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Employment and Civil Rights Attorney Discusses United States Supreme Court Case Involving Proposition 8

On Behalf of | Jan 17, 2013 | Blog, Uncategorized |

I’ve used that title about roses before, because it works. I’ve also talked often about marriage equality in this blog. I’m not gay and I’m married. My marriage is very precious to me; it’s very meaningful to be married. It’s not the same thing as a “committed” relationship. I don’t even know what a “civil union” or a “domestic partnership” really is. Do you? If someone told you that they’re on in the same with marriage, does your brain automatically equate it with marriage?

You know it doesn’t, whatever your stake in this issue might or might not be. And you know it doesn’t for any normal person, living in a western society, in this century. The word “marriage” has a special meaning that’s so ingrained in our consciousness that it’s autonomic; when someone says “my husband” or “my wife,” we know, unconsciously as well as consciously, what that means.

No such instant “knowing” happens when we say crazy things like “domestic partner” or “civil union.” It sounds alien,

Know what, though? If that was all it was – a moment where a person’s brain had to do the social math and substitute the meaning of “marriage” for those terms, it’d be more palatable than what’s happening instead. I’ve related stories here in this blog from clients and from other civil rights stories about the sorts of things that happen when people rely on substitute terms for marriage in dealing with others, like merchants and health professionals, who don’t respect the terms, or don’t really understand them, and become uncomfortable with affording the same rights to “domestic partners” and “civil union partners” – for example, when making health decisions for the sick spouse – that they afford husbands and wives because they instantly understand what those terms mean. Many vendors don’t respect or understand the clunky substitute terms either, and when the merchant sells something relating to marriage – like wedding gowns – they can be pretty damned hostile, because they feel safe in denigrating something that is supposed to be equal, but really isn’t.

Let’s face it. The times are changing, and these multi-syllabic monster substitutes for love have to go. People – happily, fewer every day – still seem threatened by marriage equality for reasons I still don’t understand, as if somehow straight marriages are going to be threatened when there are more marriages to stabilize our society. I don’t see how, nor does my wife, or our son, or anyone else rational.

I’ve often remarked here in other blogs as well, with not a little irony, that the people most forcefully opposed to equal marriage rights often seem to hail from states or cultures that seem to be most casual and callous about how they treat marriages. Ain’t it funny that the divorce rates – as well as those for spousal abuse and other ways people dump on marriage – are often highest in the “red” states, where people are most afraid of equality?

But enough of that; we’re talking about the Supreme Court.

Conservative Mormon interests in California agitated and obtained passage of “Proposition 8,” which bans marriage equality in California, after the CA Supreme Court recognized that right. Apparently, those Mormons were among those threatened by what other people do, and just can’t resist meddling. There was a challenge to the Constitutionality of this ban, won in Federal District Court, and now it’s worked its way to the US Supremes, which announced on December 7 of 2012 that it would hear the case (along with the challenge to the Constitutionality of the “Defense of Marriage Act” which was signed into law back in 1996, one of the black marks against the Clinton administration).

So understand what they’re going to be deciding. On its face, the case is about whether or not the State Court’s overturning of the Proposition 8 was proper. The Court can get away with a tongue-in-cheek solution by simply reversing the decision, without much of an opinion. That would simply “reset” the argument in California. It would be “right” in the sense that it would disallow the improper use of a ballot initiative to overturn a Constitutional ruling by a state Supreme Court.

We have them for a reason, folks. If we wanted mob rule and rule by intimidation, we don’t need courts. Of course, that didn’t work out so well for the people who decided to found this country everyone seems to love so much, but few seem to understand. The way we decided to run this show, back in 1789, was to do away with mob rule and replace it with the rule of law. That means Courts are the final word.

So anyway, such a ruling, being “right” as far as it goes, wouldn’t be the worst thing in the world. Why? Look at the most recent election results. State-by-state, more and more states are joining the 21st Century and realizing that marriage is marriage, not a “problem” or a “threat” to anything or anyone. It increases social stability, provides for more children to find homes, increases the tax base, and strengthens communities. As Martha would say, it’s a “good thing.” Given time, it now seems plain that America is growing up, and state by state, the battle will be won. In time. But in that time, people will still suffer the loss of a right that most of you, as straight people, take for granted. And that hurts.

What I fear, however, is that the Court will not only uphold Proposition 8, but find some ridiculously contorted legal argument (they have a tendency to do this because what they do is they like to decide what result they’re going to reach first and then find a distorted and contorted legal pathway to get them there) to justify some sort of pedantic opinions about how equal marriage rights shouldn’t exist in California or anywhere else. The “Conservative bloc” on the Court is activist, biased, intellectually dishonest in some of its opinions, and worst of all, rather smug about it all, because they can’t be touched. Talk about abuse of a trust.

As a Civil Rights Attorney, I’m concerned about this case far more because of the conservative Justices on the Supreme Court then I would be if it was a more fair and balanced panel. So we’ll see what happens, but I have my worries.