The California Supreme Court must overturn Proposition 8, which passed by a narrow margin of 52 percent on November 4. In an order issued today, the Court agreed to hear the case and set an expedited briefing schedule.
In my view, Prop. 8 is an illegal, illegitimate vote that should be scorned, ridiculed and met with direct action. The vote is nothing more than mob rule, tyranny of a bare majority and an underhanded attempt to destroy the separation of church and state. This fight helped highlight that anti-gay forces have little use for America's style of government. They believe that minorities have no protection under the law and that the church with the largest membership gets to lord over the rest of the population - even if it is against their will. They want to impose church rules on all of us - even if we are not members. This blatantly violates the establishment clause and creates a state religion that we all must adhere to or face consequences.
Is this America? I don't think so. This is why the court must restore sanity and bloc attempts to write bigotry into the constitution.
Furthermore, those who passed Prop. 8 pretend they represent the will of "the people." They don't. They spent $40 million to win a bare majority, but were only able to do so by a disgusting con job, where they lied to Californians and scared them to death. Their campaign was so perverse, untrue and outright sickening that it borders on criminal. What they did was lie to "the people" because their case had no merit. And, they pretend they are doing God's work.
The court should do the right thing and show nothing but utter contempt for the illegitimate Prop 8 and the shameless liars who sponsored it.
To say that Prop. 8 is "an illegal, illegitimate vote" is good blogospheric wordplay, but it doesn't get you very far in a state supreme court. At this point the discussion has to be:
--What are the strengths (and, yes, the weaknesses) of the main "revision versus amendment" argument?
--What to do next if the California Surpeme Court upholds the ban?
Agreed 100%. The CA Supreme Court should indeed show utter contempt for this piece of garbage. The people who funded this, especially the Mormon church and the extreme right, are fantastically anti-American.
They might claim to love this country, but their actions prove that they actually HATE America. What else can be said about people who fight so endlessly against the civil guarantees which make our country great, like liberty and justice for all and the concept of equal protection, not to mention the bitterness they express over these ideals?
Plus, they are amazingly unintelligent. What else can be said about people who apparently can't understand that "the people" don't get to vote on constitutionally guaranteed rights? The "Yes on 8" crowd is a traveling carnival of historical and constitutional idiocy!
posted by Chris L., at
11/20/2008 11:30 AM
I agree. This is just my opinion on this. Thankfully, we have some wonderful lawyers who can argue this from the legal perspective.
I hope the judges agree with my point of view and that of the attorneys at some wonderful organizations, such as NCLR and Lambda Legal.
posted by Wayne Besen, at
11/20/2008 12:58 PM
The difference will be qualitative vs. quantitative.
From what I've read, measures that have been labeled revisions have been extremely wordy and affected a number of different laws and facets of public life. That's quantitative, and if they decide based on that they won't strike it down because the amendment is only a sentence or two long and affects only one specific area of public life.
However, it can be argued (quite easily I think) that even though the amendment consists of few words, it radically distorts the constitution, because as Wayne pointed out it sets the precedent that a minority's rights are up for the majority to vote on. So in a qualitative light, this is a major, sweeping change to a constitution that otherwise protects minorities from the tyranny of the majority.
If they don't strike it down, it will have serious consequences for all minorities. Suddenly all those people of color who supported the amendment will have to come up with a valid reason why the white majority shouldn't get to vote on the rights of blacks and Latinos.
(From what I hear some black, Latino and other minority groups are realizing this and supporting the lawsuits.)
I think the fact that the Yes on Prop 8 folks were so blatant about the fact that they were targeting gay marriage will really hurt them. I mean, didn't the thing on the ballot actually read "eliminates marriage rights for gay couples"? It should be easy for the court to realize it is unconstitutional to begin with since it targets a specific minority and deprives them of a constitutionally guaranteed right.
Unfortunately, the other major issue is that supporters of the ban will almost certainly try to recall the justices who don't vote in their favor. They haven't outright threatened it yet, but they've already been discussing it and it would be a real fucking miracle if that didn't happen if Prop 8 gets overturned. So it may depend on how much the justices like their jobs, which of course compromises their objectivity and undermines the very notion of justice, but unfortunately that's how things are.
Ultimately, even if the Supreme Court upholds it, people will keep suing and eventually it will get to the federal level. If the federal Supreme Court upholds it, it will still be a controversial ruling, it will be far from settled law and we'll keep fighting it anyway. Unless the Christian right is successful in converting our nation into a theocracy, we still live in a constitutional republic that guarantees individual liberty. As long as that republic stands, gay equality will be inevitable.
One of the four judges who voted in favor of marriage equality in California, Joyce Kennard, is not going to support reversal of Prop. H8. This will mean that the ruling will stand as is with a 5-2 vote as opposed to the original 4-3 majority in favor of marriage equality. She is apparently more concerned with the 18,000 marriages already performed in that state. My understanding was that there was no retroactive clause within the initiative to nullify the marriages which brings me to another point.
If the next administration legislates for civil unions at the federal level, it would mean that those marriages would also have to be accorded the same rights and privileges of civil unions that are purported to confer all the rights and privileges of marriage. I don't see any state demoting legally performed marriages to civil unions either. My gut feeling is that most gay couples will not take advantage of civil unions knowing they can simply go to Canada, Massachusetts or Connecticut. Connecticut's population is just over 3.5 million out of which only 2300 civil unions were performed. I think we will see a similar pattern for the rest of the country.
posted by Robert, NYC., at
11/20/2008 2:43 PM
My younger brother is a university law professor, and he says that there is no way in hell that Prop. 8 will be overturned. I debate it with him, but it makes me wonder.
posted by Chris L., at
11/20/2008 3:03 PM
Chris, my gut feeling is that your brother may be right about that. I don't see it being overturned. California now joins the other 30 or so states with theocratic constitutions, more than half the country.
posted by Robert, NYC., at
11/20/2008 4:12 PM
The bizarre thing about law, in general, is how many different opinions one issue, one case, can generate. There are law professors arguing that 8 will be overturned, others arguing that it will not.
Interestingly, one of the Phelps' clan, a lawyer herself, is on record in an interview stating that 8 will be readily overturned.
Others have pointed out elsewhere that the prior decision striking down 22, states that the right of marriage cannot be taken away by popular vote - a ruling made with the awareness that Prop 8 was already gathering signatures and in the works.
An interesting possibility: if the Court were to rule that, because CA's Equal Protection clause bars anyone from having rights denied to any group, CA cannot issue or recognize marriage for anyone until Prop 8 is repealed by popular vote.
posted by Friend of Jonathan, at
11/20/2008 6:22 PM
Maybe I will try to get my brother to take a break from being a law professor and post here as to why he thinks that Prop. 8 will not be overturned. Be advised, my brother is 100% pro-gay and was disgusted by the fact that Prop. 8 passed; he is also an enthusiastic supporter of gay marriage. But as a legal matter, he says that it won't be overturned. Personally, while I'd most certainly like it to be overturned, I'd also like to go back to the ballot box with a repeal referendum and beat them at their own game in 2010.
posted by Chris L., at
11/21/2008 11:41 AM