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Logical musings


Lets assume that California Proposition 8 passes, and marriage gets defined as between a man and a woman.

Given the CA supreme court's earlier decision:
The state Constitution's guarantees of personal privacy and autonomy protect "the right of an individual to establish a legally recognized family with the person of one's choice," said Chief Justice Ronald George, who wrote the 121-page majority opinion. He said the Constitution "properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as opposite-sex couples." - SFGate.com


Prop 8 defines marriage, but it says nothing at all to the effect that Gays shouldn't be allowed equality. It tries to imply it, but it's just defining a word.

So lets run with that. How does Prop 8 interact with the equality established otherwise in the CA constitution?

Logically it seems to me that the only way to make those two work together is if it is interpreted that any unequal benefits that are afforded to married couples should be deemed unconstitutional. How would that be handled for federal marriage benefits, though? Should the logical result of Prop 8 be that the CA tax code would have to be modified to exactly counteract any federal benefits for marriage?

It seems like it'd only be fair.

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Comments

( 10 comments — Leave a comment )
susandeer
Nov. 5th, 2008 07:35 am (UTC)
Well, one logical next step would be to abolish marriage entirely. Radical? Yes. But fair. In a perfect world, the churches would lose their tax exempt status for stumping on the pulpit. CA's deficit would disappear, thus killing 2 birds with 1 stone.
credendovides
Nov. 5th, 2008 07:50 am (UTC)
IAWTC.

Actually, abolish marriage and make a gender neutral civil family thingy to replace it. Then let the religions marry whoever they do or don't want to. Separation of church and state for 800 please Alex?
jeran
Nov. 5th, 2008 08:07 am (UTC)
I'd love to see the CA Supreme Court say thusly:

"That's fine, but that amendment doesn't exempt marriage from the anti-discrimination clause. So you still can't treat people unequally depending on sexual orientation. And since you can't extend the right of marriage to everybody, we're sorry but you can't extend it to anybody. But that's OK, back when this was on the table the first time around you argued that civil unions were in all ways absolutely equal to marriage, so it'll be no problem offering straights only civil unions."

And then watch the screams begin. :)
(Deleted comment)
tilton
Nov. 5th, 2008 08:24 am (UTC)
There are some very interesting angles for legal challenges to Prop 8.

I am not a lawyer, of course. But someone pointed out that gay marriages that have already legally occurred cannot be overturned. That is, the new amendment will only be valid PRO-actively, and NOT retroactively. This means that some gay couples (those already married) will have a right that others (those not yet married) do not. That right there is a good start of a legal argument based on equal treatment.

It's not over, not by a long shot.
kyhwana
Nov. 5th, 2008 09:38 am (UTC)
Well, the oregon constitution was applied retroactively?
(Deleted comment)
jeran
Nov. 5th, 2008 04:28 pm (UTC)
I don't think the CA SC will find Prop. 8's terms untenable just because of another clause in the CA Constitution. I suspect they'll hold that, since it changed the state constitution to allow that, allowing that can't violate the state constitution. At best they'll hold that, as you said, it didn't explicitly rescind the "no discrimination based on sexual orientation" part and that anything the state does has to satisfy both Prop. 8's terms and the no-discrimination clause at the same time.

There's a possible Federal angle, though. You'd need a well-established church, not one of those tiny oddball ones but one that's big enough and been around long enough that even Prop. 8's supporters acknowledge that it's a real church, to stand up in Federal court and go "Our religious beliefs do not say marriage is only between a man and a woman. This amendment violates our right under the US Constitution to practice our own religious beliefs. It doesn't just codify someone else's beliefs, it goes beyond that into barring ours. And it does that without any basis outside their religious beliefs. You can make an argument against polygamy based on the coercion and fraud that normally accompanies it. You can make an argument against allowing minors to marry based on their inability to give consent. But the only argument you can make against allowing us to marry gays, the only argument the Prop. 8 supporters have made, is that it goes against their religious beliefs. And the US Constitution doesn't permit them to run rough-shod over our religious beliefs like that.". That argument might gain some traction. It'll only work if it's a well-established church, though, say the Unitarian Universalists or an Episcopalian church. You need one big enough that the "It's just a wacky cult." claim won't hold water.
revar
Nov. 5th, 2008 06:20 pm (UTC)
Maybe someone like "Almaden Hills United Methodist Church".
They even have a gay flag they keep having to replace when it gets stolen.
jeran
Nov. 5th, 2008 07:42 pm (UTC)
Exactly. They'd be an ideal choice. A lot of people grew up Methodist, and won't react well to a concerted attempt to paint the Methodist Church as a wacko cult.
krin_o_o_
Nov. 5th, 2008 10:20 pm (UTC)
Seems reasonable.

If benefits granted based on sexual orientation are unconstitutional
and Marriage is defined as being granted based on sexual orientation
then any benefits granted by the institution of Marriage are unconstitutional.

Deductive Logic and Cause-and-Effect was an optional part of the curriculum for these folks?

- krin

Edited at 2008-11-05 10:21 pm (UTC)
( 10 comments — Leave a comment )