An attorney, Manuela Albuquerque who has argued before the California Supremes, attended their hearings on gay marriage and wrote a summary for the layman. First, the prediction: the court will find in favor of gays. Four of the seven appear to want that and it might be unanimous because the other three can't justify their desire to uphold the ban. Discrimination cannot be based on immutable factors (and the state Attorney General has already conceded that sexual orientation is immutable) unless the state can offer up a credible public policy reason why that discrimination is appropriate. Claiming that's what the voters want doesn't cut it. Calif. already has sweeping laws to prevent discrimination against gays, including allowing domestic partnerships and adopting children. These laws have lengthy sections documenting past discrimination and justifying why arguments against gays don't work. In the sense, all the arguing has already been done and already been enshrined in Calif. law. The Supremes (and pro-gay lawyers) need a *very* good reason to overturn all that work. That left the AG arguing "We've always done it this way" and looking embarrassed as he did so. In other cases, the Supremes have thrown out the argument, "Because that's what the voters want." The answer to that is, "We only look at whether the law conflicts with the Constitution. Voters are free to change the Constitution if they disagree with the Court." One justice tried the "no harm, no foul" approach. If domestic partnerships were enough like marriage to not cause harm, then gays couldn't claim discrimination. The anti-gay groups answered for him with their claim that marriage has a special solemn status in society, which gays shouldn't have. That doesn't leave anything to stand on. As for remedy, the court will likely simply invalidate restrictions to same-sex marriage. That means it would not have to go before the legislature. Ready for June weddings?
No comments:
Post a Comment