Proposition 8 in California and its Opportunity

[Coastocoast]

Many people in the gay community woke up the morning after proposition 8 was passed in California believing that disaster had struck. I am of the firm belief that although this may seem to be the case, in the long run it may be the solution rather than the problem in the gay community with respect to marriage. Before you discount this as a joke about avoiding any marriage saves problems, read on. Read this entire piece and you may begin to see that this one act may have a larger a ramification with respect to the gay community that Barack Obama winning the presidency. I personally believe that any person who would consider marrying someone of the same sex should consider this as an unprecedented opportunity and not a slap in the face. This opportunity, although uncertain, may in the end allow more rights for gay couples than would have been afforded by a defeat of the proposition.
First I will never get married to anyone of either gender so I do not have a large personal stake in the situation but I have friends who are gay and would like to see the mater resolved to allow them to marry. This is a personal take, it is my own work and has been my own take since the amendment was first proposed. I still believe that this one law may have national effects on same sex marriage. I believe it may afford gay Americans the best opportunity to enjoy full marital status that has ever been presented.
Pardon the use of several examples to illustrate what I am saying but devils advocate position is needed to highlight what I am saying. Imagine for a moment that the law that had been passed as a state constitutional amendment had been worded,”All blacks must ride in the back of the bus at all times and must give up any seat to a white who was standing.” This law then becomes written into the California State Constitution. The example is not so outlandish if we look in retrospect at another group of laws that existed in Texas: 1191-1194 and 1196 of the State's Penal Code. These made it a crime to "procure an abortion," as therein defined, or to attempt one, except with respect to "an abortion procured or attempted by medical advice for the purpose of saving the life of the mother." Similar statutes were in existence in a majority of the States. There was a challenge to these laws that became known as Roe vs. Wade.
One of the fundamental points of the United Sates Constitution is that it was designed and written to allow certain freedoms in the United States. These freedoms which we take for granted include many individual rights. These rights also allow the individual States to have a constitution so long as it does not in violate the US Constitution. If Texas chooses to make April 1st of every year a State holiday it may do so; there is nothing there that violates the US Constitution. However suits would be filed and the above constitutional amendment restricting blacks to the back of the bus would be taken to the US Supreme court for scrutiny if the State Supreme Court did not strike it down. This would be ruled unconstitutional as were Texas laws in Roe Vs Wade which the US Supreme court ruled that this violated US constitution for reasons a lawyer could better explain but it had far reaching effects.
Now that the California State Constitution has been amended to prohibit same sex marriage there will certainly be a series of challenges that likely will end up in the US Supreme court. If the United States Supreme Court agrees to hear the case the case has several possible outcomes. If the US Supreme court upholds the law, it is then deferring as it often does the right to decide an issue to the individual states. In this case, the fears day after the amendment passed would real and the battle will continue as it has for many years piecemeal and state by state. However this is the first real opportunity in the United States to open up gay marriage to the entire country. If on the other hand the US Supreme Court were to rule that California Constitution, like the laws in Roe Vs Wade, violated the guarantees in the US constitution, same sex marriage would be the law of the land in the United States and not just California. That is half the story. Right now Massachusetts allows same sex marriage as did California earlier in the year but the federal government including the IRS and Social Security administration has never recognized these marriages. Should the US Supreme court decide to strike down the state amendment as unconstitutional under the US Constitution, same sex couples not only could be married in every state in the land but they would enjoy the same tax and federal benefits enjoyed by heterosexual couples.
Now that you see the situation for what it is, look at this as an opportunity. This is an unprecedented chance to resolve the situation once and for all in fifty states and with the Federal government at one time. This would end the state by state bit by bit fight that has been waged and would force the federal government to accept it as well. Time will tell but this is an unprecedented opportunity and recognizes that it is.

[FalconAngel]

The only thing is that once a law is established, it is as history has shown, that it becomes more and more difficult to repeal. Sometimes taking decades, not just a few years.

Another point that is being missed here is the fact that California seems to lead the nation when it comes to socially important laws. A loss of civil rights in that state could bring a backlash of similar laws across the nation that will be a domino effect that would have long term negative constitutional problems that will be more difficult to repair and undo than it has been to fight the unconstitutional ban in the first place.

It is an interesting theory, but the multitude of implications by having allowed prop 8 (or amendment 2 in FL) could be the stone that brings a catastophic avalanche to this nation and to civil rights.

The passing of those two laws opens the doors to a return of the days when anyone who was not straight was a pariah in the community and subject to prejudicial and negative treatment.

We have been trying to leave those days behind, but these laws prevent that from happening.

[softfruit]

I'm far less pessimistic about it: a law passed as narrowly as Prop 8 was? Ten, twenty years ago could you imagine having got within a couple of percent of winning the vote on that issue?

Here in the UK, twenty years ago the government voted in a bill commonly known as Section 28, which sought to outlaw not just the practice of homosexuality but the very idea of it -- stifling discussion and information -- passed easily with both Labour and Conservative parties giving support. Five years ago it got overturned: in time the dinosaurs die out and we win.

Maybe it'll take another eight years for Prop 8 to be overturned, maybe twelve, but next time around we are starting from having already persuaded nearly half the voters. Just as few people having learnt a little science then go back to believing in a flat earth, fewer people go back from being OK with same-sex relationships to condemning than go from fear to understanding. :flag4:

[Falke]

Give it time guys. Just remember, there was a time when interracial marriages were illegal. It is only a matter of time before gay marriage is allowed.