I Five The Sandbox

November 7, 2008, 1:50 pm; posted by
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Well, this is interesting. The history of gay marriage in California has been a contest of constant one-upsmanship, like that playground ‘game’ where you start by saying “I one the sandbox,” and proceed onward in an attempt to get your playmate to admit that he or she “eight the sandbox.”

You ate the sandbox?? Ewww! Why would you ever do that?!

This game started in 2000, when the voters of California voted by a 62-38 margin to codify “the union of a man and a woman” as the only valid form of marriage in the state. It took a few years, but soon enough, the state legislature took up the challenge, passing a bill in 2005 to legalize same-sex marriage. Ah, but beside the see-saw stood new Gov. Schwarzenegger. Ahnuuld vetoed the bill, calling it either unconstitutional or redundant, depending on how the courts eventually viewed the original vote.

The next stop was the intermediate court in California, which reversed a trial court ruling to find that the ban on gay marriage was non-discriminatory and based on a legitimate state interest. Now back to the legislature, which passed their bill yet again — and yet again found it blocked by the Governator, who said he wanted to know how the California Supreme Court felt on the issue. And they hopped onto the merry-go-round this past May, in a 4-3 ruling that constituted a breathtakingly broad expansion of precedent: finding sexual orientation to be a protected class like race and gender and subjecting any classification on its basis to “strict scrutiny.” These guys play for keeps!

But given the permissive nature of the California ballot, no one thought the game was over — and sure enough, the same tide that swept Obama into office this week also resulted in the narrow passage of a state constitutional amendment to ban gay marriage, as nearly 70% of blacks voted “yes” on Prop. 8. The voters spoke, and you could see the words formed clearly on their lips: “We seven the sandbox.” Game, set, match?

Not quite. Now comes word of future court challenges, on the ground that the constitutional change might be best termed a “revision,” which would require a two-thirds vote in the legislature before a majority vote by Californians. What Carpenter writes makes sense: given that the CA Supreme Court has already held that the right to marry is a fundamental right not to be denied on the basis of the suspect class of sexual orientation, they may well take “the importance of the right declared and the suspect nature of the discrimination into account,” and overturn (yet again) the will of the people through judicial fiat.

I’m hardly rabid on this issue, but I found the court’s decision unreasonable. And since California law provides for constitutional amendments through direct election, the people ought to have some say in the matter when they think the judges screwed it up. The only question is whether California’s highest court will submit to the people — eat the sandbox, if you will — or just conjure up a new integer ‘twixt seven and eight.


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