Thursday, May 28, 2009

Prop 8 upheld but fight isn't over

While I continue to remain personally opposed to gay and lesbian marriage (preferring civil unions instead), I have to say that the decision the other day by the highest court in California to both uphold Prop 8, as well as upholding the gay marriages that took place between the time the law was passed and Election Day last year is simply incomprehensible. (Opinion and dissent in Strauss v. Horton can be found here).

Simply put, the courts can't have it both ways. If the amendment is valid, then it should have invalidated the marriages that took place under the law up to that point. If it is invalid, then any gay or lesbian couple should be allowed to get married in California.
In my opinion, the 14th Amendment, section 1, is very clear on this: Equal protection of the laws. That means gay marriage is legal for all, in all 50 states. That Ted Olson and David Boies (the opposing counsels in Bush v. Gore) would join up to fight Prop 8 is encouraging -- even more surprising considering Olsen was married to Barbara Olson, the arch-conservative pundit who was killed when one of the 9/11 planes, American Airlines 77, slammed into the Pentagon, and that Mr. Olson himself is a member of the arch-conservative Federalist Society.

Presently, same sex marriage is legal in Connecticut, Iowa, Maine, Massachusetts and Vermont; while New York State now recognizes same-sex marriages contracted in foreign countries. Civil partnerships are legal in Oregon, New Jersey, Washington State, and in Washington DC -- and apparently civil unions are still legal in California. The trend lines continue to sway in favour of equal rights and it's just a matter of time before a federal case is taken to the US Supreme Court.
It's going to be a very close vote but I have a gut feeling that what is basically the correct decision will be made -- to drop the pretense and grant equality to all. It may not wind up being popular in many quarters, but it will be the just thing to do. After all, as the counsel opposing Prop 8 at the California Supreme Court pointed out, no one should have to sit on the back of the bus even if they get to their destination at the same time.

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