I made up that word just now. As I type this, I’m on a train from Los Angeles to San Luis Obispo. I’ve read a few things about the Supreme Court arguments over the past couple of days. For those who don’t know, they’ve been hearing arguments involving Proposition 8, the ballot measure that outlawed gay marriage in California mere months after the California courts ruled that the law that existed pre-Proposition 8 that outlawed gay marriage was unconstitutional.
What does that mean? For a few months gay marriage was legal in California. Until voters outlawed it again. Since then, the long and winding road that is our justice system has rolled along.
There are a number of issues that could decide the case that is before the Supreme Court this week. People who read this blog regularly know where I stand on the issue. For semi-regular visitors, look to the right, just below my picture. My position should be clear.
I am not gay. Never have been. Never will be. But, in the famous words of a Seinfeld episode. “Not that there’s anything wrong with it.”
In the run-up to the vote on Proposition 8, I saw friends for whom this issue was so emotional. I realized what had been my somewhat laissez faire approach to it was misplaced and I became equally passionate about what seems so fundamental now. I wrote last week attacking some people who evolve on issues and only come to the “right” position if they know somebody who is impacted on the matter. A friend and commenter, Kathy, pointed out that sometimes that evolution makes sense. Her comment forced me to recognize that I have done that on this issue. Just as Barack Obama did. There are some issues that break the mold for which change and progress and evolution may be necessary.
I’ve evolved on this. I believe deeply and passionately that two adults who love each other and want to make the commitment to each other that marriage involves should be afforded the right to do so. I believe that government needs to get out of this. That for purposes of the law, and the benefits the law provides, the only term that need apply is civil unions, whether heterosexual or homosexual. Whether something constitutes a “marriage” is to be determined by the two individuals and their faith, their beliefs.
That said, here’s where legalia comes into play. In law, a foundational issue for any matter brought before the courts is standing. A plaintiff must have standing to bring their complaint. To put it in the simplest terms, they must be able to show an actual harm to them personally to be able to file the lawsuit. In other words, if John violates his contract with Susan, I can’t sue to protect John’s interests. John has to do so.
In the case of enforcing laws, the typical plaintiff is the government itself. Proposition 8 involved an amendment to California’s Constitution. If a court struck it down, it’s the responsibility of the State to continue the appeals process to attempt to enforce a law the voters enacted. That’s how it’s supposed to work.
Problem is, from the perspective of the Proposition 8 supporters, is that in 2010, Jerry Brown was elected Governor and Kamala Harris was elected Attorney General. Both Democrats, both supporters of gay marriage. When it came time to pursue an appeal of a lower court’s ruling on this, Brown and Harris refused to do so because of their position and their belief that Proposition 8 was unconstitutional.
In stepped the individuals who had written Proposition 8 and supported its passage. But, where’s there harm? Where’s their interest that justifies their participation in the litigation? In other words, what is their standing to sue?
This is a core issue the Supreme Court must decide — do the Proposition 8 proponents have standing to enforce a constitutional provision where state officials refuse to do so?
Here’s my fear, as a means of avoiding the substantive issues in this case, as a means of avoiding a ruling that will inflame one half of the nation, as a means of finding a majority of five on this difficult issue, the Court will punt and rule that the plaintiffs don’t have standing.
I hope they don’t. Not because of what it will mean in this case — such a ruling would end up legalizing gay marriage in California, although not in the rest of the country — but what it would mean for our democracy. If government officials refuse to take every step necessary to enforce laws, particularly those passed by the voters in a valid election, somebody must have the right to step in and do so in their place.
Yes, I don’t want gay marriage to be outlaws. I abhor the position the Proposition 8 proponents are pushing, but I value the idea of democracy, of voters and elections. I hope, rather than taking the easy way out via the standing issue, that the Supreme Court addresses this case on its merits, rendering a decision that may put this issue to rest. At least somewhat.