In her Washington Blade column, Jessica Lee interviews the Cato Institute's Robert Levy on libertarian support for gay marriage and the lawsuit against California's Prop. 8. Says Levy:
Majoritarian outcomes cannot trump the Constitution. Legislators can pass statutes but if they lead to outcomes that do not comply with the Constitution then it is the appropriate role of the courts to overturn them. Gay marriage is one of those instances.
True, but I wonder if it's smart strategically. As this Blade article notes, in 2000 California passed Prop 22, a statutory ban on same-sex marriage, by 23 points; in 2008 California voters passed Prop 8, the constitutional ban, by four points. Winning elections (eventually) is a stronger bedrock for our rights than judicial decrees. And without majority or near-majority support in three-fourths of the states, perceived judicial over-reach could trigger a successful anti-gay marriage amendment to the U.S. Constition that no court could overturn-the worst-case scenario.
A ruling in California is only weeks away, but that's only the beginning. At some point, the case will end up before the U.S. Supreme Court , perhaps years from now. In the meantime, battles will still be fought state by state, and winning over the political center/center right (not just the left!) remains paramount to our success.
18 Comments for “Courts and Voters–and Courting Voters”
posted by Jimmy on
In other words, might makes right, the dictates of the Constitution be damned. It’s usually the case that when a charge of tyranny is made, it’s likely just a slight of hand designed to create an illusion of patriotism in order to provide cover for the startling evidence that the accuser is profoundly guilty of the very charge they have levied.
Today’s conservative movement is so upside down it would probably charge Eisenhower with treason, and most certainly water board Jesus Christ.
posted by North Dallas Thirty on
I am constantly amused by gay and lesbian liberals who shriek that people have no right to vote on and amend their constitutions…….while invoking the Fourteenth Amendment as rationale for gay-sex marriage.
posted by Jimmy on
Then you haven’t been paying attention, PF. State constitutions must comply with the US Constitution.
http://www.usconstitution.net/stateconst.html
posted by North Dallas Thirty on
Which can also be amended accordingly, as is spelled out in the Constitution.
Again, the amusement value. Gay-sex marriage supporters insist that gay-sex marriage is a “constitutional right” even though it’s found nowhere in the Constitution, but insist that voters have no right to amend their own constitution, which is clearly written therein.
posted by Jimmy on
“Which can also be amended accordingly, as is spelled out in the Constitution.”
No argument here, PF. But, amending the US Constitution ain’t easy, for good reason.
“Gay-sex marriage supporters insist that gay-sex marriage is a “constitutional right” even though it’s found nowhere in the Constitution, but insist that voters have no right to amend their own constitution, which is clearly written therein.”
A horrible perversion, which is redundant as applies to you, PF. Equal protection for law abiding citizens is enshrined in our law. As yet, pony fu**ing is still illegal in San Francisco per California Penal Code Section 286.5, a misdemeanor (no biggey), so you’ll have to reserve that for a festive weekend at some Nevada Rodeo.
Yippee ki yo ki yay!
p.s. With regard to states, I refer you to my previous post.
posted by BobN on
“Bedrock”? The Constitution is bedrock. Winning popular elections might be a good basis, but let’s not torture words to make the point. And enforcing it is not, by any means, “judicial overreach”. It’s their job.
posted by Mark on
“Gay-sex marriage supporters insist that gay-sex marriage is a “constitutional right” even though it’s found nowhere in the Constitution, but insist that voters have no right to amend their own constitution, which is clearly written therein.”
Gay-sex marriage? WTF is that term about?
It is true that there is no explicit right to marriage in the United States Constitution. But there are the 9th and 10th Amendments, and the fact that the court has recognized implicit rights starting with Marbury v. Madison.
In Loving v. Virginia the court unanimously said there is a “fundamental” right to marriage and the court has said laws must at least have a “rational basis.” You wanna disagree with that, fine. But that’s the current state of the law.
Nobody is saying that voters can’t ever amend their state Constitions. However, state Constitutions cannot contradict the U.S. Constitution. Nobody disagrees with that, as far as I know.
posted by Throbert McGee on
I believe ND30 means to assert that since California’s domestic partnership laws already provide(d) same-sex couples with every legal protection the state of California could provide for, “upgrading” to same-sex Marriage™ accomplished (or will accomplish) exactly nothing, other than to place a gold seal of gummint approval on gay sex; and Prop8 took away exactly nothing, except this same gold seal of approval on gay sex.
posted by Throbert McGee on
Actually, THE worst-case scenario would be a Constitutional Amendment that prohibited and retroactively voided domestic-partnership and civil-union laws anywhere in the U.S., but that’s not bloody likely.
On the other hand, an amendment that banned federal recognition of “same-sex marriage”, but allowed federal recognition of “same-sex civil unions,” might theoretically pass, would be a huge improvement for gay people with foreign-born partners and possibly also for gays in the military, and would satisfy a lot of people. Of course, it would be opposed by radically anti-gay religious conservatives, and also perhaps by radically egalitarian gays/feminists.
posted by North Dallas Thirty on
About the fact that gay and lesbian people are insisting that marriage to whatever with which you wish to have sex is a “constitutional right”.
Because, really, gay-sex marriage doesn’t serve any useful social purpose. It doesn’t stop gays and lesbians from being promiscuous and, since gays and lesbians are incapable of reproducing naturally, doesn’t confer any benefits on children.
Loving, as people have pointed out before, was fine because race is not by any means a biological concept and lacks any impact beyond perception, and also the children produced naturally by a couple were being prevented from being recognized as such.
But since gender is clearly a biological concept and there will never be any such thing as a child produced by a same-sex couple through natural means, there is a considerable difference.
posted by Mark on
“Because, really, gay-sex marriage doesn’t serve any useful social purpose. It doesn’t stop gays and lesbians from being promiscuous and, since gays and lesbians are incapable of reproducing naturally, doesn’t confer any benefits on children.”
I wasn’t aware that any marriage stopped anyone from being promiscuous who was bound and determined to be. However, I believe many (but not all) couples view marriage as a vow to be faithful so they try harder to not stray off the reservation. But if people want to have an “open marriage,” who cares?
I’m surprised you don’t find that marriage might have some benefits for adopted children.
And regardless of the social benefits of same sex marriage (and I strongly disagree that it offers none), surely marriage offers couples personal benefits. What’s wrong with that?
posted by Mark on
“I believe ND30 means to assert that since California’s domestic partnership laws already provide(d) same-sex couples with every legal protection the state of California could provide for, “upgrading” to same-sex Marriage™ accomplished (or will accomplish) exactly nothing, other than to place a gold seal of gummint approval on gay sex; and Prop8 took away exactly nothing, except this same gold seal of approval on gay sex.”
I’m not sure how a marriage license is a “gold star of approval” for anyone. It just recognizes a relationship and constitutes a legal contract.
It is true that Prop 8 did not take away any significant rights, since the Feds don’t generally recognize gay relationships. However, until the government at all levels treats gay and straight couples the same, there is a great injustice.
posted by Debrah on
“But since gender is clearly a biological concept and there will never be any such thing as a child produced by a same-sex couple through natural means, there is a considerable difference.”
**************************************
Using race or ethnicity as an analogy for gay issues and “gay rights” will always show a laziness and a desperation from proponents and “activists” for SSM.
Moreover, it places those individuals a few steps downward on the perceived intelligence quotient ladder.
posted by Tom on
It is exactly the question of whether Proposition 8 violates the US Constitution that is being litigated in Perry v. Schwarzenegger.
The background for Perry was laid out by Ken Starr in oral arguments before the California Supreme Court in the state case concerning the validity of Proposition 8 under California’s constitution.
Discoursing about scope of the right to amend the California constitution to remove civil rights established by the California constitution, Starr argued: “The issue before this iconic court has to do with the sovereignty of the people of California. We have heard a lot about individual rights and suspect classification … But the Attorney General’s office points to one inalienable right, the right to marry. But the people, too, have an inalienable right to change their constitution.”
When questioned by Chief Justice George, Starr asserted that the California constitution would permit a simple majority of the voters to repeal any right enshrined in the state constitution, including the right to free speech or a prohibition against racial discrimination. “While it is unthinkable … the people do have the raw power” to make whatever changes they desire, so long as they do not alter the basic structure of government.
Starr qualified that statement by noting that changes that violate the US Constitution, would be struck down on federal grounds, but also noted that same-sex marriage had not, to date, been deemed protected under the US constitution.
And that is what Perry will ultimately decide.
The scope of the decision might be narrow or more general — my hope is that it is narrow, and confined to the peculiar circumstances of Proposition 8 — but the challenge brought by Olson and Boies in Perry is ultimately grounded on the assertion that the US Constitution protects the right of same-sex couples to marry.
If it does, then Proposition 8 necessarily fails; if it does not, then Proposition 8 necessarily stands.
posted by Jorge on
In Loving v. Virginia the court unanimously said there is a “fundamental” right to marriage and the court has said laws must at least have a “rational basis.” You wanna disagree with that, fine. But that’s the current state of the law.
If I remember correctly, Loving involved a couple getting married in another state, moving back to Virginia, living together as husband and wife, and getting arrested.
By those standards, we already won the fundamental right to marriage in the 2003 Lawrence v. Texas case.
In contrast, prop 8 involves no threat of arrest and is about nothing more “fundamental” than social status and entitlements.
As for the “rational basis” test, first, I question whether that applies to a state constitutional amendment or revision, and second, other state courts have ruled that laws denying marriage recognition to same sex couples pass that test.
posted by BobN on
Because, really, gay-sex marriage doesn’t serve any useful social purpose. It doesn’t stop gays and lesbians from being promiscuous and, since gays and lesbians are incapable of reproducing naturally, doesn’t confer any benefits on children.
Nice of ND to drop the mask and expose just how hateful he is.
posted by North Dallas Thirty on
Ah yes, the typical weapon of gay and lesbian people who don’t want any discussion or criticism of their behavior.
Guess what, BobN? When you’ve used it to defend workplace sexual harassment and child molestation, “hater” or “homophobe” doesn’t work any more. People realize now that when gays and lesbians like you shriek that, it’s like Al Sharpton yelling “racist”.
Moreover, it’s hilarious, especially when your Obama Party gay and lesbian annexes are hosting meetings in which they are exhorting people to be “radically critical” of the institution of marriage, for you to even pretend that it is meaningful to you.
posted by Jorge on
Guess what, BobN? When you’ve used it to defend workplace sexual harassment and child molestation, “hater” or “homophobe” doesn’t work any more. People realize now that when gays and lesbians like you shriek that, it’s like Al Sharpton yelling “racist”.
Usually when Al Sharpton yells “racist” it’s not immediately followed by someone calling blacks n*****s. I’ll not fall into the trap of describing actual or imagined black stereotypes or statistics, thank you.