Which of these precedents is more dangerous?
1: A majority vote being able to restrict the freedoms of a minority group.
2: The federal government overriding a majority vote to give those freedoms back.
I was reading somewhere that people wanted the federal government to intervene and try to legalize gay marriage nationwide. Regardless of how you stand on Prop 8, which of these precedents is potentially more harmful to our democracy?
Clearly #1 is more dangerous, because it is the only one contrary to our long history.
I just returned from a local demonstration, and as a featured speaker, I addressed exactly this topic. I spoke for about 15 minutes, but I will give readers the short version here.
Here we go.
In California, the legal filings before the Court are available to anyone on the California Supreme Court’s web page. Go there, you won;t have to hunt for the links to the files.
You will find the actual legal reasoning both for the In Re Marriage Cases from this summer, and the request for the stay of enforcement of Prop 8. By Monday at noon, the State Attorney General will be filing a response, and it will be available there too.
As for the decision this summer, the court found, that in California, sexual orientation is a pivot that people have been discriminated against in the past and present, and that it is not related to the issues that were at hand, and that is it both widespread and insidious enough to require special court attention.
Other similar matters are race, gender, national origin, age, religion, etc.
It is really hard to disagree that gays are discriminated against, both by the general public and by the law.
If you disagree with that, please stop reading until you come to your common sense.
OK, glad you are still with us 🙂
Once the Court identifies such a distinction, as is their right and obligation, and they have done many times before, then any laws that discriminate are subject to “strict scrutiny”.
That means the State must show compelling reason for the discrimination. That is possible of course – blind people may be part of such a group, yet the State could show compelling reason to not allow blind people to drive.
In this case, there are many laws that have been passed regarding domestic partnership over the past 10 years or so. By the legislative history, it is clear that the intent was to have something as close to marriage as possible without it actually being marriage.
That the laws do discriminate on the basis of sexual orientation, the Court found to be true. This is the case even if the laws are almost close to each other. Separate but equal is not equal – that is a well established principle of law.
The state was offered the opportunity to show a compelling reason for the discrimination, and the Court found that the reasoning was not sufficiently compelling to allow the laws to stand.
As a remedy, the Court ordered, as is its right and obligation under the separation of powers clauses of the State Constitution, as well as other checks and balance available to it, that the discriminatory aspects of marriage laws are null and void.
That is how the case was decided – from that point of view, it is hard to argue in legal terms, in fact I have never seen it debated in legal terms and I have looked. hard.
Emotional fallacies and religious claims, not based on rational thought or principles of justice, are what the anti-same sex marriage proponents fall back on, every single time.
OK, that is the case from the summer.
While all that was happening, Prop 8 was placed on the ballot, purportedly as an Amendment to the Constitution, containing the same exact language as the Family Code that was under consideration in the case mentioned above, and which was in fact invalidated before the initiative election could occur.
The reason for an Amendment was because, it was claimed, that it would be difficult if not impossible under California law for such an amendment to be subject to review by the Courts, or for a repeal to be passed by the Legislature.
So we married about 18,000 couples between the court’s ruling and the election, then we voted.
You know the results of the election.
The next day, there were 3 lawsuits filed in the same State Supreme Court, seeking an immediate stay, and then a hearing on the validity of the measure on the ballot.
All 3 made essentially the same argument: That under the Constitution, and during our long history, Courts have exercised their right and obligation to protect minorities from majorities, under our oldest and one of our most important rights: Equal Protection.
Equal Protection dates from at least the year 1215, from the original Magna Carta, and possibly earlier. You can read and confirm that on wikipedia and the sources it links to.
From the Magna Carta, the history of Equal Protection goes in a straight line to the US Constitution, and then to the California Constitution.
This is nothing new, and judges acting independently to assure equal protection for all is only wrong to Prop 8 proponents because it is not working out for them. Judges were not activists in the summer case, and they are not being asked to be activist now – simply to do what they have a long documented history of.
The substance of the case before the Court now is that Prop 8 was not an amendment but a revision. What are the differences? In common parlance, not much, but in legal parlance, a lot.
An amendment makes limited revisions to a specific matter. A revision changes fundamental underlying principles. Under the CA Constitution, amendments can be made by ballot initiative, but revisions must be passed by supermajority of both houses of the Legislature, and then passed by voter ballot.
So, the claim now before the Court is that Prop 8 is not an amendment but a revision.
Were Prop 8 to take effect, it would specifically take away the right and obligation of the Court to protect minorities under the Equal Protection clause, as it did this summer and many times since California has been a state. Not taken away in all cases of course, but in the case of marriage and sexual orientation.
This would be simply unprecedented. to cripple an independent judiciary in that way. It could happen, but that is clearly contrary to the existing and longstanding principles of our society. That means it can only be done by revision.
You asked about danger.
This is extremely dangerous, as I told the assembled crowd today. It means that no rights, no consistent way of organizing the government, no sense of permanent separation of powers or checks and balances could be relied on beyond the next election cycle. An initiative, to be voted on and passed by 50% +1 would be able to change anything anytime.
Our founding fathers recognized this possibility – they knew that these types of revisions to principles might be necessary some day, but that they should not be subject to the whims of the day, but rather subject to extremely careful and persuasive deliberations by the representatives of the people. You can read this in James Madison’s own words in the notes he kept during the Constitutional convention, it is available on line for free.
California adopted that principle as well for fundamental principle revisions of its Constitution.
It is the Court’s responsibility to see that through. Prop 8 proponents can pass a revision by starting in the Legislature if they so desire, but not by a mislabeled initiative, that is the basis of the suits filed this past week.
So far there has not been a response from the Respondents, in particular the State Attorney who represents the State in such matters. The Court has asked for that response to be filed by noon Monday.
I wait with baited breath to see what the argument will be. Other then claiming the precedents described are false or misinterpreted, I don’t see what else there could be. I am not a lawyer, so I might be missing something, but I have been researching legal academic professor blogs, and I have not been able to find anyone positing a possible defense either.
So we will see.
But this is all VERY dangerous stuff indeed.
As for making is a Federal issue, it will probably end up there some day, from some state. But for strategic reasons specific to each side, both sides are working hard to keep it at the state level for now. None of the arguments before the Court in any of the pending suits relies on Federal claims at all.
Until and unless US Constitutional issues are raised, then US Courts have no jurisdiction.
But once they are raised, there is jurisdiction, and they US Courts also have a long history of expanding marriage rights, not contracting them, regardless of popular opinion at the time.
It was only 1968 when the US Courts overturned ant-interracial state marriage laws. A few were undone right before that because the handwriting was on the wall. But well into the 1960s, 49 states had such laws on the books. The only exception, of course, was California, and that ruling was 40 years to the day of this summer’s rulings.
The arguments in favor of banning interracial marriages was essentially the same as we have now for same sex marriage religious fervor and the “ick factor” hiding a fundamental bigotry founded in a profound misunderstanding of our society’s core principles, some listed above and some not.
Today, you have to work really hard to find people who think any of that was a good idea, times have changed, as they always do. Keep in mind that this was so recently, that our President-elect’s parents could not have married each other in 49 states when they got married and when he was born.
Bottom line, what is dangerous is the lack of education regarding our basic principles of society that people even think for a second that a ballot issue is a better way to do anything best reserved to the Judicial branch.