Posted by Brad @ 3:05 pm on February 7th 2012

This Just (Still) in: Prop 8 Unconstitutional

So says a federal appeals court panel, upholding the lower court rulings.

I know Rojas and I go round-and-round on this, and to my mind there’s no question that he’s right that, from an optics and even consensus-building standpoint, legislative or referendum-based advancement of marriage equality is the preferably route. But the problem is, when a questionable law is in front of you, you have to rule on it – you can’t rightly NOT rule an unconstitutional law unconstitutional for secondary or strategic reasons. And to my mind, that Prop 8 or any law barring same sex couples from marrying is patently unconstitutional is really beyond argument. You just can’t define a set of state benefits reserved for one group of people, and not another set, without proving, to a high standard, a state interest in doing so, which in this case no defendant has ever been able to do.

To my mind, any state law that explicitly seeks to create separate but equal categories of rights is going to run afoul of their state constitutions. And any amendments to those state constitutions will run afoul to the federal constitution. And any federal legislation (i.e. DOMA) that seeks to square that circle is also going to run afoul of the federal constitution. And no matter what moral, cultural, or political questions you seek to surround the matter with, at the end of the day it really is as simple as basic arithmetic. Applying Variable X to Formula A, you can solve for it only one way.

Do you hear that, Mister Anderson? That is the sound of inevitability.


  1. Oddly, your rationale is not the one the courts chose to endorse in this case; they ruled narrowly on the use of the initiative process to repeal a right already recognized.

    It could be that subsequently the courts will choose to recognize the right in the way you prefer. In the meantime, California becomes a laboratory in which we may determine whether such a course is desirable.

    Comment by Rojas — 2/7/2012 @ 3:25 pm

  2. Yeah, I’m speaking broadly here. Obviously, haven’t read the decision yet (I posted minutes after it was announced).

    I still think your hang-up on the “desirable” framking is weirdly anachronistic. What does desirable have to do with it? Theoretically, if a law is unconstitutional, a judge doesn’t have a choice as to whether to rule it so or not (in practice, they often weasel out of it, or rule around it, but doing so creates a helluva lot of problems). And, presuming you can’t corral all 37 million California citizens against any one of them filing suit, a law like this will go to court, at which point, if you’re an advocacy group, your decision isn’t whether to pursue judicial ends or legislative ones (as if, in pursuing the legislative side, the case worming its way through the judiciary just disappears rather than gets ruled on), but rather whether try to win the ruling, or be okay potentially losing it.

    It’s kind of like saying, after getting arrested for marijuana possession despite having the evidence planted on me, to bypass fighting the charges in favor of trying to persuade the arresting officers to recant.

    Comment by Brad — 2/7/2012 @ 3:36 pm

  3. “Desirable” refers to the question of whether plaintiffs’ interests are broadly served by filing suit, and whether the interests of individual homosexuals and gay rights organizations more broadly are served by active participation in such a strategy.

    My conjecture in previous threads was that the pursuit of a legal strategy instead of a consensus-building effort might in the short term broadly hurt the gay rights movement by imposing a set of legal standards in defiance of pre-existing public consensus. My analogy was to the legalization of abortion. I have been asked what forms that backlash might take.

    It’s no longer an academic question. This is pretty much the textbook case for the scenario I’d envisioned. We’re now going to find out whether my suppositions had any merit or not.

    Comment by Rojas — 2/7/2012 @ 3:41 pm

  4. But it’s not a serviceable supposition. In a very real sense, the interests of individual homosexuals and gay rights organizations are going to be on the line whether they deem the judiciary a “desirable” route or not. All it takes is one same sex couple out of California’s 37 million citizens to file suit, and suddenly the rights of everybody are on the line in a very real way. You keep framing it as a strategic decision on behalf of the gay community or liberalism writ large, which doesn’t make any sense.

    It WILL go to court – whether that’s “desirable” in any strategic or political consensus sense is worse than academic, it’s entirely, and impossibly, counter-factual. It’s going to land in a judge’s lap whether you’ve made it part of your action plan or not. The question then becomes, if you’re a person whose civil rights are being decided upon, whether to try and get a fair hearing that accurately represents your interests…or, you know, not. Your point might have some validity if you could “opt out” of being under the jurisdiction of, you know, the judiciary, or if high court rulings weren’t, you know, binding. But in the real world, I just don’t see how your desirable point has any bearing (save in a “don’t engage it at the exclusion of those other routes, on which we totally agree).

    And, again, there is even LESS of a choice for the courts or judges on whose desks these cases land, and who, generally speaking, are legally obligated to judificate one way or the other.

    Comment by Brad — 2/7/2012 @ 4:20 pm

  5. Okay, then, don’t treat it as a policy preference, but as a statement of fact. California will demonstrate the degree to which legal enforcement of marital rights claims increase societal tolerance of homosexuality. Happier?

    Comment by Rojas — 2/7/2012 @ 8:07 pm

  6. Perhaps this decision will do little or nothing to increase public acceptance of homosexuality, but it will do something to make sure that the rights of homosexuals are respected, regardless of public acceptance.

    In a way, I think you could argue that that’s the purpose of the court decision–to support the notion that those rights exist whether the majority likes it or not, and to make sure that “acceptance” or “tolerance” is not a prerequisite of the right to equal legal status.

    Comment by Talarohk — 2/7/2012 @ 8:51 pm

  7. Not necessarily, no.

    LEGAL recognition of one’s rights is very important, and a goal worthy of pursuit. But the universe of our experience is not composed solely of interactions with government.

    The question I have repeatedly posed here pertains to the overall arc of acceptance of homosexuality in America. The debate, as I have understood it, pertains to the extent to which legal recognition of rights drives acceptance more broadly, and under what conditions it does so.

    I am very interested in what happens next in California. Here we have a situation in which legal opinion is not only demonstrably in front of public opinion, but demonstrably at variance with it. So does the public follow? And if not…then, what, exactly?

    Comment by Rojas — 2/7/2012 @ 11:05 pm

  8. I’ll be very interested as well. Right now, I live in a pretty conservative area of California (to those who live in other states: yes, those do exist), actually in Darrell Issa’s area. My feeling from this area is that the younger folks are generally accepting of homosexual people, slightly less so of the idea of full marriage rights (although I’d still guess a majority of young folks would go for it). Older folks are pretty staunchly against it on average, or so it seems to me.

    I’ve lived around here for five and a half years, and I think the attitude is slowly warming. My guess is that even in a conservative area like this, there will be majority support for gay marriage within ten years.

    I guess the interesting question is whether this decision will actually impede that–and whether it should matter if it does or not.

    Comment by Talarohk — 2/8/2012 @ 12:05 am

  9. Well, it doesn’t sound like we’ll be getting a very clean read in any case, as you said. Just as likely SCOTUS punts.

    Your supposition here is valid, although again to me a bit academic. I think Tal has it right, and I think the other thing you’re not appreciating is that, once it hits the courts, your rights are going to be decided one way or the other, so there really is little recourse but to be an active participant in that process.

    Finally, there are already test cases for judicial-opinion-ahead-of-public-opinion on this issue: namely, every state in which the right of marriage was granted to same sex couples via judicial opinion. We’re now some years on in that experiment (as in, say, MA, where in 2005 the majority was opposed to same sex marriage), and, counter your hypothesis, it’s actually seemed that once same sex marriage has been instantiated somewhere for a period of time, it becomes normalized (this has been true internationally as well). That’s true for a lot of gay issues, actually (think the repeal of DADT, which was a really big deal precisely up until the point when it became the status quo).

    Comment by Brad — 2/8/2012 @ 10:34 am

  10. I don’t see how you are supposed to objectively determine if the legal challenge to Prop 8 had a postive or negative impact given that you have no control group. Lacking access to an alternative universe in which Prop 8 was not aggresively challenged in court, how are you supposed to know?

    Besides, these things are never done independently. The battle is fought on multiple fronts, and far from being mutually exclusive, they seem mutually reenforcing. The act of challenging in court puts gay couples in front of cameras, encourages coming out, and forces some fence sitters, apolitical types, and even traditional marriage supporters to face friends and family with a differing view.

    As an aside, I don’t think abortion is a fair comparison, it is much closer to religous or ethnic equal protection. A lot of that was fought in the courts.

    Comment by Jack — 2/8/2012 @ 12:51 pm

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