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John Mortimer

‘The California Supreme Court has just committed suicide’

SOUNDBITES — “As a practical matter the California Supreme Court has just committed suicide. In America an ‘independent judiciary’ is the only protection minorities have against majority tyranny, against violation or denial of their ‘fundamental’ civil rights. As a practical matter there is no longer any such thing as an ‘independent judiciary’ in California. From here on if the mob (statistically one of the most uneducated in America) does not like any Supreme Court decision that protects minority rights the tyrannous majority can eviscerate that ruling and enact it’s prejudice into law. The Supreme Court of California has just given religious bigots carte blanc to castrate the court and make a mockery of any notion of an independent judiciary which is now dead-in-the-water in California.” [Salon]

By:           editor editor
On:           May 27, 2009
Tagged: , , , ,
  • 21 Comments
    • Why?
      Why?

      This blurb is way off base–what the Court did was exercise restraint. I don’t agree with its ruling personally, but it probably was the right ruling under California law. The amendment process allows the people to alter the constitution with a simple majority vote. While it would never happen under the federal constitution or the constitutions of other states–which don’t provide for the same process–California’s Progressive Movement (ironic, huh?) assured Prop 8’s victory before the Court.

      Your lens must be different here, guys. This amendment process is what the people of California wanted many years ago and no one has changed it yet.

      May 27, 2009 at 10:45 am · @ReplyReply to this comment ·
    • AlanInSLC
      AlanInSLC

      The CA courts decision just puts the fight into the hands of the Federal courts now. Lets hope things get resolved on the federal level and get this damn issue to go away.

      May 27, 2009 at 10:54 am · @ReplyReply to this comment ·
    • badlydrawnbear
      badlydrawnbear

      People should really read the opinion, all the “Yes on 8″ crowd won was the right to the word “marriage” and that is it. The May 2008 ruling requiring same sex couples enjoy the equal protection under the law in the state of CA still stands.

      From the courts decision:

      “[T]he measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.”

      May 27, 2009 at 10:56 am · @ReplyReply to this comment ·
    • Why?
      Why?

      Exactly. And framing the question is key here. One can’t say that calling marriage something else fundamentally alters the nature/structure/etc. of the California Construction.

      I, of course, don’t buy the it should be called something else argument, but here it cuts differently.

      May 27, 2009 at 11:01 am · @ReplyReply to this comment ·
    • andy
      andy

      Well said SALON. The court is part of the checks and balances against both mob rule and the tyranny of the executive branch. This country is turning into a sham.

      May 27, 2009 at 11:07 am · @ReplyReply to this comment ·
    • Tarcash
      Tarcash

      @badlydrawnbear: Separate but equal is not equal.

      Its a mockery of the judicial system to allow a majority to trample the rights of a peaceful minority, regardless. They had an out, it was a revision to an existing clause. It should never have passed.

      May 27, 2009 at 11:15 am · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      The Salon quote is correct. Most of the comments along this thread, especially the first two, do not understand. This was also not judicial restaint since they made new law. The CA system in general is broken. This was true before this decision if one looked at the state’s budgetary process. You can argue that you agreed with the decision, but either way in this case the California court made new law, and that new law here upends fundamental rights.

      Here’s a link by Calitics, which follows law and politics in California:

      “David Dayen and Robert Cruickshank are trading off at Calitics where Robert notes:

      The decision is about as bad as it can get – the logic used to uphold Prop 8 is everything Ken Starr hoped it would be. Two key excerpts:

      Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases – that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

      And the clear embrace of the Starr Doctrine:

      Neither the language of the relevant constitutional provisions, nor our past cases, support the proposition that any of these rights is totally exempt from modification by a constitutional amendment adopted by a majority of the voters through the initiative process.

      To the CA Supreme Court, voters can do whatever the fuck they want to via the initiative process.

      CA is officially broken.

      Update Lucas: Also at Calitics, Brian Devine notes that the Supreme Court created new law with this ruling:

      Justice Werdegar, however, at least had the guts to call a spade a spade. She didn’t hide behind the majority’s false argument that California’s law on revision/amendment distinction has always supported the decision to uphold Prop 8. Instead, she wrote her own concurring opinion specifically to point out what the majority hides: that the California Supreme Court had to make new law in order to reach its result of upholding Prop 8:

      until today the court has gone only so far as to say that “a qualitative revision includes one that involves a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational powers of its branches.” (Legislature v. Eu, supra, at p. 509, italics added.) Today, the majority changes “includes” to “is,” thus foreclosing other possibilities.

      * * *

      The history of our California Constitution belies any suggestion that the drafters envisioned or would have approved a rule, such as that announced today, that affords governmental structure and organization more protection from casual amendment than civil liberties.”

      This is judicial activism. Today, the Supreme Court significantly narrowed the definition of what is a “revision” that has been California law since the 1894 case of Livermore v. Waite. They invented a new definition only because it would suit the result they wanted.”

      http://www.mydd.com/story/2009/5/26/13523/1552#commenttop

      The key element is that the claims of nothing to see here are b.s. It’s funny when it’s conservative- then it is judicial restraint. But, a liberal outcome is judicial activism. Activism is neither conservative or liberal.

      May 27, 2009 at 11:38 am · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      “Update Lucas: I’ll add commentary and statements on the flip as I get them, starting now with Speaker Pelosi and some early analysis from Calitics.

      Statement from Speaker Pelosi:

      “Today’s ruling by the Supreme Court in support of Proposition 8 is deeply disappointing because this ballot initiative takes away individual rights. “I have long fought for equality for all of California’s families and will strongly support efforts to restore marriage equality in California, so it can join the ranks of states such as Iowa and Vermont.”

      David Dayen and Robert Cruickshank are trading off at Calitics where Robert notes:

      The decision is about as bad as it can get – the logic used to uphold Prop 8 is everything Ken Starr hoped it would be. Two key excerpts:

      Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases – that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

      And the clear embrace of the Starr Doctrine:

      Neither the language of the relevant constitutional provisions, nor our past cases, support the proposition that any of these rights is totally exempt from modification by a constitutional amendment adopted by a majority of the voters through the initiative process.

      To the CA Supreme Court, voters can do whatever the fuck they want to via the initiative process.

      CA is officially broken.

      Update Lucas: Also at Calitics, Brian Devine notes that the Supreme Court created new law with this ruling:

      Justice Werdegar, however, at least had the guts to call a spade a spade. She didn’t hide behind the majority’s false argument that California’s law on revision/amendment distinction has always supported the decision to uphold Prop 8. Instead, she wrote her own concurring opinion specifically to point out what the majority hides: that the California Supreme Court had to make new law in order to reach its result of upholding Prop 8:

      until today the court has gone only so far as to say that “a qualitative revision includes one that involves a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational powers of its branches.” (Legislature v. Eu, supra, at p. 509, italics added.) Today, the majority changes “includes” to “is,” thus foreclosing other possibilities.

      * * *

      The history of our California Constitution belies any suggestion that the drafters envisioned or would have approved a rule, such as that announced today, that affords governmental structure and organization more protection from casual amendment than civil liberties.

      This is judicial activism. Today, the Supreme Court significantly narrowed the definition of what is a “revision” that has been California law since the 1894 case of Livermore v. Waite. They invented a new definition only because it would suit the result they wanted.”

      http://www.mydd.com/story/2009/5/26/13523/1552#commenttop

      May 27, 2009 at 11:41 am · @ReplyReply to this comment ·
    • Joe
      Joe

      carte blanc(he).

      May 27, 2009 at 11:54 am · @ReplyReply to this comment ·
    • badlydrawnbear
      badlydrawnbear

      @Tarcash I don’t disagree with you at all. I just wanted to point out that this is not the civil rights Armageddon that many seem to think it is. The ruling was very narrow and at the end of the day all the “Yes on 8″ crowd won a very very small victory that will be overturned in the near future, either through the federal courts or another voter initiative.

      May 27, 2009 at 12:21 pm · @ReplyReply to this comment ·
    • Jim
      Jim

      The court contradicted itself with this ruling. And history has show seperate but equal is a lie. If this were black vs white and the inter-racial folks got a whole new term instead of the same rights as everyone else would you still see this ruling as a victory? I don’t. We need to remember the six on election day.

      May 27, 2009 at 2:02 pm · @ReplyReply to this comment ·
    • Bruno
      Bruno

      While I agree with the poster *in theory*, I don’t think this amounts to all that in practice. The judiciary in California still has broad powers to interpret the constitution to protect minority rights. Though they can be “overruled” by the people, it’s unlikely to happen often, or hurt the judiciary in much of any way. The only ones at this stage who get hurt are us.

      May 27, 2009 at 2:10 pm · @ReplyReply to this comment ·
    • cymatic
      cymatic

      If the doctrine of “separate but equal” had been added to the US Constitution as an amendment the Supreme Court wouldn’t have been able to strike it down in Brown v. Board of Education. Yeah, it’s frustrating but don’t blame the court for following the law, try to change the law (and the idiotic initiative process which allows simple majorities to amend the CA constitution).

      May 27, 2009 at 2:33 pm · @ReplyReply to this comment ·
    • dgz
      dgz

      @cymatic: @Why?:
      exactly. the CSC is sworn to uphold the CA constitution, above all. and i personally think it would be a shame to vote them all out based on this opinion; they’ve already demonstrated their gay-friendliness and did their best to snatch a compromise when their hands were legally tied.

      and i also agree that ballot initiatives are ridiculous. btw, CA has changed its constitution 500 times! that’s an average of 4 times a year! there’s a REASON our national founders crafted a representative gov’t; i wouldn’t want some shmo with a GED conducting brain surgery, nor do i want him dictating public policy.

      May 27, 2009 at 3:31 pm · @ReplyReply to this comment ·
    • Jaroslaw
      Jaroslaw

      I may have missed something in all the legalese above, but just in case I didn’t, here’s my opinion:

      In the brouhaha about whether or not this is an amendment vs. revision, aren’t we overlooking the obvious? How can an amendment to the Constitution of California conflict with the far overarching I would think position of equality for all citizens?

      It would be one thing if the amendment stated something like ALL senior citizens over the age of 65 were entitled to “X” or all citizens under 21 cannot drink alcohol etc.

      But isn’t it a different beast to declare 12 months ago that marriage included everyone, but now the voters by the slimmest majority can invalidate the concept of equality? What is to stop them from taking away women’s right to vote, or from reinstating African slavery?

      May 27, 2009 at 4:09 pm · @ReplyReply to this comment ·
    • cymatic
      cymatic

      “How can an amendment to the Constitution of California conflict with the far overarching I would think position of equality for all citizens?”

      You’ll need to wade into some legalese to really understand how the court allowed this but basically, they said that because California affords all the same rights as marriage to same-sex couples (via domestic partnerships) Prop 8’s only effect is to restrict the label “marriage” for the exclusive use of same-sex couples. This is a “narrow and limited exception” to the larger guarantee of equality and thus the amendment is not a “revision”. The way they frame this in the ruling suggests that an initiative which repealed the domestic partnership law itself would be a revision and thus could not stand if challenged on the same procedural grounds that Prop 8 was.

      “What is to stop them from taking away women’s right to vote, or from reinstating African slavery?”

      The US Constitution for one. The problem here is that the California Constitution can be amended easily and because there’s no Federal guarantee of marriage equality it can’t be appealed to the US Supreme Court.

      May 27, 2009 at 4:53 pm · @ReplyReply to this comment ·
    • Attmay
      Attmay

      The state SC has just opened the door to making slavery or even murder legal in the state of Crackerfornia. If you can get a majority vote, that is.

      May 27, 2009 at 5:23 pm · @ReplyReply to this comment ·
    • Jersey
      Jersey

      Well I can’t wait to see who the mormons go after next.

      May 27, 2009 at 10:13 pm · @ReplyReply to this comment ·
    • threshold
      threshold

      The article pretty much hits the nail on the head. It’s a dog-eat-dog world in California now.

      Thankfully, it’s much, much, much, harder to amend the US Constitution and that’s where gay rights will ultimately be won.

      May 28, 2009 at 6:40 am · @ReplyReply to this comment ·
    • Jaroslaw
      Jaroslaw

      thanks Cymatic, you cleared that up. However, if anything does happen at the federal level that says something about marriage then all the folk who have civil unions henceforth will be out of luck. But hey, who said life was fair.

      May 28, 2009 at 8:07 am · @ReplyReply to this comment ·
    • Jaroslaw
      Jaroslaw

      Still, at least one Calif. Supreme said this puts minorities at risk of defending themselves at the ballot box so it might not be so crystal clear after all?

      May 28, 2009 at 8:08 am · @ReplyReply to this comment ·

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