Wednesday, November 5, 2008

Not to rain on the parade, but...

We knew this was coming, right?

The LA Times reports that gay-rights advocates will be heading to the courts to challenge Prop. 8 (surprise, surprise):

After losing at the polls, gay-rights advocates filed a legal challenge today in California Supreme Court to Proposition 8, a long-shot effort that the measure's supporters called an attempt to subvert the will of voters.

Lawyers for same-sex couples said they will argue that the anti-gay-marriage measure was an illegal constitutional revision -- not a more limited amendment, as backers said.

The legal action contends that Proposition 8 actually revises the state Constitution by altering such fundamental tenets as equal-protection guarantees. A measure to revise the state Constitution can be placed before voters only by the Legislature.

Opponents of gay marriage expressed outrage at the move.

"This is exactly the type of behavior that brought us to this position to begin with," said Proposition 8 co-chair Frank Schubert. "The people voted eight years ago overwhelmingly in favor of traditional marriage and they seem to be saying in pretty strong terms again . . . that they favor traditional marriage, and yet this is not accepted by gay-rights activists."

"Now, if they want to legalize gay marriage, what they should do is bring an initiative themselves and ask the people to approve it. But they don't. They go behind the people's back to the courts and try and force an agenda on the rest of society."

Former California Supreme Court Justice Joseph Grodin said the legal challenge will be a "tough battle" for supporters of same-sex marriage.

Gay-marriage proponents see it differently. "A major purpose of the Constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the Constitution itself, only the Legislature can initiate such revisions to the Constitution," said Elizabeth Gill, a staff attorney with the ACLU of Northern California.

It is a matter of fairness, said Jenny Pizer, a staff attorney with Lambda Legal. "If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our Constitution. Proposition 8 suffers from the same flaw: It removes a protected constitutional right -- here, the right to marry -- not from all Californians, but just from one group of us," she said.

The lawsuit was filed on behalf of Equality California and six same-sex couples who did not marry before Tuesday's election but would like to marry now.

The state high court has twice before invalidated measures as illegal revisions, but some legal analysts expressed doubt that the Proposition 8 challenge would succeed. Similar attempts to overturn anti-gay-marriage measures have failed in Oregon and Alaska.

A spokesman for San Francisco City Atty. Dennis Herrera said he would also file a legal challenge.With more than 96% of precincts reporting in the state, the measure leads by a margin of 52% to 48%, prompting The Times to call the race. Opponents of the measure have not yet conceded defeat.

And thus we see why I've refrained from a victory dance of any sort.

(Although I do have to ask - and please, if you have the answer, do tell - but where exactly does the Constitution outline a "right to marry," and where does that so-called right entail the right to change the definition of a word? I'm not being facetious - if someone can give a good answer on that one, I'd love to hear it.)

What a bittersweet victory, too. Although I'm amazed and delighted that Prop. 8 passed, there are such tender hurt feelings on both sides. My heart - and my prayers - really do go out to the gay community, to those who feel slighted with this outcome. I know their sense of loss and anguish is real, and I can empathize with that. Please, everyone, keep them in your prayers, too.

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Jer said...

"no matter, we're taking this issue to court because it violates our fundamental constitutional right to non-discrimination. Before the dust settles, we'll be suing CA right back again and hopefully ending all threats to MY marriage"...

This seemed a more appropriate place for me to respond to this than where I found it. (out of respect to a friend)

This does not violate ANY constitutional rights. In fact, it is now constitutional law. That's the point of an amendment.

I see a problem in America. We're supposed to be a rule "Of the people, by the people, and for the people". This rule is maintained by the majority. While the majority isn't always right, this is the way democracy works. The problem is that we pander to the minorities. Majorities are punish themselves and their beliefs by this pandering.

I've been called "intolerant" because of my views on this issue. I think we misunderstand the definition of "intolerance". I tolerate you, but that does not mean I have to agree with you, cater to you, or give anything to you. If being "tolerant" of homosexuality meant I had to treat it as moral or normal despite my beliefs, then by the same token, some of you out there are intolerant of my religion by not adhering to its principles.

See? The argument doesn't work. I can't force you to believe, and you shouldn't try to force me to accept. I'll allow you to live your lives the way you deem right, but when it encroaches on my basic beliefs, I'll fight back.

Jer said...

wow.. I just read that back, and it was a bit disjointed and rambling. I apologize for the lack of coherence; I'm just tired.

Heather said...

Exactly... where does it say that marriage is a constitutional right? It's not and that is where the major flaw in the opposition lies. Marriage is a contract and it is up to the governing body (in this case, the people of California) to set the terms of that contract. Marriage is not a civil right, a constitutional right, a fundamental right or a right of any kind. It is a contract. Big difference! You are right, this fight is not over by any means. But I do want to thank you for all of your efforts and hard work. It's nice to know there are other people who feel the same way I do about this issue. (There are actually about 5 million people who feel the same way we do, hehehe.)

Until next time... (which will be soon!)

Anonymous said...

heather you are awesome. i'll wield the sword of truth with you anytime (not to be dramatic or anything).

Eric Dane said...

"Whether you like it or not" this is a democracy! The democratic process is what makes America...well....America. I'm grateful for democracy! I respect the votes of my fellow Californian's and Americans, even though I do not see eye to eye with the majority in all issues. I respect the blood that has been shed for democracy and I respect the laws and proposition that have been passed whether they are the ones I voted for or not. God Bless Democracy and God Bless America! (we really need the blessing right now)

Renee said...

Jer -- I understood what you said completely. And I share your last bit about the "right" to marry. That's thrown out there like a given. I've never heard an explanation of why this is a right.