Propostion 8 supporters would have everyone believing that those same-sex couples married between the time the Suprieme Court of California (SCOC) declared their right to marry and the passage of Propostion 8 have no stake in the current challenge to amendment of the Constitution to provide that marriage is between a man and a woman.
The Pacific Justice Institute raises the argument in the letter brief it file in oppositon to the Petition filed in Tyler v. Horton.
The Petitioners, having been married prior to the passage of Propostion 8, have not demonstrated that they are beneficially interested in the status of the marriage amendment.
One wonders if Chif Justice George will ask the proponents of 8’s validity to stipulate that those marriages, let’s call them early marriages, are valid and recognized. Don’t expect it will happen.
Even should the early marriages be upheld, those so wedded will suffer greatly should the right to marry be denied others.
The right to remarry: The Court must consider how Proposition 8 affects the rights of the early same-sex marriers to remarry. Yes, Virginia, married homosexuals are likely to find their marriages ended by divorce and death, just like the marriages of heterosexuals, in which case heteros often remarry. We all know how statistics can be used to lie, but it is safe to assume that, should the divorce rate amongst homosexuals be the same as that of heterosexuals, several thousand of the early same-sex marriages will fall prey to divorce in the next five years.
Freedom of Association: Then there is the early marrieds freedom of association, an extremely important right and especially in the case of an impacted minority. The right not only encompasses a right of privacy in one’s association, but the right to petition government as to one’s greviances. That the value of the right of association is often directly proportional to the size of the association is patent. Similarly, an association limited per se to the members of 18,000 marriages will likely be much weaker than one drawing its membership from a pool of, for example, 180,000 same-sex weddings.
Diminished dignity: The SCOC has rightfully paid a great deal of attention to the question of the injury that same-sex unions suffer to their dignity by the denial of the marriage word. Even should the few 18,000 marriages be held to be legal, their participants will suffer in dignity unless the same right be preserved for all homosexuals. It takes little imagination to realize that many will assume that legitimately married same-sex couples are not legitimately marriage, if the purported Constitutional amendment is upheld.
Even when the validity of those early marrieds is recognized, their participants will be looked at as though they were social experiment or a freak of society, unless the right to marry is expanded to all homosexual persons.
The children: Nor are the potential injuries limited to the wedding participants. Homosexuals have children. They adopt children and, in part, they can biologically conceive. Nor are the children of same-sex couples necessarily not heterosexual.
The SCOC may also consider the harm the children of early marrieds may suffer, should the right be limited to the early 18,000. By encouraging these legal marital unions to be perceived as illegitimate, it is all the more likely that the legal children will be perceived as illegitimate.
Harking back to the right to remarry in case of divorce, how many early marriers with children might remain in a bad, evan a harmful marriage, if they are denied the right to remarry? Just as their are mentally and physically abusive heterosexual marriages, there will be abusive homosexual marriages. All too often dangerously harmful marriages go on for way too long, due to the need to provide children with a home. Think of the postion the parent of a child is placed in, when they know that if they leave their same-sex marriage they will be barred from providing their chidren with the safey of another same-sex marriage.
There are certainly other concrete examples of the injury risked by early marriers in the instant proceedings over Propostion 8, but the above is surely enough to demontrate that the early marrieds have a very real stake in not only the validity of their marriages, but the right of others to same sex marriage.
Filed under: Proposition 8, law | Tagged: divorce, freedom of association, homosexual, Propostion 8, SCOC, Supreme Court of California
