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."

Tuesday, May 26, 2009

Looking Forward to November, 2010

In a 6-1 decision today, the California Supreme Court upheld Proposition 8, the voter-approved state constitutional amendment that eliminated the right of gays and lesbians to marry. However in a 7-0 decision, the California Supreme Court also held that the 18,000 same-sex marriages that took place before the election will remain valid. It is a small comfort, but a comfort still.

In his lone dissent, Judge Carlos Moreno argued that one should not be able to eliminate the right to marry by simple majority vote, nor should one be able to eliminate any fundamental right that way, because such rights truly are "fundamental" to the constitution. One cannot remove one of the structural supports for a house and claim that is it merely a cosmetic change. Here are three excerpts from Judge Moreno's opinion. (I stripped out the case references and footnotes).

[T]here is no “underlying” principle more basic to our Constitution than that the equal protection clause protects the fundamental rights of minorities from the will of the majority. Accordingly, Proposition 8’s withdrawal of any of those rights from gays and lesbians cannot be accomplished through constitutional amendment.

Under the majority’s reasoning, California’s voters could permissibly amend the state Constitution to limit Catholics’ right to freely exercise their religious beliefs, condition African-Americans’ right to vote on their ownership of real property, or strip women of the right to enter into or pursue a business or profession. While the federal Constitution would likely bar these initiatives, the California Constitution is intended to operate independently of, and in some cases more broadly than, its federal counterpart. The majority’s holding essentially strips the state Constitution of its independent vitality in protecting the fundamental rights of suspect classes... As discussed, denying gays and lesbians the right to marry, by wrenching minority rights away from judicial protection and subjecting them instead to a majority vote, attacks the very core of the equal protection principle.

The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.

While I agree strongly with Judge Moreno's argument, I am not surprised that it is the minority view. In their lengthy opinion, the majority of the court took pains to remind us that the previous case which recognized the right to marry also recognized many other rights for gays and lesbians, and those other protections remain intact. I still am very grateful to the California Supreme Court for their earlier ruling and, even here, I believe these judges--mostly conservative Republicans, don't forget!--still did all they felt they possibly could do to protect gays and lesbians.

The rest is up to us, the voters of California, and also our elected leaders. Equality California, which led the fight against Prop. 8, announced today it will indeed field an initiative to repeal Prop. 8 and restore the right to marry for November, 2010. So, just as a handy financial tip, if you have any savings left, you might want to buy stock in companies that do direct mailing in California. It's going to be the mother of all initiative battles, I am sure.


Anonymous said...

Let's see...the CA term limits prop that was voted for by the majority, was over turned by a federal judge.

Prop 187, again voted for by the majority, overturned.

Prop 83, keeping sex offenders from living 2,000 feet from schools, overturned.

But they don't want to over turn Prop 8?

Raised By Republicans said...

This raises some interesting questions about the fundamental role of judicial review in the first place. Is judicial review there to act a mere moderator for the other branches of government? Or is it there as a check against the tyranny of the majority?

The tyranny of the majority is exactly what we are talking about here and what Moreno was talking about too.

For a long time the right wing in this country has pushed a view that democracy means the unchecked power of 50%+1 to establish any law however it may infringe on the lives of the minority. This is at odds with the underlying logic of most democratic constitutions.

I'm increasingly convinced that the conservative movement in this country will only abandon that view when they have had a wide range of policies crammed down their throats in the name of majority rule. Then they'll get it - for a year or so.

The Law Talking Guy said...

Anonymous: these are issues of federal and state jurisdiction. No federal challenge was brought to prop 8, on the belief that it would encourage the Roberts court to make bad precedent.

The Law Talking Guy said...

If Atty General Brown and the Sec of State had refused, before the election, to place the proposed initiative on the ballot on the ground that it was an unlawful revision, that argument would likely have won the day. When elected officials wait for the judiciary to take their chestnuts out of the fire, the judiciary does not always bail them out.

Raised By Republicans said...

By the way, congratulations to Dr. S on being still married. Grandfathered in is good.

So, anyone have any ideas as to which minority group should lose their rights next? I bet we could get a majority in favor of Mormon bashing.

Dr. Strangelove said...

Thanks, RbR. Perhaps instead of "grandfathered" in we should say we were "husbanded" in? "Spoused" in?

My husband summarized today's ruling succinctly: "Yay for us. Boo for everyone else."

The Law Talking Guy said...

The best opinion to focus on is Werdegar's. She gets everything right, including the absolute ludicrousness of the Court's ruling. Only it's not intentional.

Pombat said...

Dr.S said: Thanks, RbR. Perhaps instead of "grandfathered" in we should say we were "husbanded" in? "Spoused" in?

You were Aussied in. Definitely :-)

Mr.S is right, and I find this rather bittersweet. I also fail to understand why they couldn't chuck out Prop 8 completely, given the kind of precedents Anonymous lists at the top of the comments. But anyway - having left the original 18,000 couples married is a good first step at least, and is the best of the worst case scenarios - by the time Nov 2010 rolls around, you 36,000 will be the best proof that the world's not going to end if other couples get to marry too. I hope the ads are better this time around, lots of stuff with happy couples, no distinction between them, that kind of thing.

Pombat said...

I probably shouldn't be, because the bigots make me angry, but I'm currently reading the LA Times comment page on the Prop 8 decision, and I found this wonderful comment, courtesy of a poster called 'Get a clue', at 10.53, May 26:

"Rather than pussyfooting around with the equal rights stuff, state what Prop 8 REALLY means for California - Straight murderers, rapists, child molesters and the rest have special rights. No matter how many people you've killed, no matter how many children you have damaged, you have a special right to get married that other law abiding Californians do not."I call it wonderful because I would love to see a rabid Bible-thumping bigot defend that one (note to any new readers: I know that not all religious people fit this description, but I must admit to enjoying debating/baiting those that do). The comment right next to it, courtesy of 'Alex C' at 10.52, May 26, is also a good one:

"Looking at it another way: There are other religions (and other sects of Christianity) who do not object to homosexuality and same-sex marriage. If they are allowing one religious argument to push this law into validity, why do they ignore these other religious arguments that say it is okay?"Hopefully the sane, tolerant, nice people of the world (or at the very least, California), will greatly outweigh the other mob very soon - another poster did also point out that young people have nothing against equal marriage, and the older bigots who do are - quite literally - dying off every day.

Raised By Republicans said...

I just heard that two lawyers, one who worked for Al Gore and one who worked for George W. Bush have filed a challenge to Prop 8 in federal court on the grounds that it violates constitutional guarantees of due process and equal protection. LTG can clarify on the legal specifics.

I gather there are many who think this is not a good strategic move.

Pombat said...

Yeah, it's interesting that they've teamed up isn't it? Says a lot.

The Law Talking Guy said...

The argument, I presume, is exactly a redux of what the CA Supreme Court itself held last May. Where a state is willing to grant to same-sex couples all the rights and benefits equivalent to opposite-sex couples in marriage it cannot deny them the use of the term "marriage" out of animus towards gays (See Romer v. Evans). I have been pounding this drum ever since the Vermont Supreme Court ordered civil unions in 1998.

There may be a rational reason to grant rights to married people that you would withhold from a same-sex couple. I disagree with the reasons advanced, but they may not be irrational, and right now that's all the federal constitution requires to discriminate against gays. But there has to be some reason. There is no reason to give a same-sex couple everything but the name "marriage" other than a desire to devalue the relationships.

As Justice Kennedy (the perpetual swing vote on the Court) wrote in Romer v. Evans: "The amendment seems inexplicable by anything but animus toward the class that it affects.... We must conclude that [the amendment] classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This [the state] cannot do."

Raised By Republicans said...

LTG, I think the quotation from Kennedy in Romer v Evans can apply with equal force to Prop 8. It gives me some hope that the Supreme Court will rule that even 52% of participating voters in the State of California cannot classify homosexuals as unequal.

Pombat said...

I just find it incredibly scary that a majority can apparently vote to remove rights from a minority - that's an awful precedent to have set (legal viewpoint pls LTG/Seventh Sister?). There's all sorts of rights that we take for granted now, that have only been granted in the last 50-100yrs - anyone other than straight white guys should be very worried.

Raised By Republicans said...

Hopefully it will be nullified by the federal courts applying the US constitution to the issue. State constitutions cannot (I believe) contradict the US Constitution.

It is worth noting that there are democratic countries out there where there is no institutional impediment what so ever to the current majority taking rights away from a minority. There is no effective check at all on the power of the majority party in the UK (as Catholics have found from time to time over the last few hundred years), or the power of the majority coalition in Israel ('nuff said there).

The Law Talking Guy said...

RBR, I was quoting Romer v Evans precisely because I was explaining how it applies to Prop 8.

Pombat said...

Noooo, posting a relevant quote that's pertinent to the discussion at hand? Surely not!


Raised By Republicans said...

I know. I was agreeing with you. It gives me hope that this strategy could work.