The Los Angeles Times catches up with a something I’ve been noting, like, oh, forever: That if California’s Proposition 8 passes, the thousands of already-married same sex couples will find their marriages thrown into legal limbo, because Prop 8 outlaws California’s recognition of same-sex marriages, and doesn’t make provision for already-existing marriages. Here’s one little tidbit:
New York University law professor Kenji Yoshino, who favors same-sex marriage, concluded that the U.S. Constitution would offer few protections to existing gay marriages if Proposition 8 passed.
“My hope going into this was that I would find a smoking gun case that would say those marriages would be protected,” Yoshino said. “I kept looking and looking and looking, and when I couldn’t find one, I was astonished.”
He said the U.S. Supreme Court has repeatedly rejected due-process challenges to retroactive legislation. The Contracts Clause, which prevents states from passing laws that impair contracts, would also offer little protection because the court has ruled that “marriage is not a contract” protected by the clause, he said.
There are others, including Attorney General Jerry Brown, who suggest that the already-married same sex couples will be able to keep their marriage status, but with all due respect to Jerry Brown, he and these other people are high. The people who whomped up Prop 8 simply won’t allow that to happen, because their position is predicated on the notion that any same-sex marriage is a threat. If literally thousands of same-sex married couples continue to exist in California, then the state is still must recognize and protect same-sex marriage, even if no more are allowed to be created in the state. Which is, of course, explicitly against the newly-amended constitution of the state of California. Lawsuits to drive that point home would be imminent.
But more to the point, the continued existence of same-sex marriages would give absolute lie to the thinking behind Prop 8: That same-sex marriages in any way constitute a clear and present danger to the nature of marriage in general. Both the letter and spirit of Proposition 8 require the eradication of all same-sex marriages in California. To do any less destroys the whole point of Proposition 8. The people who thought up Proposition 8 will fight to wipe out every single marriage that doesn’t conform to their standard. Count on it.
This is why every single potential supporter of Proposition 8 should be looked square in the eye and asked if they are truly and seriously ready to say that that they personally are prepared to destroy already existing, already legal marriages — if they are truly and seriously ready to say that they know better than the people in a marriage whether that marriage should be allowed to exist — if they are truly and seriously ready to say to two married people, “you two don’t deserve to be married, and I intend to kill your marriage now.”
These people should not be allowed to squirm out of their moral quandary by suggesting that there will still be civil unions in California, or that the relationship two people have will continue to exist whether the marriage is invalidated or not — the fact they’re going to vote against these people’s marriages points out that they recognize there is something different and valuable about being married, as opposed to not. They shouldn’t be allowed to squirm out by making some argument that the government shouldn’t be in the marriage business anyway, because here in the real world, it is, and the theoretical must give way to the practical. Rights in the real world are on the line.
They need to recognize what it is that they’re doing, not to some potential marriage, but to a single, actual marriage that exists, now. I’m going to bold this next part, because I think it’s that important: If the people voting for Proposition 8 couldn’t stand personally in front of a married couple, tell that couple they shouldn’t be married, and say that it is their right and duty to destroy that marriage, they should not vote for Proposition 8. It’s really as simple as that.
Of course, there are people who could and would do such. The best one can feel for them is pity, and the hope that one day they will be ashamed to have done such a monstrous, horrible, hateful and bigoted thing. I suspect some of them will. I would feel further pity for those that won’t.