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Wednesday, May 27, 2009

California cowardice: The morning after

The vow by proponents of gay marriage in California to put the measure on the ballot again next year and try to overturn Proposition 8 is laudable, but it underscores the absurdity of the position that the California Supreme Court decision has put all of us in.

Barring a pro gay marriage decision one day by the U.S. Supreme Court, which won't happen unless Obama gets two or three more nominations (Clarence Thomas and Antonin Scalia look unhealthily overweight to me, does anyone believe in the power of prayer?), gay marriage can only become legal via a new proposition or a state law. Does this mean that the rights of gays to marry will come and go with the political tides, as the fortunes of the political right and the political left rise and fall (like the way that international family planning organizations do or don't get U.S. funding depending on who issues executive orders?)

That's the logic of the atrocious opinion written by California Chief Justice Ronald George, who wrote that Proposition 8 carved out merely a "narrow and limited" abridgement of the equal protection promised by the California Constitution and by the Court's own previous decision on the matter, also written by George. The number of Jews in California is most likely fewer than the number of gays, so if a new Proposition passed that prohibited Jews and Gentiles from marrying, would that also be a "narrow and limited" exception? The number of African-Americans is also fairly small, less than 7%, so how about an anti-miscegenation proposition, would that pass constitutional muster too in California?

So gay rights activists, to get their rights, will be forced to accept that it is legal for them to be taken away by the political process. Given that sad situation, perhaps the best way to go is a proposition simply guaranteeing that in the state of California any human being has the right to marry any other human being (one at a time, however, please) and leaving it at that. A measure like that would be harder to argue against politically, and harder to overturn--even by a Court that thinks rights can be passed out or withheld like after dinner mints.

Photo of Ronald George: Paul Sakuma/AP

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