This Thursday, California's Supreme Court will hear oral arguments on the validity of Prop. 8. Nicholas Goldberg has a good summary of the arguments at the LA Times.
I'll only add one thought here, which will set me apart from every spokesman, reporter, advocate and innocent bystander. The Supreme Court's decision (when it comes -- under court rules the justices have 90 days after oral argument to issue an opinion) will not be a ruling in favor of or against either side.
The court will decide some very important constitutional issues: What is the scope of a constitutional "revision" as opposed to an "amendment?" Is constitutional equality an inalienable right in California that requires more than just majority voter approval? Does Prop. 8 apply retrospectively to the marriages contracted prior to the amendment's passage?
But the answers to these questions will not amount to a judgment by the court on the moral, legal or social appropriateness of same-sex marriage, or on the wisdom of the majority who passed Prop. 8. The court has already said that the constitution, prior to its amendment, protected marriage as a fundamental right for all Californians, including homosexuals, and that its equal protection clause guaranteed the right of homosexuals to marry the person of their own choice, even if that person is not of the opposite sex.
The question before them now is whether a majority can amend the constitution, itself, to withdraw those rights. That is one of the hardest decisions any court in a constitutional democracy will ever have to make.
While it is a matter of political cliché to assume that judges act in bad faith and on their personal whims - and there is certainly evidence that some judges in this country are guided by their political beliefs - I challenge anyone of good will to provide evidence that the justices of California's Supreme Court engage in that kind of abuse of power. Let me say for the record that I have followed this court very closely for a couple of decades now, and I believe its present justices are among the most apolitical I have ever seen.
The questions before them are impossibly hard to answer. But they are structural questions about the fundamental rules of the democracy. The answers the court provides will not be a "victory" for gays or for religious believers. They will do no more than guide Californians in taking our next steps.
This will come as a shock to the perpetually shockable, but this
ruling like the court's last ruling on marriage, will not end the
debate.
5 Comments for “Rules of the Game”
posted by TS on
The original supreme court decision was bunk. Just like there is no right to “privacy” in the federal constitution, a right to “equality under the law” only really means that every person has the opportunity to marry an opposite sex person of their choice, get divorced, and do it all again in the great state of California. I doubt it was an apolitical one. The judges realize that it’s reasonable and good to allow gay marriage, so they start seeing figures in the constitution. If it was apolitical, it was the result of a catastrophic rise of judicial activism that gave them the jurisprudential precedent to make this unsupported extension.
Likewise, a finding that the dear people of CA can’t amend the constitution on a whim is not only bunk but a glaring denial of what the constitution actually says. The constitution says, to pararaphrase, the people can petition to put a proposition on the ballot. Potential propositions have the power to amend the constitution.
The real lessons of the proposition 8 debacle are as follows: constitutional democracy is only a slightly less crappy form of government than all the others. We are surrounded by morons that vote. Judicial activism always has and always will produce a rapid backlash in terms of a strategy-centered campaign to accomplish the original goal and spit the objections of the judges in their faces. and WE NEED MORE FEDERALISM! Imagine the city-state of San Francisco, or, as keeps getting proposed, the state of South California. If the Supreme Court actually enforced that handy little part of the federal constitution that says the feds have to leave all governmental powers not in the constitution to the states, then there could be unrestricted gay marriage there, with the blessing of the people and by the proper channel of the legislature.
posted by BobN on
Uh, TS, on what basis, then, is there ANY right to marry? It’s not “in the Constitution”, after all.
posted by everett on
TS, have you even READ the CA’s court opinion that ruled marriage a fundamental right under the CA constitution? Oh, and have you actually read SCOTUS opinion from Loving v. Virginia?
posted by North Dallas Thirty on
Uh, TS, on what basis, then, is there ANY right to marry? It’s not “in the Constitution”, after all.
Now you’re getting it, Bob. There isn’t a right to marry of any sort; marriage is a program established by the government to extend particular privileges and benefits in return for engaging in a specific, society-benefitting behavior.
Oh, and have you actually read SCOTUS opinion from Loving v. Virginia?
The interesting thing about Loving is that the very same court, not five years later, made it clear in their refusal of Baker v. Nelson that gay marriage bans were entirely acceptable under the Constitution and did not even qualify as a substantial Federal question.
posted by TS on
I haven’t read the decisions. I don’t have to be an “expert” to comprehend the basic premises of constitutional government. It works like this: the government exists because of the constitution, which spells out its exact structure and function while also defining the scope and limit of its powers. (Makes it all the more preposterous that the throngs have voted to put such a lowly culture war piece of crap in such a “lofty” document. But that is what they have done.) The “experts” have made a practice of extending the meaning of constitutions, not coincidentally I’m sure, in accordance with their own political visions.
Marriage is not mentioned in the constitution because the founders envisioned a system in which the institutes of government remained basically unchanged, making, enforcing, and interpreting laws about day to day things like tax rates, budgets, criminal code, and yes, marriage. All CA’s equal protection statement means is that the laws have to be applied equally to all. If the legislature makes a law that consenting pairs of men and women can marry each other, then everybody is afforded equal rights to marry an opposite sex person of their choice.
I’m saying all this because I don’t worship the constitution or the courts and you shouldn’t either. Doing right and not doing wrong should transcend government. Why are we fighting to uphold a faulty interpretation of a faulty charter, when we should just be fighting for a better charter? Because we’re blinded by the prospect of accomplishing our goal, that’s why. The enemy is using that weakness for results against us.