A ruling from the California Supreme Court on the constitutional legality of Proposition 8 could come as soon as this week, according to court spokeswoman Lynn Holton. The ruling would be a response to three lawsuits filed immediately after Prop 8. passed one week ago today that argue that the ballot initiative process was followed improperly. The court overruled an earlier Proposition, Prop. 22 in May that defined marriage as between a man and a woman, but as the Washington Post reports this morning:
“Legal experts say this time the proposition would not be as easy to overturn. Unlike Proposition 22, which in 2000 created a statute that was trumped by the state constitution, Proposition 8 is part of the constitution.
In other words, whereas Proposition 22 was found to violate the equal protection clause of the state constitution, Proposition 8 is now part of the equal protection law of the constitution.“In passing Prop 8, the people of California basically put an asterisk next to the equal protection clause in the constitution,” said William Araiza, a professor at Loyola Law School in Los Angeles. Now, he said, “it fundamentally comes down to whether the court considers this a major change or not a major change.”
Specifically, opponents of Proposition 8 argue that this kind of change is a “revision,” not an “amendment.” The distinction is important, legal experts say, because revisions require two-thirds approval in the legislature and then a popular vote. Amendments can be approved by popular vote only.”
While legal experts feel that the likelihood of the Supreme Court overruling Prop 8. is slim to none, a growing chorus of California politicians are pushing for the court to invalidate the measure. Governor Schwarzenneger told CNN “I think that we will again maybe undo that, if the court is willing to do that, and then move forward from there and again lead in that area. More than one-third of the state legislature has signed a friend of the court brief arguing that “the gay marriage ban improperly usurped the state Supreme Court’s duty to protect minority groups from discrimination.”
The Campaign for California Families, a group that supported Prop. 8 is asking to be named as a party to the suit over concerns that the Attorney General will not properly represent the will of the voters.
ask ena
Can someone PLEASE PLEASE PLEASE explain to me how the definition of marriage as between a man and a woman is not a RELIGIOUS based definition, and does not follow separation of church and state? It seems so fundamental, yet it just keeps happening over and over. I really don’t understand how this definition, based on some religions and not others, is not a violation of the US Constitution.
Wolf
UGH C’mon Japhry. Quoting from The Washington Post is like quoting from The Drudge Report.
So I counter you with this from The San Francisco Enquirer
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/10/ED45141P46.DTL
ChristopherM
Wolf, I don’t know what your problem with the Washington Post is, but I can tell you that quote is accurate. There have only been three cases where California amendments have been challenged on the basis that they were actually revisions. Only 1 of the 3 were successful, and it set such a high standard for what will be considered a revision that it is going to be nearly impossible to meet. The con law professors I have talked to at my school think that the legal argument of the No on 8 people is sound, but if the court follows precedent on the issue of revision, there is little chance of a win.
Still, precedent can be overturned, and frankly it is beyond me how the court could call something a fundamental right and then allow it to be put up for a vote. Here’s hoping.
mama
Actually Wolf, traditionally the Chronicle is more conservative than the Post
Wolf
@ChristopherM:
Well for one The Wash Post leans very much to the Right with its stories and Spin.
Now about the Prop 8 suits filed lets bring it down to basics.
The lawsuits claim that since the California Supreme Court already declared that gays and lesbians were a “suspect class†who were being discriminated against and denied a “fundamental rightâ€, that Prop. 8 goes beyond amending the California constitution; they claim that Prop. 8 completely violates the “constitution’s core commitment to equality for everyone be eliminating a fundamental right form just one group – lesbian and gay Californians.†In other words, the suits claim that since marriage is a fundamental right in the California constitution, Prop. 8 can’t come along and take away that right from one group.
The lawsuit’s second claim is that not only does the lawsuit interfere with the role of the constitution, it interferes with the job of the Supreme Court to protect “suspect classes†from discrimination and deprivation of their “fundamental rights.†In other words, Prop. 8 isn’t changing a law or amending the constitution, it’s telling the California Supreme Court interpret the constitution. It was decided back in the olden days that the Supreme Court is the only entity that can interpret the constitution into law and nobody can tell the Court how to interpret it. Or more simply, it’s illegal to pass a law that tells the Supreme Court how to do it’s job.
Finally, the lawsuit makes what’s known as a “procedural argument.†The suit claims that since Prop. 8 goes so far that in altering the California constitution and the role of the Supreme Court, that it actually changes the structure of the state government. They say that a ballot prop cannot wield that much power and that a same-sex marriage ban needed to first through go through the state legislature.
So basically if the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw – it removes a protected constitutional right – here, the right to marry – not from all Californians, but just from one group of us. That’s too big a change in the principles of the CA constitution to be made just by a bare majority of voters.
So IMo there is a good chance it will be overturned.
Wolf
@mama:
They’re both pretty Right leaning. Tony Blankly was a part of The Washington Post but thats neither hear or there.
mark
If CA wants to single out ONE group as not being protected by the equal protection clause the COURT must define WHY this group can be singled out. If the catagory of gays/lesbians are to be defined as LESS THAN other Californians, then they should also be asked to contribute LESS to California economy via taxes. Any thing less isn’t FAIR.
mark
The CA Supreme Court must also explain what other group, (by referendum) could have their State status REDUCED by intiative…seems a slippery slope, that queers just got shoved down for a test ride.
What would stop next election to decicide Scientologists can’t marry outside their faith?
ChristopherM
@Wolf:
I agree with you, Wolf, but again, the Post is right that many if not most legal scholars are not giving that argument much of a chance based on the Cali Supremes’ precedent. It is a long-shot, though certainly one worth taking.
mark
The CA Supreme Court should also decide could equal funding for girl’s athletics be denied by initiative, could people with disability act be revised and lessened by intiative?
ask ena
All I know is if you read the comments to the SF Chronicle article, there sure are a lot of dumb@sses reading it.
So much ignorance and misguided hate.There is a major cultural war going on.
As a side note, let us not forget that being returned our right to marry (in CA) is like a pipedream to our brothers and sisters in the states where they have no protection over job and housing discrimination.
Can you imagine The Apprentice-Alabama: “You’re fired faggot!”
mark
The initiative CA needs, or State law passed by the legislators is as follows.
NO minority’s Human Rights can be diminished by an intiative of less than a 75% vote of the electorate, and then needs to be ratified by 3/4ths of the State’s precincts.
This would be much more in keeping with altering a Constituton, than a mere plurality of 50% plus 1.
Founders of America meant it to be DIFFICULT to amend their Constitution, so it wasn’t amended with mpomentary frivolous issues, or the fickleness of the electorate on any given day.
mark
momentary…typo
mark
Could a CA intiative alter tribal laws governing Native Americans right to move freely off a reservation?
Could Japanese Internment Camps be re-started up by another initiative.
These are questions CA courts and Voters should seriously ponder.
The Gay Numbers
@Wolf: This case should be a slam dunk but for the fact it is about gays. When people say that this is a case that we will lose- it’s about the politics, not the arguments being made. I think this court will come to regret their game of ignoring their own Constitutional structure if they choose to rule in favor of Prop 8.
The Gay Numbers
@ChristopherM: This is case of first impression. When you say many or most- please cite some examples. There have not been many , if any , cases like this in CA. That’s part of the problem. If this were a slamdunk against overturning, and the case law was so clear on the precedent- they should be able to cite real case law. So far, what I have seen has not been case law. Just politics. They are right if you have a political solution in search of a precedent then the court can and will just make stuf up, but this will affect more areas than just this. essentially whatever the court does with the Constitution will now be subject to bare majority action. That’s a very real issue.
Tim
The CA Supremes could rule, due to the equality clause, that since same-sex marriage is illegal, then opposite-sex marriage, too, is illegal.
That would put the whole damn question right on the front burner wouldn’t it.
ChristopherM
@The Gay Numbers:
It is not a case of first impression. Raven v. Deukmejian in 1990 was the first case of a successful challenge to a ballot proposition holding itself out as an amendment but which was in fact a revision. The bar was set so high in that case, most scholars, including my con law professors (even the gay one) think it will be exceedingly hard to meet. There were two previous cases in California that threw out challenges to propositions based on the argument that they were revisions.
I have yet to see a legal analyst on television or online argue that this is anything more than a long-shot. I hate it, and I agree with you, but the procedural argument that is being made is a tough one based on the cases above. Here is an analysis of the argument that I personally believe is a bit more gloom and doom than it need be, but is an excellent (and sad) analysis nonetheless: http://volokh.com/posts/1225923130.shtml
The Gay Numbers
@ChristopherM: Read the rest of what the Washington Post says.
” Legal experts say it is hard to predict how the California Supreme Court will view the proposition because there is little case law to guide it. Judges coming up for reelection may balk at going against voters, and the initiative is unlike anything it has dealt with.”
Here is the link: http://www.washingtonpost.com/wp-dyn/content/article/2008/11/10/AR2008111002874.html
I can pull up the links from the LA Times and few other sources if you persist in making your argument.
You are probably right. They probably will uphold Prop 8. But it will not be because of case law. It will be because of cowardice, and, more importantly, it will something of which history (like with Plessy v. Ferguson) will judge the courts poorly.
The Gay Numbers
@ChristopherM: By the way, Volokh is a conservative with an agenda. Just like Andrew Sullivan and several other legal bloggers are. Citing him is a bit retarded. He does not like the equal protection analysis in the first place. This is why the voters of CA are idiots. They do not get for conservatives this is as always a wider game. That game is to turn equal protection analysis on its head.
Here’s what the CA Legislative friend of the court said:
“An underlying purpose of the constitution is to protect the basic rights of minorities from the majority,” said Senate President pro Tem Don Perata. “The drafters of proposition 8 turned this principle on its head and for the first time in our state history facilitated the writing of discrimination into the constitution. This is a radical and dangerous precedent to set.”
Adding:
“”The citizens of California rely on the Legislature and the courts to safeguard against unlawful discrimination by temporary, and often short-lived, majorities,” said the legislators. “Our state’s few deviations from this duty have proven, with the perspective of historical distance, to be the most abhorrent chapters in our State’s history… The Legislative Amici urge this Court to prevent the momentary passions of a bare majority from compromising the enduring constitutional promise of equal protection under the law. Proposition 8’s radical change to our constitutional protections cannot be considered a mere ‘amendment.’ The California Constitution — ‘the ultimate expression of the People’s will’ — requires the involvement of the Legislature in a constitutional revision of this magnitude.”
I put these out of order. I want to finish with a point. If the court here decides that bare majorities are okay, then in 2 years people by the same majority could decide to say it is equal, and 2 years after that decide it is unequal, and so and so forth. There would be no continuity in the law.
If you think this impossible. Consider that the right has already placed on the ballot twice now efforts at parental notification in abortion cases. T
Our side is not going to give up. Neither is theirs. The function of the court here is thus subverted.
Citing him only reinforces my point. An objective view is that this is a case of first impression as per the link and quote I provided you.
ChristopherM
@The Gay Numbers:
I want to note again, it is not my argument. It is the argument of the majority of folks I have been reading and speaking with, made as a purely predictive effort on what the Court will do. I hope they’re wrong. I disagree with the argument because I ultimately believe that this is a change to the foundation of the state’s equal protection clause rather than an addition to it. The WaPo was trying to find legal arguments on both sides, and they are right that it is unpredictable, but just on what I’ve been searching out, I would say that it is a severely uphill climb for us. I deeply hope that those folks are wrong and will be eating crow soon.
ChristopherM
@The Gay Numbers:
Volokh definitely is a conservative, but I agree that a bar was set by the court on the procedural issue. I happen to disagree with him, and think that this meets that bar by making the EPC a nullity when it can be overruled by a bare majority. Here’s hoping that we prevail.
The Gay Numbers
@ChristopherM: I do not think that this is a matter of legal experts on both sides. There can no expertise where there is new law involved. That’s why I keep saying these people are hedging their bets given the politics involved rather than speaking plainly. If this were some no hot button issue case they would have to admit that this is a first impression, and there is no clea way to know which way the court will go. The question before the court is there a floor through which the majority can go through in terms of constitutional rights? That’s not something they have really addressed.
JJ
What does it take to repeal prop 8? 2/3 approval of the state senate and house, then another popular vote (2/3 majority)?
The Gay Numbers
@JJ: If the CA S.Ct. let’s Prop 8 stand, then it can be overturned with a new prop in 2010. Not sure if there is time or whether there are ballot efforts in 2009. There is already a movement on the way to overturn it through the courage campaign.
The Gay Numbers
@JJ: @JJ: That means that one would just need a majority. Only revisions require something more than a majority.
s.b
@Wolf:
The California Supreme Court indeed already declared that gays and lesbians were a “suspect class”, but that was because it thought that “a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”
To my knowlege there is no scientific evidence that a person’s sexual orientation is an integral an aspect of one’s identity, and therefore the opinion that gays are a “suspect class” is a load of crap.
Matt
From a rational and logical standpoint, the result of this should be obvious. There is so much basis for it to be overturned, and so little for it to not be… however, justices are not immune to hate or fear of backlash, and in they end, they have the ultimate power. Allowing prop 8 to pass completely invalidates the ruling they just made, as Proposition 8 is identical in wording. The arguments against it are identical to those against Prop 22.
I also find it laughable that the onlt organization attempting to step up and defend Prop 8 is a religious one… again proving this is a case of separation of church and state. I’d like to see their case for Prop 8, I’m sure educated people would find it hilarious.
JJ
@The Gay Numbers: Thanks for the clarification. As someone who grew up in South the 60’s and 70’s, this gives me great hope. As I interact with neices and nephews who are 20+ years younger than I and much more enlightened than those I grew up with, I believe that it is just a matter of time until we win.
The fact that we have a republican governor in CA who was quite eloquent in his support and a knee-jerk “what happened” response in Cali, or world is changing in a big way.
If the CA Supreme Court doesn’t rule in our favor, we know how to fight this. Fighting the mormon’s to neuter thier spending is one key, developing an effective minority based outreach is a critical area we will need to improve.
It is disgusting that we lost, but we will win.
The Gay Numbers
@s.b: The key element in what you wrote is your knowlege. Let me help you with your position by analogy. To my knowledge, there is no proof that the earth is round. To my k nowledge, the earth is flat.
Your argument only works if one ignores both the evidence coming in from the hart sciences in the areas of biology and genetics, and the soft sciences, in the areas of pscyhology , sociology, etc.
If you feel the need to respond, please do not do so by just focusing on the soft sciences. Speak also of how your knowlege can explain the fact that homosexuality appears in several hundre species in nature?
You also by the way miss the point. Suspect classes are not based on what your knowledge is. It is based on a test of can we define the class- the answer is clearly with gays yes.
The Gay Numbers
@JJ: @JJ: I have a problem with us winning by popular vote. Mainly that’s not our system of government, and it has not been our system of government since its founding that popular will sets the rights of the minority. Its a dangerous position. Conservatives, not just Christian ones, love this because it fits with their goals of limiting the judiciary in such a way as to neuter the courts traditional role of limiting mob rule. Conservatives love mob rule because it retards progress and reinforces the power of the elites. This is why the founders set up this system. Although CA system is not exactly like the federal- the principles are still there. This is, as I said, greater than gay marriage or even us gays.
Pragmatist
From a strictly legal standpoint, I believe the case against Proposition 8 is very sound. Granted, we don’t have a lot of precedents to delineate a revision from an amendment. But one must remember that Proposition 8 selectively stripped a “fundamental right” from a “suspect classification” of people. In the realm of constitutional doctrine, that makes Proposition 8 quite a powerful change!
The merits of this case are, I’m afraid, greatly obscured by two facts: (1) gay rights are involved; (2) the environment is highly politically charged because we just had a contentious election.
To view the issue more clearly, I think it helps to make a substitution. Let’s pretend, for example, that Proposition KKK said: “Only a ballot cast by a person of European descent shall be valid or recognized in California.” In constitutional terms, there would be almost nothing to distinguish Proposition KKK from Proposition 8. In both cases, a fundamental right (either the right to marry or the right to vote) has been stripped from a suspect classification of people (either sexual orientation or race/ethnicity). If proposition KKK had passed in the same manner as Proposition 8, I have absolutely _ZERO_ doubt that the state Supreme Court would swiftly invalidate it as an improperly enacted revision. (Of course, one must disregard the federal constitutional issues implicated by this analysis — a real litigant wouldn’t need to bother with state court at all, since Proposition KKK also violates the U.S. Constitution.)
When you abstract away the inflammatory character of the present dispute (i.e., the fact that gays are involved), it becomes pretty clear that Proposition 8 represents a sweeping incursion into the bedrock rights guaranteed to all citizens under California’s equal protection and fundamental rights jurisprudence.
With all of this said, do I think the Supreme Court will actually reach the logical and obvious result? No. I think the Court probably feels somewhat rebuked by voters after it arguably overstepped its political bounds in May. I would be very surprised if a majority of the court’s justices found gay rights to be so important that they’d compromise the court’s political capital just to fight for them. (Remember that California’s Supreme Court justices don’t have life tenure the way federal judges do — they’re subject to retention elections.)
What I actually expect to see is that the court will sidestep Proposition 8’s massive constitutional problems by dismissing the lawsuits on some innocuous procedural grounds. The fact that a decision is coming “soon” suggests I am right — regardless of which way the court rules, it would take a long time to craft an opinion that actually delved into the merits of the dispute.
sparkle obama
stop scapegoating!
http://www.jackandjillpolitics.com/2008/11/stop-scapegoating-black-folk-on-proposition-8-updated/#more-4586
Zebostoneleigh
Proposition KKK is not analogous with Proposition 8. The former (as described) specifically limits the rights of a group of people. The latter defines a specific transaction in specific terms (terms which do not limit any member of society from choosing to be engaged in such a contract).
Gay or straight – you still have the right to be in a dual gender, meaningful, comitted relationship – a type of relationship the state now offically calls “marriage.”
Gay or striaght – you still have the right to be in a same-sex meaningful, comitted relationship – a type of relationship the state now officially calls “domestic partnership.”
Prop 8 does nothing to limit your choices or options. Gay and straight people currently have equal rights. And just like a straight person might never opt for a domestic partnership, a gay personal would likely never opt for a marriage… but that doesn’t change the fact that they all have the rights to do so.
Proposition 88 (the non-existent Proposition which would be equal in substance to Proposition KKK) would be “Only unions between straight persons shall be valid or recognized in California.” This is a proposition that discriminates. This is a proposition that is representative of poor government. This is a proposition you can count on me to support whole heartedly. This is also a proposition that will never happen (thankfully!).
And such a proposition is NOT what Prop 8 is. Prop 8 simply specifies a specific definition for a specific type of union. Previous court rulings and civil code ensure that there is no substantive difference between the rights of straight or gay members of the California citizenry.
Using Proposition KKK an example of poor logical thinking. It also claims to show a relationship that doesn’t exist.
The Gay Numbers
@Zebostoneleigh: I have seen less contortions from a Circe Du Soliel event.
HYHYBT
“This is a proposition you can count on me to support whole heartedly. This is also a proposition that will never happen (thankfully!).”
You would support this “Propositon 88”, but are thankful it will never happen?
Zebostoneleigh
Yikes,
I wrote, “This is a proposition you can count on me to support whole heartedly.”
Not that you’ll believe me, but I meant to write, “Against this proposition, you can count on my wholehearted support.”
Pragmatist
@Zebostoneleigh:
Hi, Zebostoneleigh.
Actually, the hypothetical proposition KKK is very closely analogous in the context of existing California constitutional jurisprudence. I don’t mean to deny that your argument has some logical basis — it does. However, the basis of your argument has already been rejected entirely by the Supreme Court, and therefore it is not relevant to a discussion of a current California constitutional issue.
Your argument proposes (slyly) that a rule is nondiscriminatory so long as it does not name out the class of people against whom it discriminates. In this case, your line of reasoning holds that Prop 8 has nothing to do with gay people because it doesn’t say anything about sexual orientation — so it handles only the prosaic issue of how to define the word “marriage.”
That type of formalistic argument is not new, and it’s one that courts have not found very interesting for decades now. Courts have made it quite clear that a facially neutral law can be discriminatory if, in the real world, it winds up having a disparate impact upon different classes of people. Moreso if the facially neutral law was actually written with the clever intent of targeting unnamed victims.
Prop 8, of course, can only be considered “neutral” at a very superficial level (and even there I think it’s a bit of a stretch). In reality, we all know that Prop 8 was written, advocated, and ultimately passed with the intention of eliminating a recently recognized right of gays, lesbians, and bisexuals. That’s exactly what Prop 8 does: as you acknowledge, few straight same-sex “couples” have any need for same-sex marriage. Realistically, the only people affected by Prop 8 are those people who wanted to marry a person of the same sex — i.e. gays, lesbians and bisexuals.
Your argument actually harks back to the techniques that were used (unsuccessfully) to disenfranchise blacks in the postslavery era. We’ve all heard of Jim Crow laws, property ownership requirements, grandfather clauses, and the like. All of these laws were premised on the idea that if a law doesn’t explicitly mention race or a racial group, it can’t be discriminatory. Unfortunately for the proponents of these laws, legal realism gained popularity in the courts, and courts were willing to look through such laws for what they were.
In the Marriage Cases, the California Supreme Court made it very clear that Prop 22 (worded identically to Prop 8) was not a neutral law. Rather, the court held that it: (1) selectively targeted gays/lesbians/bisexuals, a protected class; and (2) sought to deprive them of a fundamental right guaranteed by the Constitution.
You argued that under Prop 8, “Gay or straight – you still have the right to be in a dual gender, meaningful, comitted relationship” and that “Gay or striaght – you still have the right to be in a same-sex meaningful, comitted relationship – a type of relationship the state now officially calls “domestic partnership.”
How clever of Prop 8 to offer sunrises for the blind and symphonies for the deaf! Realistically, we all know (and the Supreme Court told us that it knew, in May) that the right to have a cross-sex marriage is meaningful for heterosexuals, but not for homosexuals. Likewise, the right to have a same-sex civil union is meaningful for homosexuals, but not for heterosexuals. Setting aside the fact that “separate but equal” arrangements have been rejected for more than a half century, in this case marriages and civil unions aren’t even equal! A whole host of benefits attach to marriages that don’t attach to civil unions.
In sum, the arguments you’re advancing are weaselly and I think you know it. Don’t get me wrong: you’re allowed to hold the belief that same-sex marriage should be banned. You’re even allowed to advocate that belief on a GLBT community blog! Just grow a pair and be willing to defend your beliefs as they are — instead of hiding behind antique and unpersuasive rhetorical gimmicks like the above.
Zebostoneleigh
Thank you. Thank you. Thank you. Pragmatist, you’ve done what so few have done in the last few weeks – you actually stepped above the “you’re an idiot and a bigot” line and actually addressed some of the “real” issues inherent in this debate (if it were a debate – which so seldom is it).
I’m not talking into a brick wall – and there’s actually someone out there giving this serious thought. Thank you! And frankly, thank you for taking the time to write so much (and especially for recognizing the logic of my comments). Most people – I’ve tried to explain that theory elsewhere just say I’m being completely il-logical.
So now that we’re where we are… Maybe you can address several items I’ve wondered about (and which you apparently have some insight worth sharing). Here’s hoping…
1) How is it that marriage is a right? This simple basis of so much of the “no” speak has escaped me and until I see it as a “right” I’m lost understanding the arguments that Prop 8 or Prop 22 eliminates a right. I’ve read the US constitution (but admittedly not the CA). I claim no expertise in legal maters, but I’ve seen and understand the wording that relates to so called “freedom of speech” and “freedome of religion” and the “right to a trial” and such things – but I’m lost understanding the constitutional basis for a claim to a “right to marry.” And then, assuming there is a “right to marry” – how/where is there an even grander “right” to marry whomever you want (given so many restrictions already in place regarding just that issue: who you can legally marry)?
2) Isn’t the concept of marriage the ultimate expression of “separate but equal?” I mean, assuming you consider marriage a committed union between two people in a relationship of complete fidelity… If it weren’t for “separate” in marriage, there would be no difference between sleeping with my wife, your wife, or some random wife I meet on vacation. The whole idea of marriage is separation – to form a discrete union as a basic for a unique togetherness (which – frankly – may or may not be “equal” to others… e.g. “keeping up with the Joneses”).
3) As I’ve understood it, the “separate but equal” aspects of law that were struck down in past decades were struck down for the lack of “equal” and not for the “separate.” So, it’s not “separate but equal” that fails to meet the constitutional standard, but rather “separate but un-equal” is what fails the test of constitutionality. How is it that calling different types of unions by different names is inherently a matter of in-equality? Or is it? Maybe I’m missing the point?
Pragmatist
@Zebostoneleigh:
Hi, Zebostoneleigh.
Here are my thoughts on your questions:
(1) As a purely factual, practical matter, marriage is a “fundamental right” in California because the state Supreme Court said it was. I don’t mean to be facetious; I’m just stating a fact. Whether the Court overstepped its bounds in declaring marriage to be a constitutional right is a subject for open debate. But no one can deny that marriage was, prior to Prop 8, a legally recognized constitutional right.
You said you don’t understand where the right to marriage arises in the Constitution, since you can’t find any language about “marriage” in that document. That’s a fair point, and it stirs up a huge and longstanding debate in the legal community about the extent to which courts should (or should not) limit themselves to the literal text of a constitution.
Intuitively, I know it seems simple: if the constitution says X, do X; if it doesn’t say X, don’t do X. At least, that’s the argument advanced by self-styled “textualists” such as Antonin Scalia. The problem with that philosophy is that it tends to make sense only in the abstract; once you try to apply a constitutional provision to a real-world issue, you often realize that the constitution is so vague that it’s impossible to find guidance in its text alone. (This problem is really inescapable, and therefore I could show you numerous examples where even Mr. Scalia just pulls constitutional law out of thin air to reach his decisions.)
So, against that backdrop, the courts have basically invented a category of rights called “fundamental rights.” These arise under the Due Process clause of the constitution, but you’ll not find them mentioned anywhere in the text of the clause itself. These rights have included such things as the right to bear children, the right to marry, the right to one’s privacy, the right to bodily mobility, etc. In each of these cases, were the government to impose a restriction upon the right in question, the restriction would be presumptively unconstitutional unless a very compelling reason could be shown to justify it. That makes intuitive sense to most people — I think most people have an inborn sense that it would just be too invasive for the government to tell them how many times a day they could urinate, for example. Even though the Constitution doesn’t specifically mention excretion.
So, anyway, as I said, the California Supreme Court declared in May that same-sex marriage is not only a constitutional right, but a “fundamental” one, meaning that any law that infringes on it (either explicitly or by its effect) is subject to a very skeptical level of scrutiny by the courts.
You’ve hinted at a slippery slope argument: if marrying one’s same-sex sweetheart is a constitutional right, then does that mean it’s one’s constitutional right to marry anyone — or even multiple anyones? The answer, unsettlingly, is: “Today, no. Tomorrow, maybe.” Just has society has gradually changed its perception of what people should be allowed to do in their lives, the courts have gradually adjusted the scope of rights they’re willing to “find” in the Constitution. Sometimes we think the courts are behind the times; other times we think the courts are ahead of the times. I can’t tell you what the “proper” level of involvement the courts should have in shaping society — but I can tell you that the United States has a long history of such involvement. Many of the specific civil rights we take for granted today were effectively thrust on society at a time when the people who controlled the democratic process didn’t want to grant those rights. In many cases, we feel that the courts were right to take the paternalistic approach: for example, there’s almost universal agreement that Brown v. Board of Education was the right thing to do at the time. But sometimes the courts pick the wrong issue to push. For example, when the Supreme Court legalized abortion in 1973 (by declaring it a fundamental right), it did little to make society more accepting of abortions. To the contrary, it proved a very divisive move, and it fueled intense controversy that lasts to this day.
So, could the Supreme Court one day declare that it’s a fundamental right to marry one’s sibling, or to have a triangle marriage? Sure! But I don’t think you’re going to be seeing that anytime in our lifetimes. At the end of the day, even judges who are very progressive must live in their contemporary society. They, like all of us, have an intuitive sense of what kinds of changes are realistic and what kinds of changes would be revolutionary. Courts will rarely push for revolutionary change because in doing so, they risk sparking a democratic uprising that could undermine their power in the long run. They’ve got a sense of institutional self-preservation and would not want to see that happen. (Which is why I think Proposition 8 will not be overturned, even though I believe it was a revision enacted impermissibly under the amendment procedure.)
(2 & 3) What I meant about “separate but equal” is that our judicial system long ago rejected the notion that it is constitutionally permissible to discriminate on the basis of some protected classification so long as you’re providing “equal” accommodations to all parties. The famous quote from the Brown v. Board of Education court is that “separate can never be equal.” (As it happens, the court went out of its way in Brown to observe that the two Topeka school systems were equal in every respect — equal funding, equal resources, etc.) For this reason, I think any argument that says “civil unions are just as good as marriages” sits on very wobbly ground — it doesn’t matter if they’re just as good. The question is, does the legal scheme segregate on the basis of a suspect classification? (Yes.)
As a practical matter, civil unions are NOT equal to marriages. They offer many of the same advantages within California’s borders. But, importantly, they don’t trigger any recognition outside of California. For example: when the DOMA is repealed at the federal level, we will find that heterosexual married couples are able to enjoy federal tax advantages that homosexual civil union members cannot enjoy.
Zebostoneleigh
Thank you for all of that. I hope you’ve shared that knowledge elsewhere – as you put things in very clear terms (without weighing it too heavily in your bias).
I also appreciate your (apparently) honest appraisal of the history/future possibilities of these and other issues. Frankly, if more people understood what you’ve put in one short post – we’d all likely be in a better spot.
Thanks for your time and willingness to enter a civil back-n-forth on this matter.
Rod
@ask ena:
No where in any government document does the phrase “seperation of church and state” exist. It doesnt exist. Its a phrase that is over used and needs to be removed from peoples vocabulary’s
Pragmatist
@Zebostoneleigh:
Thanks for the compliment, and you’re very welcome!
A note: although it’s true that I try to be as objective as possible about controversial issues, I think you’re giving me too much credit for even-handedness here. The truth is, I feel very conflicted about the position courts occupy in our democratic progress. On one hand, I strongly support gay rights, racial equality, and other leftish values — so I tend to be pleased when a court enshrines one of those values into law.
But on the other hand, as a matter of principle, I tend to think that our judiciary has usurped too much legislative power. I believe such an unchecked exercise of power can be pretty dangerous for society. In fact, I believe it poses just as much threat to my liberal preferences as it does to other people’s conservative preferences!
There tends to be a pretty clear split between the right and the left in terms of how each side views so-called “judicial activism.” Generally, we leftists are supposed to support a powerful judiciary because the judiciary has so often ruled in our favor. But I think that’s naive; if a freewheeling court has the power today to rule in my favor, then nothing prevents it from ruling against me tomorrow. And I could cite plenty of examples of situations where the United States Supreme Court has employed “judicial activism” (and yes! even Antonin Scalia himself is guilty of it!) to aggrandize the power of the government and ultimately foist a conservative policy.
But as I said previously, we enjoy many rights today that we might not otherwise enjoy had the courts not forced them upon us. I think our country is better off, for example, because the Supreme Court eliminated segregation. However, I also think that Roe v. Wade was a disaster and a national tragedy — and in all honesty, I cannot tell you that there’s much jurisprudential difference between Roe v. Wade and Brown v. Board of Education. There just isn’t; both courts pulled law out of thin air because they just felt like it was the right time for it to happen.
At the end of the day, whether you think courts should or should not have ventured so far down this road, I think you have to be practical about it and just acknowledge that it’s a fait accompli. We can’t scrap 200 years of jurisprudence and replace it with nothing; that’s just not realistic. So the best we can hope for, I think, is to demand that courts behave in a principled and consistent fashion. That way, we’ll at least have stability and predictability, which are pretty useful features in any system of rules.
As for gay rights, I believe that the courts have already written up enough precedents in other areas (such as in miscegenation), that it’s almost embarrassing to try to rule against gay rights while attempting to reconcile it with the existing precedents. For example, when you read the cases that made it illegal to prohibit interracial marriages, it’s almost immediately obvious that the same rationale applies equally to same-sex marriage.
At the same time, I know there is a strong popular perception — not entirely inaccurate — that courts are foisting gay rights on society against the will of voters. How will that perception affect gay rights? I don’t know. I’m concerned that if we keep pushing for the courts to give us rights, and if we get what we ask for, we’ll just provoke a damaging backlash in the long run. Only time will tell!
Zebostoneleigh
Oh, I assumed you had a bias, but I commend you on your willingness (a willingness which seems on the verge of extinction) to admit the reality of a legal conflict based in tradition and history, as well as legitimate ways in which judicial interpretations could be appropriate even if in complete opposition to your preference.
You obviously see the conflict and support a specific outcome, whereas most people (at least the vocal ones – frankly, on both sides) seem completely blind to the possibility that the other side might have stable grounds won which to base their hope and expectations (grounds not necessarily founded in emotional misperceptions of the opposition, but actually founded in personal views on the purpose, value, history, trends, and overall experience of society and government).
And frankly, I like the specifics you lend to the discussion. Yes, I give you credit. Yes, I realize I may overly praise you. But really – who doesn’t need a little more praise these days (especially from a complete stranger on a queerty board on the internet in this post-election atmosphere of anything-but-praise)?
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I thought the hearing wasn’t scheduled hearing in March 2009? What do they mean this week?