California Proposition 8: Arguments Before Court Go Well Beyond Gay Marriage
California Prop. 8: Arguments Before Court Go Well Beyond Gay Marriage
"A federal appeals court on Monday began hearing arguments on the constitutionality of Prop. 8, California’s ban on same-sex marriage.
Barry P. McDonald, a professor at the Pepperdine School of Law, says the issues being made in court go well beyond the questions of marriage. Here’s an analysis he provided to The Times:
Both parties on this appeal seem to be arguing about much broader issues than this case presents. As the California Supreme Court framed the issue in its decision on the constitutionality of Prop. 8 under the state Constitution, it is whether withholding the official name or designation of "marriage" to same-sex couples is constitutional when state law has given those couples all the rights and obligations of marriage (including parental rights) under its domestic partnership laws. That is a much different question than whether denying the right to marry altogether is constitutional.
It presents the narrower issue of whether there is a legitimate basis for withholding the name "marriage" when all other rights and obligations have been granted. As to this question, at least two answers might be offered. One answer might be that it is clearly irrational and relegates same-sex couples to second-class status. Another answer might be that the people of California have a right to experiment in this area and that it is not an "all or nothing" proposition (no pun intended). In other words, the people want to give same-sex couples all the rights and obligations of marriage but also want to see what effect that will have on society and children raised in same-sex households before they "finalize" this arrangement by making absolutely no distinctions between traditional and same-sex marriage."
Whatever is decided today, standing to appeal or not, the issue of gay marraige will be ultimately decided by the Supreme Court of the United States.
Politically, should SCOTUS allow nationwide gay marriage, I would think there would be an attempt to pass a U.S. Constitutional amendment limiting the power to grant gay mariage to the states or prohibing it entirely.
This issue may persist for years in the courts, Congress and the voting booth.