LBeaux

Opening statements began today in Perry v. Schwarzenegger, the constitutional challenge to Proposition 8. I’m torn. The libertarian in me strongly supports same-sex marriage, and if the challenge is successful it means gay people can marry in California. On the other hand, though, I just don’t see how, exactly, Prop 8 violates the US Constitution. And the libertarian in me is also uncomfortable with judges getting too loosey-goosey with the Constitution.

According to the plaintiffs’ brief (which I’ve admittedly only skimmed), Prop 8 is being challenged on Due Process and Equal Protection grounds. My outta-my-legal-specialty (and outta-my-ass) analysis finds both grounds relatively shaky as the law stands now. The best chance plaintiffs have is if they can successfully argue that Prop 8 employs a classification based on sexual orientation that qualifies for strict scrutiny and that gays and lesbians constitute “a group that has been subjected to a history of discrimination and is defined by a ‘characteristic’ that ‘frequently bears no relation to ability to perform or contribute to society.’”

Not sure the law sees it that way. (Though, again, I could certainly be wrong.) Which brings me back to being torn. As I said, I’m not a big fan of courts making new law. As pissed off as I am at the people of California for voting for Prop 8, that’s the way laws get made in that crazy state. But in this case, changing the law through the courts would lead to a good end result–in fact, I suppose it’s possible that this case could ultimately end in a US Supreme Court ruling declaring same-sex marriage bans unconstitutional throughout the entire country, which would be fantastic, if you’re an ends-justifies-the-means sort of person.

My dream scenario, of course, is that we could get same-sex marriage legislation passed in every state. But that’s not happening any time soon. Of course, I really don’t see this judicial challenge being successful either. I imagine at the end of this I’ll find myself in a country that still mostly prevents same-sex marriage and in this one case didn’t create new law judicially. Uh, huzzah?

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