Thursday, May 15, 2008

Same sex marriage in California

Very significant news from California that that the Supreme Court has declared that same sex marriage is required by the Californian State Constitution by a 4-3 ruling.

Of particular interest is the application by the majority of Justices of the principle of 'strict scrutiny', not usually used in cases of sexual orientation.

So this is a massive landmark case, following the adoption by the Legislature (Senate and House) of a marriage bill (though not passed into the law by Schwarzenegger, the Governor - who has though said he will abide by the ruling and not support a proposed constitutional amendment with the intention of reversing this ruling.

The ruling makes California the second US State (alongside Masachussets) which will have same sex marriage along side countries such as Canada, South Africa, Belgium, Netherlands and Spain.

I gather the ruling will come into effect in 30 days time. It will however be subject to review by the electorate in November when a constitutional amendment is voted on.

When the Campaign starts it will of course not be the first jurisdiction to have done this (whether by legislative or judicial means or a combination of both) . It will be supported by the view of the elected legislature (Schwarzenegger has said he would sign into law if allowed to under the Constitution), the support of the Republican Governor.

If the vote is successful it will have had the support of elected Legislature, Judiciary and General Electorate in a referendum and will therefore be of the highest kind of support and legitimacy possible, rendering it more difficult for the US to enact a Constitutional Amendment whose rationale is to protect voters from so called 'activist judges'.

Of course the vote could go the other way. That is always an option and one would have very big consequences in other US States, though again rendering rather otiose the proposed US Constitutional Amendment, given the ability of voters in the States to amend State constitutions by referendum.

Equality California

Pink News
Washington Post
Andrew Sullivan
New York Times
Human Rights Campaign

The ruling (172 pages including dissents)

Having been voted by the Legislature, having been found in favour by the Supreme Court, following Massachusetts and Canada it lies entirely in the hands of the voters in California this November.

I do not personally think that this will have quite so much of a negative impact on other States that some fear. Most of the most 'promising' (from a right wing point of view) have already enacted such bans, the more States they go after as same sex marriage becomes more widely practised in the US and its neighbour Canada the greater the chance that it will fail in the popular vote in one or more States. And where such a ban is passed it can only be passed once, limiting its political pay off.

P.S. The Campaign

Now California (and US) lgbt folk are in THE campaign of their lives. If the initiative is defeated 10% of the US will be able to marry equitably and many of those in other states may be able to marry there - with differing levels of recognition.

The ones to watch will be:

  • fundraising - the religious right will pour all of their resources into this fight - they are right to as if they fail here they fail utterly and have nowhere else to go. If you're rich and LGBT and live in America donate and make a difference. Otherwise the campaign will be massively underspent.
  • the unions - if memory serves most of them have robust pro equality positions - they can make a real difference. See also link to Pride at Work.
  • faith groups - really important to mobilise supportive faith voices in order to win the fight
  • the Democratic Party - California usually votes Dem in any case (and if they don't the election's lost anyway) so using the Democratic Party to mobilise a 'No' vote will be crucial. See link to California Democratic Party Platform and also the immediate and supportive reaction of Nancy Pelosi, Democratic Speaker of the House of Representatives from San Fansisco.


No comments:

Post a Comment