Tuesday, November 18, 2008

Andrew Sullivan: Backwards on 8

Andrew Sullivan has the Prop 8 legal issue completely backwards (once again).

He argues that it should stand, but existing gay marriages should be preserved.

But it's exactly the opposite.

First, it should be overturned, because the argument that it is a revision of California’s Equal Protection clause – and therefore needs to go through a different procedure - is very compelling. My reasoning is here.

However, if it is upheld, then I don’t see the legal argument that it isn't retroactive. What’s the distinction between those who did marry or those who marry later? What about those who married out of state before Prop 8? The amendment is equally clear that it applies to all marriages. If they uphold the amendment as legal, I don’t see any legal ground to maintain the existing marriages. Just saying “it feels like a nasty attack," as Sullivan does, isn't any legal basis. Yes, it's an attack, but it’s an attack on everyone, whether they had the marriage or not. Who is Andrew or anyone to say now what’s excessive, when the voters have spoken?

So I really don’t understand where Andrew is coming from. He argues that the issue of overturning Prop 8 shouldn't be left to the courts. But then he argues that the courts should retain the existing marriages based totally on no legal reasoning other than it’s “excessive.” Well, if this should be left up to the voters, then the amendment is clear. It is clearly meant to divorce the married couples. In fact, it was even reworded to make sure this was clear.

But even more importantly, if the amendment is left to stand, then to water it down because of “sympathy” is to really illegally tamper with the intention of the voters in order to remove the one argument we have going for us: that the amendment is excessive, which is what would give us a better chance to overturn it in a subsequent vote.

Either Prop 8 stands, or it doesn't. That’s the only reasoning that makes legal sense to me, as well as sense for achieving marriage rights in California.

UPDATE: Andrew posts dissents from other readers, who understand what's at stake better than he does.

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