Some of the organized groups supporting the ban on "same-sex marriage" have filed legal briefs asking the California Supreme Court to annul the 18,000 "same-sex marriages" that were performed during the brief interval of time wherein they were legal.
Serious thought about this issue makes me glad I am not a judge. Nevertheless, I feel it correct to apply the same dispassionate analysis to the question that I have to all Prop 8 issues in this blog.
Ban supporters argue that Article 1 Section 7.5 is as clear as it is brief: "Only marriage between a man and a woman is valid or recognized in California." This sentence is currently Constitutional law. It's direct and straightforward application directly supports the argument for annulment of the 18,000 same-sex unions.
On the other side...those 36,000 people entered into those unions at a time when it was perfectly legal to do so. Their actions broke no laws when they were taken. I am not a lawyer, but I have friends who are, and they tell me it is quite rare in jurisprudence for a law to be made retroactive.
There may be legal reasons, stratagems, or tactics that compel this request by ban supporters. I can find no statement to that effect, which may be understandable given the current order of battle. Absent that explanation, the request feels vindictive and punitive to me.
Generally, our culture expects victors to act magnanimously, and that is my natural inclination. So why do I feel so conflicted over this issue?
Maybe it's because the battle isn't over yet.
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2 comments:
Your post recalls events of more than 100 years ago, when polygamous marriages were banned in Utah. I haven't looked it up, but here's my question: Were the legal marriages performed before the 1890 (or was it '95) law outlawing the practice nullified by the ban? Though Utah wasn't a state at the time, I see similarities to today's predicament.
In today's situation, I would opine that the marriages performed while the practice was legal should be honored. Do I believe in gay marriage? Nope. But, I also believe in honoring and upholding the law. Those pro-Art.1, Sec. 7.5-ers (did you follow that?) should not stoop to mob mentality of the anti-Art.1, Sec. 7.5-ers have.
I'm going out on a limb here...
It seems to me that "today" everything "legal" has to have no regard to whether or whether not things are moral. A politically correct action/law has to have some neutral non-moral worth to be enacted. If morality was involved, I would argue that the gay marriages should not be upheld.
But, if things are to be done without morals...then I suspect that means most laws are nothing more than logistics, and this issue of "marriage" can be reduced to nothing more special or unique than a business negotiation/law.
Unless I'm mistaken, businesses are often given standards and laws to abide by. If the expectations of "smog", "waste", "hazards", are changed, then the business is expected to comply, or bust. I imagine since law has no "special moral value" to it, that in this case of "gay marriage", the standard/law has changed.
My only question is, then, how do you justify a "grandfather clause?" to a constitution...but I guess that's the whole issue anyway.
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