Guest Post: withhold marriage from everyone
Nicky asked me if I’d be willing to give an update on my “nuclear option” efforts, and I’m grateful to be able to share them with you here.
I’ve been following the same-sex marriage story here in California for the past four years, ever since San Francisco’s “Valentine’s Day Revolution”, and have over those years read the various lawsuits and decisions that led earlier this year to the California Supreme Court’s landmark decision [PDF] to require same-sex marriage within the state of California. In reading that decision, I was struck by a passage late in the majority decision.
When a statute’s differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class. –In Re Marriage Cases, p. 119.
In short, having gone through an exhaustive one hundred and eighteen page argument detailing why California’s domestic partnership arrangement was unconstitutional, the Court on this page turns it’s
attention to the “What are we going to do about it?”, and outlines the basic two possible options–granting marriage to same-sex couples or denying the name “marriage” to everyone–in either case giving both same-sex and opposite-sex couples the same rights and responsibilities. (It then proceeds to choose the former, but what’s important to note is that the court found it had two options, not one.)
About two months ago, in working on the “No on 8″ effort I read the text of Proposition 8, and realized that, taken literally, the effect of Proposition 8 was only to outlaw same-sex marriage, but it did nothing directly to remove the parts of the Constitution that the Court used in making the decision I quoted above. In short, I found what I believe to be a strong argument that the proper legal effect of Proposition 8 should be “the withholding of the designation of marriage from all Californians.” Since then, I’ve been working on possible tactics and strategies for using this argument in one way or another to advance the cause of equal treatment under the law. Like a man with a hammer, I went looking for nails.
I found it difficult to get much assistance in this effort, resources in many organizations are slim, and there’s no question that this is, to most folks, a pretty radical result, early descriptions of this legal argument referred to this argument as “the nuclear option” to make it clear that it was a radical decision, at least in terms of the largest changes that might result were the Court to accept the argument. I think those outcomes are unlikely, though, and it was one of the six lawsuits filed against Proposition 8 that gave me the final hint, the idea that such a profound change as “withholding marriage from everyone” was of a magnitude to most folks in our society that it might strengthen the argument that Proposition 8 was too large a chance to California’s Constitution to be passed without a two-thirds majority. (I’ll spare you the legal arcana.)
So I did this crazy thing. I went and wrote what’s called an amicus letter to the California Supreme Court, without much in the way of legal assistance. (I did get some under-the-table help from a paralegal
or two, but any mistakes are my own.) There’s a moderate amount of “process” to the whole thing, but really it’s as simple as writing the Court. Over that week and a half I gave up working on my photography business (I’m a struggling nature photographer by day) and immersed myself in the various lawsuits already filed and legal stuff, and in the end I completed an eight-page letter [PDF] outlining a legal argument that suggests that if the Court upholds Proposition 8, then it must (I claim) do so by “withholding the designation of marriage from all,” and then using that almost as a club to suggest that the Court overturn Proposition 8.
The letter likely arrived at the Court Saturday, and with any luck will appear on the Court’s web site in the next week or two. There’s no way to know what effect it will have save to realize with humility that the chances of it having an effect on the case directly are small, but perhaps not zero–just small. But it felt good to make the argument, and to demystify a lot of the legal details going on in the lawsuits for myself in the process.
I hope it’ll do more good than that, though. In working on the project I’ve become more aware of the privilege of legal marriage that I’ve enjoyed for twenty-four years, and I’d like other people to be able to enjoy those legal rights–I’m less caught up in the “name” save in how it relates to how those relationships are treated by other US states, the federal government, and other countries. Perhaps the argument can serve as background information or ammo for those folks participating in AtMP’s Marriage Boycott, or even just folks who want to raise the issue by refusing to “recognize marriage,” it is my belief that those efforts are going to go a long way over time to help communicate how significant the marriage issue is.
- Joe
Joe Decker is a full-time nature photographer, photography teacher and activist living in the San Francisco Bay Area. Joe’s activism has taken shape in efforts as wide-ranging as the creation of God Hates Shrimp to serving as a discussion facilitator at San Jose’s Billy DeFrank LGBT Center to having served for nearly five years on the Board of Directors of Impact Bay Area. Joe’s nature photography has been exhibited across the United States in locations including the LA Center for Digital Art and the Smithsonian in Washington D.C.
December 9th, 2008 at 1:30 am
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