Rayhawk wrote:That's the problem, it's not. The decision was already laid out in clear language when the Ca. Supreme Court allowed dapper marriage in the first place. The justices noted, in their decision, that there were only two ways to bring California marriage laws into compliance with the equal protection clause. One is to allow dapper marriage, and one is to disallow all marriage. Period. This isn't hypothetical, it's a California Supreme Court decision that's already on the books and still fresh in the minds of everyone interested in this issue. As long as the equal protection clause remains in effect, there are no more options than those two.
I guess that's a big part of what upsets me about Prop 8. It's like it was written by a 12-year-old instead of a lawyer.
I would find it arguable in the sense that the spirit of the proposition clearly dictates that bias based on sex is legal in the case of marriage. What's stupid is that the amendment didn't expressly address that fact to the letter, leaving it wide open to interpretation. It could have flatly quashed same-sex marriage if it had been written appropriately (thankfully it wasn't!). So because it wasn't, there's still an ambiguity (hence arguable) in terms of which law takes precedence-- the spirit of Prop 8, or the letter of the pre-existing state constitution.
I would be ludicrously unimpressed (should I be?) if this issue were not raised quite vocally by the anti-prop-8 organizations. That is, "if you vote yes on 8, that means nobody can get married in California!" I assume that was not a prominent point of the ad campaign, since otherwise I guess I would've expected the proposition to fail (and probably be re-written more clearly and re-submitted later).
As it is, I assume that there have been scads of hetero-marriages in the past week that haven't been denied, although I would be overjoyed to learn that any such licenses were already being fought legally.
I guess realistically, I can't for the life of me believe that nobody being allowed to marry in California would seriously be enforced by the state government-- they'll find cause to argue the point somehow. I figure they'll either:
- Rule that the spirit of prop 8 dictates that sexual discrimination IS legal in the case of marriage
- Rule that the pathetic wording of prop 8 is overruled by the wording in the Constitution, and that same-sex marriages are still legally permitted
Banning marriage altogether just doesn't seem realistic-- it'd be like getting a president who makes up words like "misunderestimated".