Tuesday, March 4, 2008

Take this man/woman

I started drafting this post a week ago, but got sidetracked...

Much of my day last Monday was spent watching the oral arguments in front of the California Supreme court in In re Marriage Cases. It was an uncomfortable three hours sitting in a plastic chair watching a live feed.

It was nearly impossible to tell from the questioning by the bench where the split will ultimately lie in the seven justices. Justice Chin was certainly telegraphing that he believed that CA's Civil Union law was similar enough to marriage that there was no need to rock the boat. On the other end, Chief Justice George and Justice Moreno were working through an interesting distinction - is this case asking the Court to declare the right for a person to enter into a "same-sex marriage" or was the Court being asked to say that "marriage" in the classic sense, was open to anyone? (The question turned on the US Supreme Court's decision in Lawrence v. Texas where they rejected the previous "right to homosexual sexual relations" and instead based their decision on the more universal right to privacy and free sexual relations for all consenting adults).

Civil Unions, as I mentioned, makes the argument hard for the Petitioners in this case. Chin especially harped on this point. Isn't this the legislature essentially creating gay marriage? Or is this, in the opinion of George and Moreno, a separate but equal situation.

Justice Werdegar asked the simple question, "Is now the right time to do this?" To which I have to wonder if the answer is a simple, "Well you agreed to hear the case didn't you?". Looking back on it, I'm more and more struck by the utter simplicity, and perhaps naivete, of this question. Justice Werdegar must recognize that the Court refusing to acknowledge a right for gays and lesbians to marry will establish in California that marriage is not a basic civil right and will close a major avenue for finally bringing a positive change in the state. I hope that this is not the feeling on the Court as a whole, otherwise they made a tactical blunder in bringing the case up now when there are not seven justices willing to make a final legal determination on the issue.


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