate rose to the occasion splendidly.

I wish I could say the same of The Nation. On this occasion, the renowned liberal publication failed miserably.

The author of the article on this subject, Richard Kim, began his dispatch with the statement:  “I haven’t fully digested it yet.”  Translation: “I haven’t read it all yet.”  Of course that didn’t prevent him from editorializing on the subject.  And it shouldn’t come as a complete surprise to the reader that his report reflected pre-existing biases.  But the real jaw-dropper came in the second paragraph:

First, under California law, there is no material difference between marriage and domestic partnership. Not one of those 18,000 married couples got any new rights or benefits that California’s DP did not already provide; they only acquired the term marriage itself. Of course, as a state, California cannot grant any of the federally provided rights and benefits of marriage, but as a matter of state law, the two categories are substantively equal.

Hold the phone.  The reason why gay marriage existed in the first place in California was because the California Supreme Court ruled that these two categories were not substantively equal.  Connecticut has gay marriage today because the Connecticut Supreme Court ruled that Domestic Partnerships were not substantively equal to marriage.  Here’s the probem:  Domestic Partnership is an extremely new term.  So new, most people don’t even know what it means.  By contrast “marriage” is an ancient term that almost everyone on the planet can define.  So while Domestic Partnership can be equalized with marriage in terms of state laws and regulations, nothing can equalize these terms in day-to-day life.  Is a “domestic partner” a family member?  Does that entitle him or her to family discounts?  How about equal access to accomodation?  Hospital visitation?  Anecdotal reports from New Jersey (where Domestic Partnerships are up and running) show that partners are routinely denied hospital visitation.  How is that possible?  Because no one really knows what a “domestic partner” is.  And everyone in the world knows what a spouse is.

I am not the first person to equate Domestic Partnerships with being put in the “back of the bus.”  But if you think about it, this analogy is surprisingly apt.  Because, on the face of it, there is nothing inherently unequal about sitting in the back of the bus.  I, myself, routinely make the decision to sit in the rear of the bus.  What is unfair is the selective demand that a certain group of people be forced to sit in the back of the bus.  Add to this the discrimination against that certain group on a whole range of issues:  from being prohibited to serve in the armed forces to legal discrimination at the workplace and the net effect is well… wrong.

Legal decisions are routinely reversed.  I have lived long enough to see the Supreme Court of the United States reverse itself on sodomy laws.  In the meantime, perhaps Mr. Kim should take the time to carefully read Justice Moreno’s sole dissenting opinion:

In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.

History will prove him right.

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