In a 6-to-1 decision mandated by the California Supreme Court, Proposition 8 (fondly nicknamed Prop. H8) was deemed as a "constitutionally permissible" amendment and therefore upheld. As a result, thousands of queer identifying individuals can still no longer marry within the state of California. As an infringement on basic human rights, the California Supreme Court's decision to maintain Proposition 8 is an affront to the queer community.

However, the opinion presented by the California Supreme Court has a notable corollary. In addition to completely banning same-sex marriages in California, the California Supreme Court judges opted to NOT retroactively deem previous same-sex marriages as invalid.

It's stated on page 35 of the official opinion released by the Supreme Court.

"In summary, we conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the “inalienable rights” theory proffered by the Attorney General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid."

This paragraph, taken verbatim from the official opinion, states that Proposition 8 is fine as is. But, due to the language taken from the original Prop. 8 document, previous same-sex marriages are not seen as invalid relationships/legal partnerships. Therefore, the Supreme Court is willing to recognize the previous marriages as valid, but refuse to recognize any future instances.

In essence, the California Supreme Court judges are practicing legal ambiguity to the fullest.

How is it that California judges are willing to bend the law in regards to marriage rights? Perhaps the judges are basing their opinion on legalities and their dependent natures on timeframes. One could argue that the 18,000 marriages enacted before Prop. 8 have every right to be legal with retroactive reprimand. California is following through with the elementary school rule of "No take backs! No trade backs!"

However, the issue here is the institution and political concept of marriage, not so much the timeframe that contextualizes it. What is stopping us from allowing the entire queer community possessing the right to marry? How can we give that right only to some and not to others? The recognition of the Valid 18,000 presents an interesting quagmire:

Despite the upkeep of Prop. 8, same-sex marriage is recognized in pockets throughout the state of California. What is happening is a visual example of hypocrisy spawned out of a temporal context. And fortunately, this temporal context is the one advantage our community can use to bolster our argument.

The "No take back!" clause enacted by the Supreme Court seems to be the only arguing point for keeping the Valid 18,000. In order to avoid further outrage, the Supreme Court allowed some individuals to possess same-sex marriage rights. By doing so, the Supreme Court could claim same-sex marriage has the capacity to succeed in California, but now is not the time for it. When faced with anti-Prop.8 arguments, the courts can now claim that California isn't completely ignorant or discriminatory: the existing Valid 18,000 are "proof" of that. As for Prop. 8 supporters, the California judges can argue that their demands had to be partially met. Meeting the queer community "halfway" is the only way to maintain a non-turbulent political atmosphere.

But, compromises like this won't work. Let's imagine this compromise in an environment where same sex marriages were initially banned by Prop.8. During this banned period, same-sex marriages were occurring illegally. In this alternate universe, Prop.8 is eventually repealed. Then, let's imagine if pro-Prop. 8 supporters called for a constitutional review of California's anti-Prop. 8 decision. Such an argument would sound like this:

If something like this happened, the conservative right would be outraged! They would argue that if some same-sex marriages are banned, then every marriage should be banned! Especially considering conservative ideaologies regarding legal standards, if the law applies to one, it should apply to all! In this case, the conservative right/pro-Prop. 8 supporters would argue the law should fully not recognize same-sex marriages.

It sounds ridiculous right? Legal ambiguity and partiality, in this case, should not be encouraged. It confuses everyone involved in terms what is deemed legal and what isn't deemed legal. The logic used by the Supreme Court to create this compromise cannot work for either party. Therefore, each side will argue for an absolute decision banning all or banning none. The Supreme Court is eventually going to make an absolute decision. Again, I pose the question: "What is stopping the California Supreme Court from granting full recognition of same-sex marriages to the queer community?"

This legal ambiguity can be used to our advantage. The courts are willing to recognize some same-sex marriages. It's only a matter of time until we see full recognition of queer marriages.

NOTE: In no way do I view the 18,000 individuals validated by the Supreme Court as aggressors or negatively privileged individuals. I congratulate them on their success on achieving marriage in the state of California. If anything, their success should be our inspiration for anti-Prop. 8 campaigns and queer mobilization.