Last word (for today)

Scott's comments are really very good. So here they are:

The day after Prop 8 passed, Vicki asked me some pointed questions about the nature of possible challenges and the validity of her brother's marriage about three months ago. My bottom line reply was that she was asking for $5 Million of legal analysis in 15 minutes, and that as good as I am I don't bill at $20 Million an hour.

Fortunately, the ACLU, LAMBDA, among others have all opened fire with direct review to the California Supreme Court. Along with several highly respected appellate firms, the plaintiffs challenging Prop 8 have the best representation possible.

Interesting issues include the procedural validity of Prop 8's purported amendment to the state constitution, retroactivity (the AG's statement is not precedent, although I agree with his analysis), and one meaty issue I noticed November 5 (apparently validated by ACLU), that Prop 8 speaks only to the validity of same sex marriages, but does NOT address the Equal Protection Clause of the state constitution. Prop 8 could have avoided this thorny issue by adding the words "Notwithstanding the Equal Protection Clause of this Constitution . . ." So there is a patent contradiction between the purported amendment and the Equal Protection Clause.

Prop 22, by contrast (which amended the California Family Code, not the state constitution) was struck down by the California Supreme Court as violating the state Equal Protection Clause. The constitutional right of course trumped the statutory restriction.

The absence of the prefatory language in Prop 8 was doubtless intentional, as the Mormon Church also has very good attorneys.

In the end this is purely political, even though the legal issues are fascinating. By not including that prefatory language, the drafters of Prop 8 simply created one more issue to litigate, thereby ensuring the “issue” remain active that much longer.

Not surprisingly, the backers of Prop 8 are in business, and business has been very, very good for them. Unfortunately the product they sell is hate and fear.

The longer they can keep the manufactured "issue" of gay marriage alive (cf. the politically conceived term "partial birth abortion"), the longer they can continue to sell their product: "we hate fags." We shouldn’t be overconfident, however, since in 2004 Karl Rove proved this to be a very, very successful product.

But take heart that the righteous fight for a properly expansive interpretation of equal protection under the law and for marriage equality is being fought by the best available. Until then, let’s raise our voices in righteous indignation.

Playing devil’s advocate is essential to being an effective attorney. I, however, am simply confounded by the opposition, meaning either that I’m lacking professional chops, or that the proponents of Prop 8 and its ilk totally lack logic and merit. I doubt very seriously that the problem is any lack of skill on my part.

ed note: Vicki is a friend of ours. Her brother was married this summer to the love of his life. The family rejoiced that, for the first time since he hit adolescence and knew who he was, he was a full member of society, with all of the rights and responsibilities and sheer joy that accompanies that.