The California Supreme Court will hear oral arguments on the validity of Prop. 8 March 5.
The key legal question presented is whether Prop. 8 is a revision to the California Constitution or an amendment. But that is the legal question. What the court will be deciding for non-lawyers is whether a majority of California's voters can change the state constitution to require discrimination.
Our country has a long and miserable history of laws that permitted and sometimes required discrimination, and a more recent and noble history rejecting them. In those cases where courts rather than legislatures have overturned discriminatory laws, it was based on principles enshrined in constitutions -- the operating system for all ordinary laws. One of the core functions of courts in our system is to make sure democratically passed laws live up to the highest ideals we have set out in our constitutions.
California's Supreme Court will be deciding whether voters can change the principles in the state constitution, itself, to elevate discrimination against same-sex couples to a fundamental axiom. The court in The Marriage Cases overruled two statutes defining marriage because they violated the constitution's promise of equal protection. Prop. 8 was specifically designed to change what its proponents believed was a flaw in the constitution that would permit such equality.
The proponents of Prop. 8 did not characterize their initiative as changing the constitution's equal protection clause, but that is what they gathered the votes to do.
A smart piece on the op-ed page of the LA Times today makes the case that California's constitution is too easy to amend -- easier than the constitutions of most states, the federal charter, and even the founding documents of the National Football League and the UCLA Academic Senate.
But it does appear that the Prop. 8 folks used the rules that exist to give the equal protection clause an asterisk. If the court upholds Prop. 8, those same rules will govern the obvious and necessary initiative to restore the constitution's promise.
7 Comments for “Final Marriage Battle in California (Part V)”
posted by TS on
I hate to tell it like it is. But this legal argument is bunk. California propositions are votes to “amend” the state constitution. This is just like temperance all over again. In the early 1900s, raging temperance crusaders gained so much political power that they convinced the federal government to ban the sale and consumption of alcohol. Of course, this completely overstepped the constitution (which, if you read it, spells out pretty clearly that the federal government can’t really do anything) and the supreme court rightly instructed the judicial system not to enforce it, e.g. struck it down. The people, refusing to understand that it was for the states and not the feds to make their own alcohol laws, actually enshrined, in our revered constitution, their little agenda of the hour. It was later repealed in disgrace (with a small patch of language that is also enshrined in our sacred document.
The california constitution entitles the idiot majority (feel your faith in “democracy” slipping away?) to put whatever they damn well please in the state constitution, to suit whatever collective goal is occupying their little pea brains. There is no legal challenge, only to change people’s minds and get the populist crap that allowed them to do that out of the constitution.
If the court rules against prop 8, not only are they bad legal professionals, but they are also hurting our long-term credibility. We have to persuade people not to do this to us or change our system of government, not keep begging silly old lawmen to bend the rules because they at least understand our plight.
posted by Bobby on
Hey TS, how do you feel about the people voting to outlaw the death penalty, to raise or decrease taxes, to expel military recruiters from public schools?
Do you want legislators and judges deciding everything? Shouldn’t people have a right to vote on things?
What if a vegetarian judge decided to outlaw the consumption of meat?
You may be pissed off with the way the people voted, but that’s the price of a democracy. I’m pissed off that Obama got elected, I’m pissed off that the media treats him like a messiah, that he wants to spend billions on a pork-infested bailout. But hey, that’s the price of democracy, sometimes you get laws you don’t like.
I only wish us folks in Florida had more referendums. Here in South Florida, they created a Lexus Lane on public roads, they build stadiums with public money, and they’re buying land from Big Sugar at a cost of a billion dollars to “save the everglades.” Or look at New York, the MTA is raising fares and cutting services with complete impunity, not to mention all those new taxes that idiot literally blind governor has created.
I believe in the voters. If they’re not ready for gay marriage yet, so be it. Someday they’ll be ready.
posted by TS on
Bobby, you are a true conservative in a world where conservatism doesn’t exist, just political expediency, thanks to democracy. That’s why I think you should join me in hating democracy! Or at least large nation-state democracy.
It’s thanks to pea-brain mass attitude voters that the government is trying to simultaneously lower taxes and spend more. The voters communicate with their representatives and demand bigger government. Because said people disagree with each other on the specifics, the result is a huge government with hundreds of arms constantly fighting each other and sometimes undoing each other’s work. Liberal programs for teacher hiring spend 100 million hiring liberally slanted teachers. Conservative programs against evolution and contraception then spend 200 million more trying to undo the “damage” they did. Also, I might add it’s due to the same group of unthinking losers that you don’t have the right to get married, or, I think in Fla., adopt.
Have you ever wondered whether it might be nice not to have a federal government anymore? or maybe even state governments? You could move to a city-state where taxes were near zero, no corrupt businessman took your money to build a stadium to enrich himself, no tree hugger took your money to save the planet! Me personally, I’d move to a city-state where the government had a moderate tax rate and there were no laws against anything that doesn’t cause direct harm. Most of the taxes would go toward creating a system of licenses for activities deemed to be risky or put someone in a position of responsibility. If some silly group of political activists decided they hate alcohol or pot or gays, all they could do is try to change the licensing system, making people have to pass more rigorous tests before they could become card carrying drinkers, pot smokers, or consensual gay sex havers. That’s my city state, not yours.
Democracy is stupidest when it’s too big. Then it has to try to serve everyone, or at least make everyone feel served to gather votes. Instead of California having a statewide vote to ban gay marriage, or self-interested legislators or elitist judges getting to decide, why can’t San Fran and Berkely just have gay marriage, Orange County and the eastern Mormonvilles ban it, and the other areas decide on points in between?
posted by randy on
If the court rules that Prop 8 is valid, I suggest an immediate new ballot initiative that would deny recognition to any marriage consecrated by a Mormon church.
It should be fairly easy to pass. There aren’t too many of them, less than 5% of the population, a lot of people think they are a creepy sect, and it would prove a great point.
They certainly couldn’t argue against it!
posted by CPT_Doom on
I am not a Constitutional scholar, but I really wonder whether the Romer v. Evans decision could come into play. That, of course, was a federal decision striking down the CO law that prevented any anti-discrimination laws that protected LGBT people from being passed anywhere in the state. That was struck down because it prevented one class of people from asking the government for redress from grievances.
Because the right to marry for all was in place when the vote happened, it could be argued that Proposition 8 was appropriately added to the California state constitution, but the proposition still violates the federal constitution re: Romer v. Evans.
Just a thought.
posted by Bobby on
“Bobby, you are a true conservative in a world where conservatism doesn’t exist, just political expediency, thanks to democracy.”
—That depends on how you define conservatism.
“The voters communicate with their representatives and demand bigger government.”
—That’s not the case at all. Nancy Pelosi and her ilk don’t care about what the people want. When she supported $250 million for free condoms that’s not something anyone asked her to do. She was probably expecting a kickback from condom makers. I read that only 33% of American’s support Obama’s bailout, the same story was when Bush decided to bail out the banks. If the politicians listened to the American people, we would have low taxes and low spending.
“Also, I might add it’s due to the same group of unthinking losers that you don’t have the right to get married, or, I think in Fla., adopt.”
—So what? It’s because of unthinking losers that I have to follow gun laws and not carry a gun when I go into a bank or when I fly a plane. It’s because of unthinking losers that I have to follow a speed limit that does not acknowledge my abilities as a driver. But that’s how a democracy works, everyone who registers to vote can vote. Do you want to go back to the days of the founders when only male property owners where allowed to vote? Or how ’bout those literacy tests during segregation?
Your idea of licensing people to do dangerous things sounds like fascism. Sure, we can license them to fly a plane or drive a car. But a license to smoke pot? A license to drink alcohol? Are you kidding me?
“Democracy is stupidest when it’s too big.”
—Well sure, but when the people make mistakes, it gives them a chance to grow. After Jimmy Carter’s disaster as president, the people elected Reagan. So the people learned their lesson.
“Orange County and the eastern Mormonvilles ban it, and the other areas decide on points in between?”
—That would be messy. A marriage needs to be accepted by the entire state. Being married in Dade County means nothing if the moment you step into Broward County your marriage is no longer valid. In the end, gays are gonna want marriage recognize by the entire country, with the federal and tax benefits het marriages enjoy. Remember, some gays can’t wait to get into the russian groom business. Just like the breeders travel to Russia and Colombia to find pretty women to marry, many gays are gonna want that as well.
posted by Jorge on
Ay-yi-yi. What is with this elevating of the exact text and intention of the original Constitution to the form of a state religion? As the Bible says about some other very important rules, the Constitution is made for the people, not the people for the Constitution. There is no reason we should remain the slaves of the incidental thoughts of people long dead and long different from us unless it really is a good idea, and that’s something the people should decide.
To me it’s a shame the California state constitution is so easy to amend, but it obviously suits the needs of California’s residents at this time as well as at the time this was decided, or else that wouldn’t be the case.