Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Thursday, March 05, 2009

Prop 8 Goes Before the Court

The California Supreme Court heard oral arguments this morning regarding the legality of Proposition 8 and the status of the 18,000 same-sex marriages now in question. The arguments apparently went mostly as expected, which means there is some good news and some bad news.

If the LA Times' summary of today's oral arguments regarding Proposition 8 is any guide, it appears the court is inclined to uphold the 18,000 existing marriages already registered. For example, Justice Carol Corrigan, who voted against giving gay marriage rights originally, nevertheless asked pointedly why gay couples should not be, "entitled, if nothing else as a matter of equity, to rely on the law as it existed at the time they married?"

However it also appears likely that the court will not overturn the proposition. For example, Justice George, who wrote the original opinion recognizing the right to gay marriage, said that the court was acting today under a, "different constitution," and he asked whether the real problem was not simply that the California State Constitution was too easy to amend--something he implied was out of his hands. We shall see. They have 90 days to issue their ruling.


Raised By Republicans said...

Justice George may have a point about the California constitution being too easy to amend...but he's still a bigot in my book.

I will be very disappointed in my long time home state if they fail (again) to do the right thing here.

The Law Talking Guy said...

Justice George is the one who authored the opinion legalizing gay marriage; he is no bigot.

The questions presented are legal and constitutional, and they do take place in the context of a "new constitution," as Justice George said.

I understand that conventional wisdom is that the California SC will uphold prop 8 and the 18,000 gay marriages which they themselves authorized in the period before Prop 8 passed.

I was unable to listen to more than about 10 minutes of the argument. What I saw as a court wrestling with the issues. Perhaps they will find that the federal constitution is not the only thing protecting Californians from every kind of nasty racial, religious, ethnic, and gender discrimination by a simple majority vote.

Pombat said...

Oh grief, I hope they make the right decision on all counts. Fingers, toes, and even hair crossed here (well, it's messy, so at least some of it is crossed).

And hugs for any nervous people who need them!

Dr. Strangelove said...

What? Chief Justice George is about as far from a bigot as you can get! The 72-year-old Republican wrote the opinion that recognized gay marriage in the first place! (I said that in the initial post, by the way.)

Anonymous said...

It shouldn't have gotten this far...there should never be one group of people making that kind of a judgment on another group of people...America as I knew it, is dead.

The Law Talking Guy said...

Given the history of the country with slavery, segregation, internment of Japanese, genocide of the Indians, America as we have often known it is very much alive in Prop 8. But I applaud Anonymous for measuring America against its ideals and not against its history.

Raised By Republicans said...

Sorry, Dr. S, I took your post to indicate that George was working up to hold up prop 8.

Raised By Republicans said...

By the way...Anonymous...I think you're outed. We know who you are...James Madison.

Dr. Strangelove said...

Sadly, Anonymous, I believe LTG is correct: things like Prop 8 are all too consistent with this country's darker moments. But the resistance to Prop 8, and the original court cases that recognized gay marriages, are examples of this country's brighter moments. While we bemoan the 52% who voted YES, I am humbled and honored by the 48% who voted NO. A generation ago, that would have been unthinkable.

Regardless of the court's decision, let's work to restore marriage rights to everyone in 2010. Let's also pass a measure to make it harder to eliminate fundamental rights from the California State Constitution.

Pombat said...

Bugger it. I read somewhere that the number of atheists/non-christians in the US will exceed the number of christians (and "christians" such as Yeson8's) by the next election. Why not just vote to ban their religious choice?

Oh yes, because I believe in equality for all, and the right to live your life as you see fit, even if I'm never going to be living it myself. And religion doesn't seem to be the issue here in Aus (where we still don't have equal marriage, and where the straight marriage ceremony has to include a phrase about it being between a man and a woman, thanks to coconut boy), more an ongoing love affair with the backwards attitudes of the fifties - our rednecks don't worship, they just discriminate.

Anyway, back in non-grumpy land, I agree with Dr.S - marriage rights for all in 2010 (death to DOMA!), no elimination of fundamental rights from State constitutions, and how about a two-thirds majority vote to alter constitutions etc?

ps Dr.S - I remain impressed at just how mature and together you're being about this - I can't even imagine the emotions that all this must stir up.

Raised By Republicans said...

Percentages of people who are frequent church goers and Christians etc are notoriously variable depending on the study and how religiosity or atheism is measured. That said, Pombat, I would really like to see the study you are referring to so that I can show it to all my friends and show them that I'm not such a marginality nut case.

Dr. Strangelove said...

Thanks, Pombat. Obviously I don't share all of my emotions regarding this situation on this blog ;-) But I have watched closely as the situation has changed over the past twenty years, and that helps put Prop 8 in perspective.

My husband has been more profoundly upset by this than I have, I think it is fair to say. More than once he has asked me, incredulous and indignant, how it can even be possible that someone could just vote away our fundamental rights. I share that outrage. In my liberal view, when you put it all together, I think the basic guarantee of our Constitution is fairness. But most people still see the Bill of Rights as a bunch of separate blocks out of which they try to build a shelter, and unfortunately when you try to it that way, there are lots of leaks and the plumbing isn't so great.

The "revision vs. amendment" argument regarding Prop 8 was one of those legalistic, separate blocks types of arguments that was too rickety to stand. That's why I really liked the argument out of Jerry Brown's office, that when you get down to basics, voting away fundamental rights is simply antithetical to the Constitution as a whole, even though that particular rule is not spelled out anywhere.

I hope in 2010 we get to vote on restoring marriage rights and also guaranteeing fundamental rights to all. The ballot measures amending the California State Constitution don't have to be complicated.

Undoing Prop 8: "Article 1, Section 7.5 is hereby repealed."

Preserving fundamental rights: "Article 2, Section 8, subsection (g) shall be added: 'Rights guaranteed in Article 1 shall not be eliminated or restricted by the initiative process."

Fixing the problem with amendments:
"Article II, Section 10, subsection (a) shall be amended to add the following sentence: 'In the case of an amendment to the Constitution, a two-thirds vote is required for approval.'

The Law Talking Guy said...

Most courts still say 'there is no fundamental right to gay marriage.' And of course they are correct in a limited sense. There is no fundamental right to marry an italian or marry a 27-year-old. The fundamental right is to marry, period. Defining the right narrowly is one of the ways of defeating it. This issue is still quite novel to the courts. Remember it was only as late as 1996 that the Supreme Court decided that it was not okay to criminalize homosexual behavior - overturning their contrary decision 10 years ago. The country has been moving very rapidly on this issue, far more rapidly than anyone woudl have had any reason to expect given the experiences of every other oppressed group in the country.

Dr. Strangelove said...

The timeline is even more compressed than LTG indicates. Lawrence v. Texas, the case which overturned Bowers v. Hardwick and decriminalized homosexuality, was decided in June 2003. The Massachusetts Supreme Court legalized gay marriage in May 2004.

San Francisco Mayor Gavin Newsom directed San Francisco officials to grant same-sex marriage licenses in February 2004, and the same legal cases resulting from those licenses finally ended when the California Supreme Court recognized the right to gay marriage in May 2008.

It has been less than six years since Lawrence v. Texas. We've come far and fast, and momentum is still strongly on our side. I am hopeful that Prop 8 will be the last hurrah of the haters in California, and that 2010 will instead be a great year for civil rights.

The Law Talking Guy said...

FYI, the Washington Post has published the results of Trinity College's survey of 54,000 people on religion nationwide. The big news is the the % of Christians self-identifying is down from 86% to 76%. Still a whopping majority, though. And the non-believers are at 15%, which is big by historical standards, but not politically crucial.

The Law Talking Guy said...

Romer v. Evans in 1996, not Lawrence v. Texas, is the more crucial date. Romer v. Evans struck down Amendment 2 to the Colorado Constitution (barring any city from enacting antidiscrimination laws to protect gays and lesbians) on the grounds that it was impermissible to legislate against a group on the basis of "animus" towards that group. It was widely understood at the time that sodomy laws could not survive in such a context, and the dissent was bitter that Bowers wasn't even mentinoned in the ruling. Lawrence was not a foregone conclusion, of course, but had Romer not come before it, it would have been a true shocker. What was amazing about Lawrence was the scope of the opinion about liberty, plus the harsh language about Bowers even while justices who voted for that decision were still on the court.

The Law Talking Guy said...

In particular, see this passage, "for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more farreaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." That phrase "whether or not entitled to formal recognition" put the dissenters into hysterics, since it is lawyerese for "I think they are entitled to formal recognition but we're not presented with that case here so I don't need to decide that now."