Proposition 8 Overturned in California

08:43 Thu 05 Aug 2010
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Judge Vaughn Walker ruled that the ban on same-sex marriage was unconstitutional yesterday in San Francisco. The decision has been stayed pending appeal, so no same-sex marriages can go ahead for the moment, but it’s still a step forward.

Critical to Walker’s decision was his rejection of claims that the measure was intended to “protect tradition” or “benefit children” (a pernicious and outrageous claim, much worse than any appeal to custom or religion, as it posits that social recognition of love between two people of the same sex is somehow an awful thing that only adults can possibly cope with). Walker stated that he couldn’t see a rational basis for the discrimination, and that the most likely reason for the passage of the measure was “a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples”.

I’m pleasantly surprised by that conclusion. I agree with it, although I think the delusions of moral superiority extend more widely. The supporters of Proposition 8 weren’t necessarily all married, or intending to get married, but derive their sense of moral superiority from a general willingness to judge the private sexual conduct of others. Proposition 8 backer Andy Pugno said Walker “has literally accused the majority of California voters of having ill and discriminatory intent”—true, and moreover Walker was correct in having said that. Those voters might not perceive their own intent thusly, but how else can you account for an action that willfully denies a specific group the rights that the rest of society has? What is that if not discrimination?

I don’t hold out that much hope of it standing against appeal. Maybe the Ninth Circuit will uphold the ruling, but unless the Supreme Court changes significantly by the time it takes the case, I think it’ll rule that Proposition 8 can stand. Not being a constitutional lawyer, I’m not clear on what the grounds for such a decision would be, but there’s not much to prevent the majority simply claiming that states can have a legitimate, non-discriminatory, reason for controlling the institution of marriage, and that any such reason that isn’t based in discrimination would be sufficient to allow the democratic majority to have their way.

In the longer run, what needs to happen is for the majority of people to support same-sex marriage. I would like to think that this is inevitable, but I’m wary of making that assumption, especially since I thought Proposition 8 would be rejected by the Californian electorate in 2008. Until a clear majority backs it, its status will remain uncertain, which is a completely unfair burden on those who want to get married but may be prevented from doing so.

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