If the courts find that the ballot measure was motivated by discrimination, they could strike it down without having to decide whether gays and lesbians have a constitutional right to marry."
Another problem with this approach: I need to know the answer to the question the court wants to sidestep. Do I or do I not have a constitutional right to marry in CA?
There are two ways this qustion can be answered: through the court or through the legislative process. I *want* the court to decide, or I want the legislature to decide. That's what you ask a court or legislature to *do,* after all. If one can't do it the other one should.
If the court wants to "strike [Prop 8] down without having to decide whether gays and lesbians have a constitutional right to marry," they're giving a clear signal to me that they're not going to actually answer the question themselves. But, they're also giving a clear signal that they want to make the legislative way to answer that question even more torturous that it already was. That is a problem.
This is all done in the name of eradicating homophobic laws, which is something I support, and is something that falls under the courts' purview, so it makes it tricky. The best way to pass down unhomophobic laws is to actualy make unhomophobic laws. The court already tried to do that and was hamstrung by the legislative process (passage of the Prop 8 ballot measure); now they are trying to step in to hamstring the legislative process--but they won't want to issue another clear ruling themselves.
Where does that leave us, who want the answer to the question?
I don't think that this cycle of accusations of homophobic bigotry on one side and activist judiciaries and identity politics on the other side is going to change until the law starts changing what it is protecting, from "this protected class of people but not their actions" to "the cultural and socially informed actions that people take in their daily lives." Please read "Covering" by Kenji Yoshino for some important arguments on how the law could better change to actually encompass more diverse behavior and less bigotry for all without being accused of an infinitely hair-splitting group favoritisim or charges of bias.
The more I consider the implications and possible precedent this could set, however, the more worried I become. On the one hand, Prop 8 was motivated by bigotry, everybody involved damn well knows that, and the federal goverment at least has made it very clear how it feels about bigotry-motivated (or interpreted) laws.
That is not really true, not even a little bit. If the federal gov't was clear how it felt about bigotry-interpreted or motivated laws, we wouldn't have DOMA or DADT (don't ask don't tell). It hasn't even been very clear on the question of what constitutes bigotry against defined "protected classes," such as people of various religions or ethnicities. Queer people aren't one of those defined protected classes (because queerness asserts itself through behavior and action rather than being something intrinsic like skin color), so the law is even murkier. Again I refer you to Yoshino.
On the other hand... this was a citizen group, and the very last thing we want is for citizens to be held accountable for their thoughts and motivations. Major free speech red flag, there.
I think maybe you misspoke, here--did you mean "accountablity?" Or were you trying to differentiate between personal accountability and the state calling people to account? Because I think a certain amount of accountability is necessary. While the ideal is for each person to take full accountability for their own thoughts and actions, I certainly would like outside actors to hold some people accountable for their actions if the citizen themselves cannot do it (in cases of crimes, for example, though thinking people may differ on how that citizen ought to be held accountable). Accountability for their own actions and thoughts is among the first things I'd like individuals to have; it's among the last things I'd like the government to hold me accountable for.
![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
Read Covering by Kenji Yoshino
Date: 2009-10-06 02:06 pm (UTC)Another problem with this approach:
I need to know the answer to the question the court wants to sidestep. Do I or do I not have a constitutional right to marry in CA?
There are two ways this qustion can be answered: through the court or through the legislative process. I *want* the court to decide, or I want the legislature to decide. That's what you ask a court or legislature to *do,* after all. If one can't do it the other one should.
If the court wants to "strike [Prop 8] down without having to decide whether gays and lesbians have a constitutional right to marry," they're giving a clear signal to me that they're not going to actually answer the question themselves. But, they're also giving a clear signal that they want to make the legislative way to answer that question even more torturous that it already was. That is a problem.
This is all done in the name of eradicating homophobic laws, which is something I support, and is something that falls under the courts' purview, so it makes it tricky. The best way to pass down unhomophobic laws is to actualy make unhomophobic laws. The court already tried to do that and was hamstrung by the legislative process (passage of the Prop 8 ballot measure); now they are trying to step in to hamstring the legislative process--but they won't want to issue another clear ruling themselves.
Where does that leave us, who want the answer to the question?
I don't think that this cycle of accusations of homophobic bigotry on one side and activist judiciaries and identity politics on the other side is going to change until the law starts changing what it is protecting, from "this protected class of people but not their actions" to "the cultural and socially informed actions that people take in their daily lives." Please read "Covering" by Kenji Yoshino for some important arguments on how the law could better change to actually encompass more diverse behavior and less bigotry for all without being accused of an infinitely hair-splitting group favoritisim or charges of bias.
The more I consider the implications and possible precedent this could set, however, the more worried I become. On the one hand, Prop 8 was motivated by bigotry, everybody involved damn well knows that, and the federal goverment at least has made it very clear how it feels about bigotry-motivated (or interpreted) laws.
That is not really true, not even a little bit. If the federal gov't was clear how it felt about bigotry-interpreted or motivated laws, we wouldn't have DOMA or DADT (don't ask don't tell). It hasn't even been very clear on the question of what constitutes bigotry against defined "protected classes," such as people of various religions or ethnicities. Queer people aren't one of those defined protected classes (because queerness asserts itself through behavior and action rather than being something intrinsic like skin color), so the law is even murkier. Again I refer you to Yoshino.
On the other hand... this was a citizen group, and the very last thing we want is for citizens to be held accountable for their thoughts and motivations. Major free speech red flag, there.
I think maybe you misspoke, here--did you mean "accountablity?" Or were you trying to differentiate between personal accountability and the state calling people to account? Because I think a certain amount of accountability is necessary. While the ideal is for each person to take full accountability for their own thoughts and actions, I certainly would like outside actors to hold some people accountable for their actions if the citizen themselves cannot do it (in cases of crimes, for example, though thinking people may differ on how that citizen ought to be held accountable). Accountability for their own actions and thoughts is among the first things I'd like individuals to have; it's among the last things I'd like the government to hold me accountable for.