CA Supreme Court Asks Prop 8 Combatants to Address Two Constitutional Questions

Covering an appeal from the Archbishop of San Francisco for mutual respect and tolerance between those who supported Proposition 8 and those who found it offensive, the National Catholic Reporter says that the California Supreme Court has agreed to hear three cases that seek to overturn the state-constitution amendment, approved by a slim margin November 4th:

On Nov. 19 the California Supreme Court agreed to decide constitutional issues stemming from voters' approval of the initiative but has denied requests to suspend enforcement of the initiative until the questions are resolved.

In issuing its order on Proposition 8, the California Supreme Court directed supporters and opponents of the initiative to submit written arguments on three questions:

-- Is it invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
-- Does it violate the separation-of-powers doctrine under the California Constitution?
-- If it is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The court issued its order in three cases protesting Proposition 8 as an unconstitutional override of the high court's ruling in May that same-sex couples have a right to designate their unions as marriage.

The parties in the cases include same-sex couples and a number of cities and counties that want to issue marriage licenses under the ruling. They claim the measure denies same-sex couples equal treatment under the law.

NCR's coverage tries to focus on positive aspects of Archbishop George H. Niederauer's plea, issued in his weekly column in Catholic San Francisco's December 5th issue--including his appeal to churchgoers to "speak and act out on the truth that all people are God's children and are unconditionally loved by God. Whoever they are, and whatever their circumstances, their spiritual and pastoral rights should be respected, together with their membership in the church. In that spirit, with God's grace and much prayer, perhaps we can all move forward together."

NCR also noted Niederauer's call for civility from both sides: "We need to stop hurling names like 'bigot' and 'pervert' at each other. And we need to stop it now." He added that both sides "need to stop talking as if we are experts on the real motives of people with whom we have never even spoken."

The article acknowledged that the column is also an apologia for the role of the California bishops in passing Proposition 8 and specifically for Niederauer's role in drumming up support from the Mormon Church--which reportedly contributed $22 million of the $35 million which backers spent to get it passed.

However, NCR also provides a link to the archdiocese's website. And the complete text of the column makes it clear that he devotes a lot more words to defending the churches' role and his tactics than to reconciliation--and that his stance actually impedes reconciliation.

Although Niederauer denies that the San Francisco Archdiocese or any other California diocese contributed funds directly to the Proposition 8 campaign, the column makes it clear that they did fund the cost of pamphlets printed for it and that he did indeed use Mormon contacts he developed during 11 years as Bishop of Salt Lake to secure LDS political and financial support for Proposition 8.

He devotes the bulk of the column to reiterating religious conservatives' usual boilerplate rationale for making the rights of gay couples less than those of straight couples:

Quite a number of important political issues regularly touch upon the ethical, moral, and religious convictions of citizens: immigration policy, the death penalty, torture of prisoners, abortion, euthanasia, and the right to health care are some such issues.

Members of churches who supported Proposition 8 sincerely believe that defining marriage as only between a man and a woman is one such issue. They see marriage and the family as the basic building blocks of human society, existing before government and not created by it. Marriage is for us the ideal relationship between a man and woman, in which, through their unique sexual complementarity, the spouses offer themselves to God as co-creators of new human persons, a father and mother giving them life and enabling them to thrive in the family setting.

Are there many instances in which this ideal fails to be realized? Of course there are. Single parents, grandparents, foster parents and others deserve praise and support for their courage, sacrifice and devotion in raising the children for whom they are responsible. Still, the proponents of Proposition 8 subscribe to a definition of marriage that recognizes and protects its potential to create and nurture new human life, not merely a contract for the benefit of a relationship between adults.

Whatever others may say, the proponents of Proposition 8 supported it as a defense of the traditional understanding and definition of marriage, not as an attack on any group, or as an attempt to deprive others of their civil rights. The fact remains that, under California law, after the passage of Proposition 8, same sex couples who register as domestic partners will continue to have “the same rights, protections and benefits” as married couples. Proposition 8 simply recognizes that there is a difference between traditional marriage and a same sex partnership.

In its original ruling, of course, the California Supreme Court disagreed that California civil unions afforded gay partners the same rights as straight partners. The issue the court now faces is whether the state's initiative process can validly be used to remove an existing right from the state constitution by a simple popular majority.

Meanwhile, the Archbishop's plea for tolerance rings untrue, because the churches who gave Proposition 8 impassioned support and millions of dollars never considered a better alternative to the court's ruling: the proposal raised elsewhere and supported here, to make civil unions the partnerships which states recognize for ALL couples and leave the definition and recognition of marriage a matter between each church and its adherents.

It is the religious right's single-minded insistence that gay unions must be treated legally as something less than heterosexual unions and its closed-minded refusal to consider this other alternative that make their anti-gay bigotry crystal clear.