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The 140-Page Majority Prop 8 Opinion In A Single Paragraph

If you learn this single trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person… until you consider things from his point of view.


Until you climb inside of his skin and walk around in it.

To Kill a Mockingbird (from the screenplay)

Best summary of the 140 page majority opinion (.pdf of opinion here) in Reading the Decision at the Daily Dish by Andrew Sullivan.  This opinion eviscerates and then upholds Proposition 8 as constitutionally inoffensive.

John Culhane parses the prop 8 ruling:

The majority went on for almost 140 pages. In brief, their points — which I’ll next explore in somewhat greater depth — are these: (1) The California Constitution is easy to amend, and that’s not something we can change: (2) The deprivation of rights isn’t that big a deal, really, because all that’s been removed by Prop 8 is the word “marriage” rather than the rights that go with it; (3) Based on precedent and constitutional history, Prop 8 is a permissible amendment to the state’s constitution — not a more substantial revision, which would require prior submission to the legislatures (and a 2/3 approval) before going to the voters; (4) There’s no separation of powers problem here: Everyone’s doing their constitutional job; and (5) The Attorney General’s “novel” argument that certain rights are “inalienable” and therefore immune from the vagaries of majority rule, has no traction.

It sounds like a reasonable judgment to me. The job of supporters of equality is now to make the case for real substantive equality – in name as well as form. And to take that argument to the people of California.

The most important questions every negotiator must ask herself in maximizing the opportunity to make a deal that satisfies all parties’ interests simultaneously are:  why do you want what you want and how do you think we might satisfy your desires and mine at the same time.

Of course some demands are non-negotiable.  “Separate but equal” was not an acceptable option for African Americans in the South at the mid-point of the twentieth century and substantive marital rights without the word “marriage” is not an acceptable option for the gay community at the beginning of the 21st.  On the other hand, supporters of Prop 8 waged a misleading campaign suggesting that in the absence of Prop 8 the State would interfere with religious activities by requiring churches to sanctify marriages their religion does not permit.  The LDS and other churches’ freedom to exercise their own religious practices free from interference by the state and gays’ rights to civil marital rights (the only type of rights a secular society is permitted to grant) can be simultaneously satisfied.  And yet we raise money to fight on.

To reiterate:  yesterday’s California Supreme Court opinion upheld Proposition 8 only to the extent that it bars the use of the term “marriage.”  Because the Court held that Proposition 8 could not bar our gay and Lesbian citizens from any substantive marital right given to our heterosexual citizens, there is a not-yet-celebrated victory on one side and a not-yet-experienced defeat on the other.

And so, the messy business of democracy in a country guaranteeing liberty moves one step forward and one step back in a dance that wouldn’t be nearly so rich in the absence of gay contributions to American culture.

See also this analysis from The Complex Litigator Blog (“everyone will be unhappy with the opinion”).

The Existing Differences in California’s Domestic Partnership Laws and Marital Rights Which Differences Should Now Be Considered Unconstitutional (I do not vouch for the accuracy of this analysis; I am not an expert in family law):

While domestic partners receive most of the benefits of marriage, several differences remain. These differences include, in part:

  • Couples seeking domestic partnership must already share a residence, married couples may be married without living together.
  • Couples seeking domestic partnership must be 18 or older, minors can be married before the age of 18 with the consent of their parents.
  • California permits married couples the option of confidential marriage, there is no equivalent institution for domestic partnerships. In confidential marriages, no witnesses are required and the marriage license is not a matter of public record.
  • Married partners of state employees are eligible for the CalPERS long-term care insurance plan, domestic partners are not.
  • There is, at least according to one appellate ruling, no equivalent of the Putative Spouse Doctrine for domestic partnerships. [3]

In addition to these differences specific to state law, should the Defense of Marriage Act be found unconstitutional or repealed, married persons in California might enjoy all the federal benefits of marriage, including Constitutionally-required recognition of their relationships as marriages in the rest of the United States under the Full Faith and Credit Clause.

See also the Constitutional Law Prof blog comment on the Prop 8 opinion, particularly notingthe dissent of Justice Carlos Moreno

“based on his interpretation of California’s equal protection clause, which is not only distinct from the Fourteenth Amendment, but also

by its nature, inherently countermajoritarian.  As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.  Rather, the enforcement of the equal protection clause is especially dependent on “the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority.”  (Bixby v. Pierno (1971) 4 Cal.3d 130, 141.)

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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