I agree with most of what I have read about today’s hearing on Prop 8 before the state Supreme Court: The conventional wisdom is that the justices will uphold the ban on same-sex marriages while also upholding the marriages that have already been performed. I could be wrong, because I am certainly no expert on reading the tea leaves when it comes to the sensibilities of the justices, but the Kennard questions seemed to be pretty pointed.
If that happens, there will be natural disappointment in the gay community and elsewhere, but a number of marriage equality orgs seemed to be bracing for this possibility and planning ahead to the next chapter of the fight. I would still be married, but I fear that by the mere nature of the circumstances it will not be the same as if same-sex marriages continue to be legal. In other words, we will be the asterisk that slipped in under the wire when the going was good.
What is still bizarre to me is the logic of Kenneth Starr, above, particularly when it came to his argument for invalidating the marriages that already exist. Couldn’t a whole host of other rights also be at stake, merely by the will of the voters? A proposition could go before voters invalidating mixed-race marriages, or integrated schools, or non-discrimination housing laws. If the court upholds Prop 8 and also the marriages, it will be interesting to see how the justices reason this through. In other words, a right can be stripped away if you are still single but not if you are married.
What I do hope is that if the court upholds Prop 8, it will at least signal an end to the tired argument of “activist judges,” something that Sandra Day O’Connor talked about on “The Daily Show with Jon Stewart” the other night. Frustrated by those who disagree with a court’s decision dismissing the rulings as the work of “activist judges,” she’s launched a website to inform the public about the three branches of government. Although it is geared toward students, plenty of grown ups could benefit from a peek.