By Joe Perez
Although the MyOutSpirit.com Gay Spirituality blog isn't about political strategy per se, I can't resist wanting to suggest a potential direction for California's gay rights movement. Winning marriage equality is, after all, an important aspect of creating the social conditions necessary for the holistic well-being of gays and lesbians--and as my readers know, I see politics and spirituality as deeply intertwined--so it's not entirely off-topic.
I'm still digesting the California Supreme ruling, and make no claims to be a legal scholar. However, I can't help but notice that there's a passage in today's decision that practically spells out a potential strategy that gay rights activists can use, one that does not require re-fighting the Proposition 8 battle all over again in a political climate that hasn't significantly changed since last November.
Of all the claims made by the petitioners in today's ruling, probably the strongest was the California Attorney General's contention that "the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates 'inalienable.'" (p. 11). (The petitioners' technical claim that Proposition 8 was a revision but not an Amendment seems to have little support in the state's legal framework.) But the majority's opinion today rebuts the Attorney General's claim by saying: "Although the amending provisions of a constitution can expressly place some subjects or portions of the constitution off-limits to the amending process — as already noted, some state constitutions contain just such explicit limits — the California Constitution contains no such restraints." (also p. 11)
These statements lead me to wonder if a worthwhile strategy for California's same-sex marriage advocates may be to pass an Amendment (requiring only a simple majority vote) stating simply something like this:
No Amendment to the California Constitution is valid if it attempts to alter the inalienable rights of any of its citizens.
An Amendment with this sort of wording would be simple, clean, and capable of winning broad support. While there is no long-term substitute for building broad-based acceptance for the validity of gay marriage in our culture--the task that ultimately must be done to secure marriage equality in California and every state--this strategy does have a way of focusing the public debate strictly on the question of whether marriage is an inalienable right while sidestepping all the messy issues about homosexuality specifically. An Amendment that would simply prohibit Californians from writing discrimination towards anyone for any reason into their Constitution (if such discrimination infringed on "inalienable" rights) would also have the benefit of advancing civil rights not just for gay couples but for every minority group that might one day find itself victim to California voters' majoritarian tendency to squash the rights of groups that aren't popular.
While there is no guarantee that even if such an Amendment passes the Supreme Court would definitely invalidate Proposition 8, in my opinion it's worth considering. Indeed, it's possible to read the aforementioned passage in today's ruling as basically begging California voters to fix a screwed up Constitutional Amendment process.
What do you think?
BTW, I think this is a nice, clean idea - at the same time, though, the process of doing such a thing is prohibitively expensive. Not sure anyone could raise enough money to put behind it...
Posted by: Clayton | July 09, 2009 at 03:59 PM