Nothing to see here but more Prop 8 hand-wringing

[muckefuck]

I'm a lot more bummed by the success of Proposition 8 than I expected to me. Even though I knew that the last ballot measure passed easily, that polls showed a clear win, that any time we allow a popular vote on queer rights we get shafted--even with all these things in mind, I still blithely expected it to fail.

Now that the expensive legislative battle is over, another expensive legal battle begins. It pains me to think of all those tens of millions down the drain simply because a scant majority of Californians can't accept that they live in a secular democracy, that civil marriage is not a sacrament and follows different rules. That's what makes this first and foremost a defeat for liberal humanism, and only secondarily for gay rights.

I'm trying to set my lights by cpratt, who's been very upbeat in his comments today despite being one of the thousands of individuals who's just seen his marriage go *poof*. (But, then, I guess it's a little easier the second time around; think you'll get your license fee refunded this time?) We've known for years now that getting same-sex marriage is mostly a waiting game, as resistance drops with every generation. Once today's over-65s are dead and gone, the yeas will have it--but that's awfully cold comfort to anyone who would like some additional legal protections in the meantime.

There are other illiberal measures that stick in my crawl from this election--particularly Missouri's Official English law and Arkansas' hateful and unjustified barring of gay couples from adoption and foster care--but I had already resigned myself to those. For some reason, I keep having higher expectations for California, despite all evidence to the contrary.

Comments

[ceirdwenfc.livejournal.com]

I thought I heard on the news this morning that people who were already married weren't affected by the passage. Is that not true?

[qwrrty.livejournal.com]

It sounds like the legal opinion is that Prop 8 cannot invalidate existing marriages because it would violate the ex post facto clause of the U.S. constitution. See e.g. http://en.wikipedia.org/wiki/California_Proposition_8_(2008)#Proposed_amendment. Nonetheless I expect to see lots of legal snafu around existing same-sex marriages.

[lhn.livejournal.com]

The mention of the ex post facto clause is long gone from the Wikipedia article (which is undergoing a lot of revisions today for some reason or other). A version which may or may not be the one you originally linked to is here, though since the quote is sourced to The Advocate, I don't know how representative it is of constitutional jurisprudence in California's circuit. Generally, the ex post facto clause is applied to criminal rather than civil issues, which makes me a little skeptical, but it's not an issue I've researched.

To put it to a court test would also likely require finding a substantive legal issue in CA where marriage would allow something that civil union wouldn't. Since I believe that civil union in CA gives couples all rights under state law that marriage does (and CA same-sex marriage never gave same-sex couples any marriage rights under federal law), that may be difficult.

[qwrrty.livejournal.com]

Bah. I should have known better. That is in fact the version I was looking at, thanks.