Tuesday, May 26, 2009

Unequal Protection Under The Law: California Supreme Court Upholds Proposition 8

Last May, the California Supreme Court ruled that homosexual couples have the same right to marry as heterosexual couples. Back then, they affirmed the principle of equal protection under the law:

The majority opinion, by Chief Justice Ronald M. George, declared that any law that discriminates on the basis of sexual orientation will from this point on be constitutionally suspect in California in the same way as laws that discriminate by race or gender, making the state's high court the first in the nation to adopt such a stringent standard.

One would think that this principle, and the civil right to which it applied, would no more be subject to a vote than the 1967 overturning of miscegenation, the laws that prevented interracial marriage. How is a "right" recognized by the state's Supreme Court allowed to be put to the test at the ballot box? Regardless, equal protection and civil rights were jettisoned by the vote and now by the court in its upholding of Proposition 8, which rescinded the previously recognized right of gays to marry. 

The 18,000 already existing gay marriages will stand, since Proposition 8 was not retroactive. Nevertheless, unequal protection has been confirmed for now. Since the right of gays to marry is subject to a vote, along with attendant privileges regarding taxes, inheritance and health insurance benefits, gay rights groups are organizing for another ballot initiative to reverse the current inequality:

In Los Angeles, Jennifer C. Pizer, marriage project director for the gay rights organization Lambda Legal, said the decision “puts it to us to repair the damage at the ballot box.” One of the state’s largest gay rights groups, Equality California, sent an e-mail message to supporters pleading for contributions to raise $500,000 toward “a massive campaign to put an initiative on the ballot and win.”

Shannon Minter, legal director of the National Center for Lesbian Rights, called the decision “a terrible blow to the thousands of gay and lesbian Californians who woke up this morning hoping and praying their status as equal citizens of this state would be restored.”

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