As the tension builds up to Monday’s expected Supreme Court decision on Proposition 8, maybe the biggest anxiety producer of all is this possibility: What if we have to do it all over again?
Many observers thought — though dependence on the line of questioning can be tricky — that the justices were neither inclined to rule that Proposition 8 was perfectly legal, nor that it violated such a large constitutional precept of equal protection that same-sex marriage must be allowed in all states.
There are several possibilities between those two, however. The justices could uphold the finding of the ruling that sent the case to them in the first place: That Proposition 8 is unconstitutionally discriminatory because gay and lesbian couples had the right (for a short time) to wed in California until the initiative took that away. Or they could simply decide that the people defending the initiative — who are not the state officials who were sued — have no legal standing, which would let the lower court ruling that overturned Proposition 8 stand.
The problem is, as has been reported, a couple of these scenarios could lead to new legal battles on their own. If the case is dismissed on the grounds of standing, there will be questions about whether it affects the whole state or just the two counties involved in the lawsuit. In that case, the state must move quickly to declare that because the lawsuit was brought against the governor, it affects the state as a whole. If the marriage ban is upheld, a new proposition would quickly make its way onto the ballot — and that could be done more efficiently if the Legislature voted to place in there.
A new Proposition 8 campaign? There's a daunting and not very cheerful scenario. It’s hard to remember a campaign that tore the state apart emotionally the way Proposition 8 did.
But the march toward civil rights doesn’t generally follow a straight and happy path. It involves heartwrenching failures and grim work at times. It happens through a combination of legal rulings that ensure that the basic tenets of the country, its guarantees of equal rights, are not violated.
Then there are courageous legislatures that pass progressive laws that might be controversial in their time but that are clearly the right thing to do. And it happens through the electorate learning more about a subject and changing its mind, just as polls have found that the population has slowly but steadily come to favor recognizing same-sex marriage.
Look at Maine, where the legislature voted to recognize same-sex marriage, a decision that was quickly overturned by voters. And then, just a couple of years later, the voters overturned themselves and welcomed gay marriage.
The best outcome next week would be for the court to strike down Proposition 8 on the merits of the case, not on a technicality. A denial of such basic rights as marriage and the formation of a legally recognized family is unconscionably discriminatory. It causes harm to people whose marriages pose no threat to anyone except those who choose to feel threatened by them.
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The one good thing about a new ballot measure on same-sex marriage would be that a victory for gay rights would quell mutterings about “activist” judges -- a term used to describe justices who realize that majority rule doesn’t mean that the majority gets to trample unheedingly on the rights of minorities.