Thursday, March 5, 2009

Proposition 8 and the CA Supreme Court

Arguments to overturn Proposition 8 finished up today. Now, myself, I don't think the justices are going to go for the "revision to the state constitution" argument. An amendment is a revision, and it's allowed. There's no language in the state constitution itself barring amendments from changing existing terms. If that's all that's being argued, Propsition 8 stands.

I'd argue on two different grounds.

First, that while Proposition 8 defines marriage to be between a man and a woman, it doesn't remove the language elsewhere in the constitution that requires the state to treat all citizens equally. As long as that other language stands, Proposition 8 can't simply handwave that requirement away. If two men show up wanting to be married by the state, the state has to treat them the same as it would a man and a woman until a constitutional amendment removing that requirement is passed. And Proposition 8 doesn't remove that requirement.

Second, Proposition 8 is an infringement on freedom of religion and is barred by the US Constitution. No state is allowed to have provisions in it's state constitution that violate the US Constitution, after all. Religions do define marriage, that's what the Religious Right is in an uproar about here. But not all religions define marriage as being only between a man and a woman. By writing that definition into the constitution, Proposition 8 interferes with the right of those religions to marry couples according to their beliefs. You can only do that if you can show an overriding societal need for that interference and that there is no less intrusive way of meeting that need. Proposition 8 doesn't demonstrate that there's any overriding need to bar same-sex marriages, so it fails the test.

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