December 03, 2008

Gay Marriage in California: It’s All Up to the Courts Now

An LA Times article addresses the numerous pressures and challenges confronting the California courts concerning Proposition 8. Maura Dolan reports that the Court is considerably torn. It knows that the political establishment – as well as a likely majority of the Justices – want Prop 8 struck down, but it lacks the legal precedent to overturn it and fears the possibility of a recall election. The Times explains the crux of the legal debate:
“The issue before the court is technical: whether Proposition 8 amounted to a sweeping revision of the state Constitution, which can be put on the ballot only by a two-thirds vote of the Legislature or a constitutional convention, or whether it was a more limited amendment, as its backers contended. Proposition 8 reached the ballot after a petition drive.”
However, if Proposition 8 is overturned by the Court, technical legal arguments will not quell the voices of the millions of Californians who will correctly regard the decision as a classic case of judicial activism. If Prop 8 is overturned and the voters are disenfranchised, it seems we can all set a date on our calendars for a recall election.

On a tangential note, libertarians would argue that if marriage were to be removed from state law and put in the private realm, this controversy would go away (see, e.g., Alan Dershowitz’s 2003 op-ed). Is the Prop 8 brouhaha the first step in convincing the public that marriage should be privatized?.