[Marxism] Richard Kim on Prop 8 decision

[David Thorstad <binesi@xxxxxxxxx>]

TheNation.com

May 26, 2009

 

http://www.thenation.com/blogs/notion/438620/california_supreme_court_upholds_prop_8

 

*The Notion blog*


  *California* Supreme Court Upholds Prop 8


    *posted by Richard Kim
    <http://www.thenation.com/directory/bios/richard_kim> on 05/26/2009
    @ 1:36pm*

As expected the California Supreme Court upheld Proposition 8 by a vote 
of 6-1. It also ruled that the 18,000 same-sex couples who got married 
last year are still married. It's a long and technical decision (about 
180 pages) with two concurring opinions and a concurring and dissenting 
opinion--so I haven't fully digested it. But two things to note:

First, under California law, there is no material difference between 
marriage and domestic partnership. Not one of those 18,000 married 
couples got any new rights or benefits that California's DP did not 
already provide; they only acquired the term marriage itself. Of course, 
as a state, California cannot grant any of the federally provided rights 
and benefits of marriage, but as a matter of state law, the two 
categories are substantively equal. Indeed, in part, that's why the 
court held that Prop 8 was an amendment to the CA constitution, and not 
a broader, more fundamental revision, which would have required more 
than just an up or down popular vote. As the majority opinion argues:

Instead the measure carves out a narrow and limited exception to these 
constitutional rights, reserving the official designation of the term 
"marriage" for the union of opposite-sex couples...but leaving 
undisturbed all the other extremely significant substantive aspects of a 
same-sex couple's state constitutional right to establish an officially 
recognized and protected family relationship...

I know people's emotions are very raw now; there are dozens of rallies 
planned around the country tonight. That's all fine and good. But the 
decision on whether or not to sink massive dollars and resources into an 
initiative to reverse Prop 8 in 2010 (remember, Prop 8 was the second 
most expensive election in the country in 2008; only the presidency cost 
more), should take this relative equality into account. There are dozens 
of states where same-sex couples have no partnership rights whatsoever; 
states where it is still legal to fire someone because they are gay; a 
federal Employment Non-Discrimination Act is still stalled in Congress. 
Aren't those better and more inclusive movement goals than an uphill 
initiative that would give same-sex couples the M-word in one state only?

Second, Justice Kathryn Werdegar's concurring opinion contained a 
tantalizing thread of argument. She joined with the majority in 
upholding Prop 8, but also wrote:

...all three branches of the government continue to have the duty...to 
eliminate the remaining important differences between marriage and 
domestic partnership, both in substance and perception. The measure puts 
one solution beyond reach by prohibiting the state from naming future 
same-sex unions as "marriages," but it does not otherwise affect the 
state's obligation to enforce the equal protection clause by protecting 
the "fundamental right...of same-sex couples to have their official 
family relationship accorded the same dignity, respect, and stature as 
that accorded to all other official recognized family relationships." 
For the state to meet its obligations under the equal protection clause 
will now be more difficult, but the obligation remains.

What does Werdegar mean? If same-sex domestic partnerships must be 
equal, in perception and practice, to opposite-sex marriage, and if Prop 
8 denies the term "marriage" to same-sex couples only...then maybe this 
<http://dompar.org/> is the answer?


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