Wednesday, May 27, 2009

Prop 8, diminished

The California Supreme Court has upheld Prop 8, but reduced it to as petty a measure as possible. Under yesterday’s ruling, gay couples still have the constitutional right in California to form a state-recognized family with all of the privileges and protections afforded to married couples. The government just can’t call it marriage unless the marriage took place before Prop 8 passed. The state will have to maintain full parity between domestic partnerships and marriages. Further,

any measure that treats individuals or couples differently on the basis of their sexual orientation continues to be constitutionally “suspect” under the state equal protection clause and may be upheld only if the measure satisfies the very stringent strict-scrutiny standard of review that also applies to measures that discriminate on the basis of race, gender, or religion.
This is far more protection than most states provide, and this almost entirely Republican court is now united in upholding those protections. The court goes to great lengths to make it clear that Prop 8 is just plain mean, and denies the Prop 8 proponents almost all of what they hoped to accomplish.

The court does leave the door wide open to embedding further rank discrimination into the state constitution, as long as the discrimination is done one small and hurtful ballot measure at a time. Hopefully the court will treat all future discriminatory constitutional amendments with at least as much hostility as they treated this one.

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