Is this politics, or is this civil rights?

[figmo]

In California one of the things we'll be voting on is Proposition 8. If passed, it would add the following wording to the California State Constitution:

"Only marriage between a man and a woman is valid or recognized in California."

An identical proposition passed in 2000 but was ruled "unconstitutional" by the CA State Supreme Court because it discriminates against a segment of the population.

If it passes again, the court is likely to make the same ruling, just as the US Supreme Court has repeatedly ruled anti-flag-burning legislation as "unconstitutional."

I don't know what percentage of the California population is gay, but nonetheless, such a law would only legalize active discrimination, just as the "separate but equal" laws did years ago. What I don't understand is why the supporters of this proposition are so adamant to try to legislate discrimination which, if passed, will be overturned yet again.

Comments

[osewalrus.livejournal.com]

See comment above for a more detailed analysis.

I am not persuaded that this gets excluded on equal protection. First, you'd have to establish that homosexuals are a protected class. The Court as never gone that far. Next, you would have to settle on the level of scrutiny. While race discrimination gets heightened scrutiny, gender discrimination gets something like intermediate scrutiny kinda sorta. Then you would have to determine that the proferred justification of the state does not survive under the relevant scrutiny standard.

None of these steps is a sure thing, particularly with the current configuration of the Court. This is why federal litigation has generally been considered too dangerous. It is why the Boy Scouts can ban participation by openly gay scouts as a First Amendment issue, but cannot exclude black scouts (BSA v. Dale). It is why a parade can exclude openly gay participants as a First Amendment issue, where they could not exclude based on color or gender (Hurley v. Irish-American Gay & Lesbian & Bisexual Group of Boston).

This is why working the legislative process is so much better than trying to do this via the judiciary. Win in the legislature and you have a real, honest to God win that shows a social consensus for equal rights.

[merlinpole.livejournal.com]

What the law says and what gets enforced, are often wildly different--just look at the circus of the Department of Justice the past eight years, the circus and spitefulness involved in even attempting to investigate anything from the chain of command in the outing of Valier Plame/Valerie Wilson, to the firings of federal prosecutors, to the issue of "torture".... the past eight years the misadministration of the country has been the worst ever, but with a majority in Congress either being synchophants or muzzled by intimidation or a misplaced sense of fair play/attempt at collaboration (Pelosi failing to comprehend the meaning of "collaborateur"....)or toadies to some degree or other wanting to favor crumbs of favor, Congress' interest in action/actions regarding changing the situation, have been minimal/ineffectual/hands-off.

Waxman and Kuicinich are among the few people in Congress I consider deserve respect in the situation, but they are a tiny minority. They have worked to change, and been squelched in almost every endeavor they've undertaken regarding investigation and prosecution....