Important Disclaimer: I AM NOT a practicing attorney. NONE of what you read here is legal advice. If you need legal guidance - get an attorney. If you plan to challenge Prop 8 - get an attorney. If you plan to defend Prop 8 - get an attorney. I still have 2.5 years and a really nasty exam before I am qualified to give legal advice.
*sigh*
The alleged passing of Prop 8 (and I say "alleged" because until the Secretary of State signs the official returns declaring the CA election OVER, it hasn't officially passed.) has raised some interesting legal questions and placed many individuals in legal limbo over whether or not they really are married. As someone who personally knows people stuck in this legal purgatory, I feel badly and want this to be resolved as quickly and directly as possible.
As a law student, however, the legal limbo is fascinating. Not only because I now somewhat get all of the legal discussion that went on over Prop 22 when it passed, but because we are now revisiting that discussion from another perspective because basically the CA district court said to CA - "that isn't our area. We adjudicate laws and determine their constitutionality. We don't define social policy. That isn't our job. That is the job of the legislature and the voters. If you want to have a black-letter definition of marriage, then you need to go to the voters and have them vote on what marriage is."
Voila - enter Prop 8.
But this is the interesting thing - if my timeline is correct, Prop 22 was still in the litigation process when Prop 8 was in the petitioning phase. The constitutional issues were still being decided. The CA supreme court decision in May 2008 happened while Prop 8 was being petitioned and submitted for the November ballot.
So did we Californian's manage to field a Constitutional Amendment that was potentially unconstitutional according to our own State Supreme Court?
Now there's an interesting question. Which brings up another interesting question - if the amendment was submitted even though it was, potentially (according to the CASC's May 2008 ruling regarding the definition of marriage) unconstitutional at that point - who okay'd for it to go on the November '08 ballot in the first place? Isn't there supposed to be some type of "gatekeeper" to keep laws and amendments that conflict with our current constitution from getting on the ballot to begin with? And if the amendment is determined to be ok, should it still be added to the constitution with less than a 2/3rds majority approval? What do we do with that?
And now what do we do for all the couples who are stuck in this legal limbo? Do we continue to issue marriage licenses? Do we file "cease and desist" orders to county clerks so that they do not continue to issue marriage licenses to same-sex couples? Do we file restraining orders against the State regarding enforcement of Prop 8 on behalf of same-sex couples who are seeking marriage licenses until their legal status can be determined? Do we petition for the State to continue to recognize same-sex marriages until this legal limbo is resolved--bearing in mind that Prop 22 passed in 2000, and AB 849 - a legislative bill aimed at removing gender-specific language put in place by Prop 22 - was vetoed by Govenor Schwarzenegger in 2005 and it was only in May 2008 over 8 years later that the final issue of constitutionality was finally resolved with regards to Prop 22--is it really fair for them to have to wait another 8 years for this to work its way through the legal system a second time, and then have to repeat the process of applying for a new license and incur the expenses of having their marriage legally recognized all over again? For some of them it will potentially be a third visit to their county clerk to obtain yet another marriage license - because the first two aren't legally binding.
It's an interesting question. One that provided lots of wonderful fodder for 2L Constitutional Law students to chew over in class - and completely derail the class with. (Sorry about that, Professor Kaufman) But no matter how interesting a question with all sorts of chewy angles to legal theory and precedent it presents, I keep returning to the ugly realization that these are real people, stuck in a real legal tangle, that the only way out of is through the litigation process.
And not just a simple litigation either. This is not a traffic violation, or a failure to appear for jury duty, or one of hundreds of other garden-variety legal issues that are filed, scheduled, litigated, and decided on a daily basis. This is an issue that deals directly with the larger structure of government - the State Constitution, the constitutional amendment process, and how we write and pass laws in this state.
One of our "take away" questions in Con Law class at the end of the evening was the question of bias. Everyone has personal opinions which slant their opinions. For example, my opinion is currently slanted in a direction that favors the legalization of same-sex marriage. Why? A large number of reasons, one of the most important being that restricting someone else's civil rights because of a personal prejudice endangers my civil rights as well. There are others who would disagree with me. That's okay. Discussion is good. Dissent is good - it helps clarify what is important and why. It also helps dispel fear and prejudice if the discussion and dissent occurs without hate speech and mudslinging. And while it might not change someone's opinion about what they believe to be right, it will hopefully have raised the level of discussion to something that is more reasoned and insightful rather than driven by fear and dislike of something that is new, different, and maybe threatening.
But when all the legal paperwork has been filed and the different groups have lined up to take their best shots at the other side and it comes down to Supporters of Prop 8 v California Constitution and all the politics and ideology that characterizes a Supreme Court battle, we should never forget that the constitutional legal process is about real people that deserve to be treated equally under the law, no matter who they are or who they choose to marry.
*sigh*
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