What Makes Sense And What Doesn’t

Upholding Proposition 8 was the right thing for the Supreme Court to do. When the people act directly, that is the fundamental and most legitimate exercise of power imaginable in a democracy. I don’t like what they did but they did it and preserving the right of the people to govern themselves is obviously important on a different and more powerful level than any individual step they take to engage in that self-government. Besides, on this individual issue, the voters can fairly easily change their minds and it’s looking more likely that they’ll be given an opportunity to do so during the gubernatorial election in 2010.

What doesn’t make sense to me is the non-retroactivity. Yes, I understand that presumptively a law is not retroactive unless there is clear language to indicate an intent to be retroactive. But Prop. 8 speaks in terms of “validity.” For instance, a racially-restrictive covenant on a property deed is invalid, and therefore it is not presently enforceable, even if it was enforceable back when it was written. Prop. 8 on its face renders any same-sex marriage invalid, regardless of when the license was issued or what governmental body issued it. That was clearly the intent of Prop. 8’s authors and of the voters who voted for it.

Besides, about 18,000 same-sex couples in California have marriage licenses that are valid despite Prop. 8 — licenses that cannot be issued to new same-sex couples who apply for them now. So there are now 36,000 people who hold marriage licenses that they could not get today, and which remain “grandfathered” in place. How is that equal treatment before the law? And how is that showing appropriate deference to the will of the people as expressed through democracy?

Look, I’m going to vote to repeal Prop. 8, and I will argue with great intensity why it should be repealed when that issue comes before the voters. But until then, Prop. 8 is part of the Constitution and I have to protect and defend it whether I like it or not (which I don’t) because that’s my oath. I don’t think the Supremes made the right call in interpreting and applying it. Either strike it down altogether or uphold it altogether. Don’t split babies on fundamental rights and basic concepts about government.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.