By: Paul S. Marchand
The California Supreme Court has unanimously held that the proponents of Proposition 8 have standing to defend if the State declines to do so. Initial reactions notwithstanding, we should welcome the opinion.
While disappointing to many, the ruling is based on upon sound application of the principle of stare decisis, which holds that similar cases should be similarly decided. As much as it may irritate many of us in the LGBT community that our civil rights should still be accounted lesser things than those of our straight neighbors, today’s advisory ruling, intended for the education of the federal Ninth Circuit Court of Appeals, may well open the way to a substantive adjudication in favor of marriage equality.
It’s important to keep our eyes on that larger goal. As I’ve blogged before, denial of the right of GLBT people to enter the civil contract of marriage in effect reduces us to the status of slaves. Whether Ruth marries Naomi, Jonathan marries David, or Adam marries Eve, should not matter in a state in which people of every faith and none at all should be able to exercise equal civil rights without having those rights sacrificed to assuage the religious discomforts of this or that sect, denomination, or cult.
Thus, in keeping our eyes on the prize, we should not allow ourselves to be distracted by the temptation to vent anger at what is, to all intents and purposes, a nonsubstantive decision turning on issues of law, not of policy.
The California Supreme Court has unanimously held that the proponents of Proposition 8 have standing to defend if the State declines to do so. Initial reactions notwithstanding, we should welcome the opinion.
While disappointing to many, the ruling is based on upon sound application of the principle of stare decisis, which holds that similar cases should be similarly decided. As much as it may irritate many of us in the LGBT community that our civil rights should still be accounted lesser things than those of our straight neighbors, today’s advisory ruling, intended for the education of the federal Ninth Circuit Court of Appeals, may well open the way to a substantive adjudication in favor of marriage equality.
It’s important to keep our eyes on that larger goal. As I’ve blogged before, denial of the right of GLBT people to enter the civil contract of marriage in effect reduces us to the status of slaves. Whether Ruth marries Naomi, Jonathan marries David, or Adam marries Eve, should not matter in a state in which people of every faith and none at all should be able to exercise equal civil rights without having those rights sacrificed to assuage the religious discomforts of this or that sect, denomination, or cult.
Thus, in keeping our eyes on the prize, we should not allow ourselves to be distracted by the temptation to vent anger at what is, to all intents and purposes, a nonsubstantive decision turning on issues of law, not of policy.
The Court’s opinion particularly Justice Kennard’s concurrence, offer guidance as to the Court’s rationale for its decision:
"When the voters, through the exercise of their constitutionally guaranteed initiative power, have enacted a new statute or have amended the state Constitution, and the validity of that initiative is challenged in a judicial proceeding, who may appear in court to defend the initiative?
"California‘s state trial and appellate courts have routinely permitted initiative proponents to defend an initiative‘s validity, and to appeal from a judgment holding an initiative invalid, particularly when state officials have declined to do so." (Concurrence of Kennard, J., slip opn. at 4-5, See also Majority slip opn., at 28-31. emphases added.)
The Court’s majority opinion also goes on to make it clear in no uncertain terms that “the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8.” Maj. slip opn. at 2. (emphasis added.)
In short, while anti-equality forces may try to spin today’s ruling as a victory, they should perhaps remember the old adage about being careful what one asks for, because one might get it. If the State had been compelled to step in and defend Proposition 8, any of a number of outcomes could have been foreseen. There might have been large-scale resignations from the Attorney General’s office by lawyers choosing to resign on principle rather than defend an odious law. Conversely, the A.G.’s office might have, for the sheer sake of preserving its professional integrity, appointed the best and brightest lawyers it could secure.
As it is, Proposition 8 will now probably defended by the crew of cranks and crazies that defended it in the first place, along with their lawyers. If the poor performance of the proponents’ legal team in the District Court and the Ninth Circuit is any predictor of any subsequent performance before the Court of Appeals, we may dare entertain a certain measure of optimism.
Sometimes, the battle one loses helps position oneself for a future win. I hope -and with justification, I think- that is the case here.
-XXX-
PAUL S. MARCHAND is an attorney who lives and works in Cathedral City, CA. Almost 20 years ago, he litigated one of the first marriage-equality cases in California. The views contained here are his own.
"When the voters, through the exercise of their constitutionally guaranteed initiative power, have enacted a new statute or have amended the state Constitution, and the validity of that initiative is challenged in a judicial proceeding, who may appear in court to defend the initiative?
"California‘s state trial and appellate courts have routinely permitted initiative proponents to defend an initiative‘s validity, and to appeal from a judgment holding an initiative invalid, particularly when state officials have declined to do so." (Concurrence of Kennard, J., slip opn. at 4-5, See also Majority slip opn., at 28-31. emphases added.)
The Court’s majority opinion also goes on to make it clear in no uncertain terms that “the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8.” Maj. slip opn. at 2. (emphasis added.)
In short, while anti-equality forces may try to spin today’s ruling as a victory, they should perhaps remember the old adage about being careful what one asks for, because one might get it. If the State had been compelled to step in and defend Proposition 8, any of a number of outcomes could have been foreseen. There might have been large-scale resignations from the Attorney General’s office by lawyers choosing to resign on principle rather than defend an odious law. Conversely, the A.G.’s office might have, for the sheer sake of preserving its professional integrity, appointed the best and brightest lawyers it could secure.
As it is, Proposition 8 will now probably defended by the crew of cranks and crazies that defended it in the first place, along with their lawyers. If the poor performance of the proponents’ legal team in the District Court and the Ninth Circuit is any predictor of any subsequent performance before the Court of Appeals, we may dare entertain a certain measure of optimism.
Sometimes, the battle one loses helps position oneself for a future win. I hope -and with justification, I think- that is the case here.
-XXX-
PAUL S. MARCHAND is an attorney who lives and works in Cathedral City, CA. Almost 20 years ago, he litigated one of the first marriage-equality cases in California. The views contained here are his own.
