Photo of Prop 8 protest yesterday via the Bilerico Project.
Yesterday the California Supreme Court heard oral arguments in the case to repeal Prop 8. It doesn't look good:
Based on their questions and comments during three hours of oral argument Thursday, a majority of the California Supreme Court appeared ready to uphold Proposition 8, the ballot initiative that ended gay marriage in the state.
But, a small silver lining:
However, it seemed equally apparent that the court was prepared to rule that the 18,000 same-sex marriages performed in the state last year should remain valid.
My colleague Adam at the Prospect flags this quote from anti-marriage-equality lawyer Ken Starr,
"Rights are ultimately defined by the people," said Starr, representing Protect Marriage, the group that put the constitutional amendment on the ballot. He said proponents of Prop. 8 want to "restore the traditional definition that has been in place since this state was founded."
As Adam points out, this worldview is incredibly warped -- "there's something incredibly tyrannical about deciding, by virtue of the immutable circumstances of a person's birth, that they're not entitled to the same rights as you are." (On a related note, Adam has done some great reporting about the NAACP stepping into the marriage equality debate. Check it out.)
Way more on the Prop 8 hearing at the Bilerico Project, Pam's House Blend, Shakesville, Hullabaloo, and at the Community blog.
Oh, and a bit of good news from yesterday, too: A bill granting same-sex couples the right to civil unions -- and recognizing same-sex marriages from other states -- moved forward in Illinois.
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Two steps forward, one step back. We're getting there.
"Rights are ultimately defined by the people,"
As a lawyer, it's especially sad that he's pretending not to know that part of the function of the constitution and judicial system is to prevent tyranny of the majority. Individual rights should never be up for vote.
"Rights are ultimately defined by the people"
Hmmmm..... silly me, I somehow thought that the constitution was supposed to protect the minority from the tyranny of the majority.
What if we put the civil rights of African Americans up to a vote back in the 60's? I feel pretty certain that it would have been many many more years before they attained their rights. I mean, this is just ridiculous to me. The people who oppose "allowing" us to have the same rights enjoyed by all citizens are the same as those who were against interracial marriage as well (and used the bible for justification to boot).
Why can't the argument just be about the right to "the pursuit of life, liberty and happiness?"
On a lighter note, I am happy that the NAACP has offered themselves as comrades in the fight for our rights.
Ha! I quickly shot off a comment without reading yours and just now saw that we made the same point. Great minds and all...
I just don't get the judicial rationale for upholding something like this. What would have happened if they had put the Civil Rights Act to a national referendum? Taxes, school levies... these things are absolutely subject to popular vote. Civil rights? Not so much.
I think, if I recall what I heard correctly, that the judicial rationale simply hinges on whether or not Prop 8 was an Constitutional amendment or a Constitutional revision, not on the merits of whether Prop 8 is a good thing or not.
Like with the Cali medical marijuana case - for the USSC, it wasn't about whether or not medical marijuana was good or bad, but whether the commerce clause extended to certain parameters of intrastate activity.
Or, in other words (since I'm not sure I said what I intended to convey), a case before an appellate court often hinges on very different things than what seems like common sense. Morally, the justices might feel one way, but based on the parameters of the arguments set forth by the attorneys and the techincal application of the law, they might come out to a different decision.
It sounds like what you are saying is that they will rule specifically on the merits of the lawsuit -- that is, specifically, was this change to the Constitution enacted in a way that was procedurally illegal?
As opposed to whether Prop 8 itself is without merit (which should be patently obvious to anyone who cares about civil rights, but again this is the court, and protocol matters as much as merit).
Rights are decided by the people my ass. Someone needs a lesson in the social construction of the law.
Someone needs to embarrass Starr in court by handing him a copy of the Declaration of Independence, with the appropriate bits highlighted.
That quote from Starr is so off the mark. I'm pretty sure that in every United States history, government, or politics class I've taken they said that the legislature makes the laws, not the people.
The whole anti-equal rights contingent just boggles my mind. I've never actually been faced with someone who did not support same-sex marriage, but I've had a list of questions I've wanted to ask: Has a gay person ever harmed you in any way? When these 18,000 couples got married did your marriage fall apart or your marriage license get revoked? What do you have against two people who love each other having the same kind of legally recognized union that you have with your spouse?
I can't even get angry anymore, I'm just so at a loss for why this hatred and ignorance exists.
I am a born and raised californian and disgusted at prop 8. To let a majority choose the rights of a minority is awful. Just think where this country would be if we let everyone vote on interracial marriage and the like? I hope the justices do the right thing and over turn H8!
Before I infuriate everyone and bring a shower of outrage down upon my head I want to make one thing clear. I think prop 8 is a nasty thing that I would have certainly voted and campaigned against it if I was Californian. Obviously I think that Gay marriage is a grand idea.
However I hope that the Judges don't overturn Prop 8. It would be a disastrous tactical mistake for the Gay Rights Movement. It would justify all those Conservatives who say we Liberals are arogant and hypocritical. Worse it would piss off a huge number of moderate Americans.
If we want to win the Gay Marriage debate we need some of those who voted for H8 to change their views. Overturning the democratic process is not the way to do it. Instead lets trust in the idea that the majority of Americans have become and will continue to become far more tolerant of homosexuality.
Time is on our side. Polls show the young feel very different on this matter to their granparents. Lets focus on overturning it through the ballot box in the next few years, not insulting the electorate by doing so in the Court Room.
It is not the "overturning the democratic process" if we overturn the imposition of the tyranny of the majority on the minority. In fact, it is right in line with the democratic process to protect the rights of minorities from being able to be at the whims and vagaries of the majority.
This is why the legislature is in the separation of powers, to stop the people from doing whatever they want, to preserve a democratic nation.
Yeah, so we piss some bigots off. I can deal with that.
Fair enough. But what is it the best way to advance Gay rights? In the long run the ballot box is far better. Angering some bigots who will never change their minds is not the problem. It is when you insult and dissenfranchise those who voted for Prop 8, but in a next few years could be persauded to change their minds. By doing that you alianate them from Gay rights permenantly.
Surely it is better to make the movement more inclusive. One that more people feel they can have a stake in (even some conservative people).
If you call everyone who voted for Prop 8 a bigot then they will stay a bigot. If you engage with people who may change their minds you stand a far better chance of not just winning the right to Gay marriage, but also of gaining increaseing acceptance of homosexuals within society in the long run.
You know, honestly, I don't really care about getting acceptance of homosexuality from bigots. I really don't care if they have a negative opinion of who I have sex with. Personally I don't want to think about them having sex either.
However, we're not dealing with their feelings on homosexuality. We're dealing with civil rights. And that's a matter for the courts and the legislature ... both of which in CA have ruled in favour of same-sex marriage repeatedly.
They can think I am going to go to hell all they want, but the moment they impose that religious belief on me, they are a bigot, and they are using the law incorrectly and unconstitutionally.
What everyone (besides davenj) seems to be missing here is, THEY CHANGED THE CONSTITUTION!
It's legally very difficult to call a constitutional amendment unconstitutional, that's why the only hope was that the court classify Prop 8 as a "revision" not amendment. It clearly wasn't.
Prop 8 is constitutional because it is the constitution now.
ah, the process by which the proposition passed is unconstitutional ... hence, it can be unconstitutional as a proposition.
Yes, once it has become an amendment, THEN it is, by definition, part of the constitution.
The argument that is occurring right now on the constitutionality of the proposition is whether or not it constitutes an actual amendment (in merely being an addition, or clarification), or a revision (an actual change in meaning).
Personally, in reversing an already recognised constitutional state right (which is what the Supreme Court of CA had previously ruled as existing therein), I tend to feel that it most emphatically is a revision, and hence it must constitutionally go through a different process in order to be ratified ... an understandably more rigourous one, given you're making an actual change.
THAT'S what is being ruled on here regarding constitutionality.
i stand corrected, i apologize, to me it felt like the argument was "it's morally wrong so it can't be legal." i understand where you're coming from better now. and you have an decent argument, but in my opinion it's still a bit thin, i think any amendment has some effect on other clauses. this one had a specific, narrow purpose and really only affected other clauses to the extent that it accomplishes that purpose. but maybe my view of this is tinted by my opinion that a reversal would be tactically awful for the nation-wide movement. (which is, admittedly, immaterial to the legal argument)
what is definitely apparent to is that we need to mobilize better. prop 8 never should have passed, and i can thank my people for that (i grew up mormon). but it's pretty sad that we couldn't beat the mormons, and i don't think we can or should hide behind the state supreme court here.
we really need to call out the people who are close to us who think that inequality is ok, i realize you don't care if you "piss some bigots off." But they probably don't care if some fags can't get married. And they won't until we all start dealing with each other as people.
It makes me really fucking sad that my family members were a big part of passing prop 8. So, what? Fuck 'em? They're my family, and some of them are pretty smart, why do they think the way they do? Why did they vote the way they did? What can I do about it? Anything?
Maybe not. But the country's not gonna get better unless I try, even if some supreme courts grant marriage rights. I guess I think the responsibility and power to make real change lies with the people. (at the risk of sounding like Ken Starr. (yikes!))
I actually agree with you that it will be necessary to win the hearts and minds of the electorate. That will be necessary in any case. But in the meantime, it is still the job of the court to make sure things aren't enacted in an illegal fashion. While settling this in the courts may strike you as bad PR and therefore bad strategy, telling the courts to turn a blind eye to an arguably illegal enactment isn't appropriate either.
FWIW, even if it is struck down on those grounds it isn't settled. This ruling would merely serve to notify Prop 8 proponents that they need a different procedure and a supermajority to pass it legally, so it's back to the drawing board for them. If they can muster that many votes, then back it will come. The fact that they are unlikely to muster that much support, given the current climate, doesn't affect the fact that they are perfectly welcome, under the terms of the law, to try. I can even see clear to agreeing with your point that overturning it in the court might be enough to flip some fence-sitters back to the Pro-Prop-8 contingent, which potentially makes it a dangerous tactic.
I disagree. This represents an enormous blow to judicial power and the integrity of the California Constitution itself, if it stands. This is exactly the sort of issue on which the court needs to intervene.
It has been the Court's role ever since Marbury v Madison to ensure that the laws are enacted fairly and in a matter consistent with each other, including consistency with the laws governing the law enactment process itself. You cannot claim that the court should butt out, and still express any credible respect for the Constitution thereafter. You have just proposed the sort of majoritarian tyranny that Consitutional clauses such as "equal protection under the laws" are supposed to guard against.
Proposition 8 enshrines in law the principle that anyone with sufficient votes can line-item-veto the rights of a despised minority. This renders the equal protection clause effectively meaningless. Surely that is a major - nay, fundamental - reworking of our approach to civil rights.
Further, when the proposed amendment causes the mechanics of other, existing clauses to be fundamentally altered, it constitutes a major 'revision' as opposed to a simply 'amendment' (to use the California terminology expressing this concept). It is the expressed intent of this "revision" v "amendment" language to make it difficult to subvert the fundamental workings of the Constitution. An amendment which confines its effects to the concepts within its own language is easier to pass than one whose effects reach into and essentially rewrite other parts of the document.
This is the basis of the lawsuit before the court. They are asking the Court to uphold the express Constitutional principles that have been violated here. By telling them to stand down, you are telling the Court to ignore the law.
I agree that it's going to piss off a lot of conservatives. But it is entirely justifiable under both the letter and spirit of the existing laws, and asking the Court to overlook it in favor of winning hearts and minds is to tell the Court to not do their job.
"Rights are ultimately defined by the people,"
Civil rights should never be put up to a vote because the majority will always vote against the minority. If back in 1920 we let the white male voters vote on whether to give women suffrage, we would have never got it. (I know non-white men did have sufferage then, but during that time states did keep non-white men from voting through things like literacy tests and poll taxes. That's why I used the term "white male voters")
But white male voters *did* vote for woman suffrage, that's how states passed woman suffrage laws and how the 19th amendment was ratified.
The equivalent in the marriage equality battle would be to do what GBRocks is suggesting above, and bring the fight to the ballot box over and over until we've changed enough minds that it passes.
As a Californian, I think the argument that allowing the elimination of rights for a protected minority by a majority vote is a massive revision of the intention of the state Constitution is a valid one. I just hope enough Justices agree. Either way they decide, I guaran-damn-tee you we'll be back at the ballot box on this issue within the next two years.
It was voted on by Congress not regular citizens. When I use the word "voters" I'm refferring to citizens who don't hold public office.
In 1920 the legislatures of 36 states were needed to ammend the Constitution for women's suffrage. These were by and large filled with conservative white men. And they did vote for it: as shown by the fact that Texas, Arkansas and Tennessee all passed it. They clearly all felt that their electorates would not hold it against them if they passed the ammendment.
The right for women to vote was won through a long and difficult campaign to persuade these conservative white men who represented the electorate to ammend the Constitution, not through judicial activism.
From a legal perspective in this case Starr isn't wrong. Basic protected rights ought never be subject to vote, of course, but gay marriage under US federal law is not a protected right. The Equal Protection Clause does not and has not extended to homosexuality. Therefore this amendment to California's state constitution is completely legal. It may result in a morally reprehensible result, but legally it's rock solid. To overturn it we would need:
a. A change in the judicial interpretation of the EPC.
b. A new constitutional amendment that strikes down Prop 8.
B seems far more likely, given that the problem here is also the solution. California has a really laissez-faire amendment process that only requires a simple majority to pass it. Prop 8 didn't win by that much, and it likely won't hold up in the long term.
Does it suck that the rights of minorities have to be decided upon by the majority? Yes, but in this system that is how it has worked, from one group to another. A group of Christian white guys decided in freedom of religion, and white Supreme Court decided Plessy, and a predominantly straight California will have to decide whether or not to overturn Prop 8 legally, barring intervention by the (predominantly straight) federal government.
Any move to circumvent a legitimate state amendment and the will of the public could backfire by creating a precedent for overturning state constitutional amendments in California. Seems fine now, but if this happens it'll make it exceedingly tough to get a state amendment to allow gay marriage.
Whether or not Ken Starr favors marriage equality is immaterial. His legal argument is correct. Blame the 52% of Californians who voted for Prop 8 and demanded of the democratic process something that we may not accept, but that legally does not have recourse just yet.
The big victory would just be making Prop 8 non-retroactive, and thus creating a precedent for gay marriage within the state.
Ugh, this is so upsetting. SFGate has this quote from Starr: "Proposition 8 does not erode any of the bundle of rights that this state has very generously provided" to same-sex couples. I like that "very generously"- you know, we don't HAVE to treat you as human, but we're just so darn generous.
"there's something incredibly tyrannical about deciding, by virtue of the immutable circumstances of a person's birth, that they're not entitled to the same rights as you are."
I hate to criticize the progressive's position, but since when are we same-gender attracted due to circumstances of our birth? There are no scientific studies that have been replicated that show (a) a genetic marker associated with same-gender attraction, (b) differences in hormone levels or prenatal hormone exposure between 'straights' and 'queers', or (c) differences in anatomical structures in the brain between 'straights' and 'queers'. That brief mid-90s slew of so-called findings of 'gay genes' or abnormal hormone exposure in the womb causing same-gender attraction has been thoroughly debunked and disconfirmed.
This 'it's-not-my-fault-i-was-born-this-way' ploy is a baseless and self-destructive crutch. We don't need 'genetic disarrangements' or 'hormonal abberations' to justify being granted equal rights. If features of my social context or even pure conscious choice made me same-gender attracted, I'd still deserve equal rights.
Though we all know why the argument exists, you're absolutely right that we "don't need 'genetic disarrangements' or 'hormonal abberations' to justify being granted equal rights." Furthermore, the US is a representative, not a direct, democracy -- a gay marriage ban shouldn't have been publically votable in the first place. Especially regarding a protected class of citizens. I don't know if there's precedent that could get prop 8 proponents on inappropriately administered vote...
K. I need more coffee.
However, there is evidence (particularly regarding brain structure) that sexual orientation is physically determined. If I have time (and remember) today I will look on pubmed for some references!
Why even go there? Immutability is entirely irrelevant in any number of other protected classes.
Dammit, I was born Unitarian. Don't you dare discriminate against me on that basis. XD
I agree and I really think taking that tact has more long-term transformative potential since it doesn't rely on 'fluke-of-nature-excuse-making' for sexual preferences.
But hell, some people would even claim your religiousness is genetic too. It's hard to get away from at this point. I've never read it, but there's this book "The God Gene: How Faith is Hardwired into Our Genes" by this guy Dean Hamer. Same guy who found a genetic marker for male gayness on the X chromosome in the early '90s (never found again). But, that guy was accused of research fraud by a research assistant, so... yeah.
We ought not use amendments to ban things--the bill of rights is made up of amendments. The last time we used an amendment for something was during prohibition, and the only way to undo that was to make another amendment. Let's not clutter one of the most socially valued documents of history with post-its of the times.
Good thing this isn't the US Constitution, but rather the Constitution of the State of California, which is totally and completely different.
I hate it when they start saying that it's "redefining" marriage, and "traditional definition of marriage". Which tradition would that be? The polygamist one or the one where women were transferred as property from their fathers to their husbands?
We've already fucking redefined it about twenty different ways, dipshit!
Well, I'm always willing and appreciative to take a peek at a reference on this topic. But if it's the hypothalamus stuff from Simon LeVay, that study had huge problems and hasn't been replicated. The gay-identified men's corpses that he used had been on HIV-AIDS drugs that are known to affect brain structures. I've been peering through everything from the 'lesbians have distinct fingerprints' and 'soy milk feminizes men' claims to the more respected, if not credible, work enough to drive me insane.
I'll match you some references though while you get caffeinated. I think these are the best overviews of the literature (1st one is by a historian, 2nd is by a neuroanatomist):
Terry, Jennifer. 1995. “Anxious Slippages between “Us” and “Them”: A Brief History of the Scientific Search for Homosexual Bodies,” Pp. 129-163 in Deviant Bodies: Critical Perspectives on Difference in Science and Popular Culture, edited by Jennifer Terry and Jacqueline Urla. Bloomington: Indiana University Press.
Byne, William. 1995. “Science and Belief: Psychobiological Research on Sexual Orientation.” Journal of Homosexuality 28(3/4):303-344.
err, that last comment was @ elektra above. i think i broke something... er, i'm new.
I struggle with this. The libertarian in me makes me simultaneously want to honor the explicit wording of the constitution, while that same libertarian impulse thinks that a majority should never have the right to tyrannize a minority. Majority rules, with minority rights is how we used to say it.
At the end of the day, I think I come down on the side of voiding the vote, but that is an awesome, awesome ruling. Overturning a vote breaks the democratic tradition, much more so in the case of such a big, well funded, easy to understand vote. For me a constitution is both the 1) structure of government, and 2) the rights of the governed. Its a contract as Locke would say, and as such any dimunition of rights is, in fact, a change in structure. I guess I can't contemplate an America where the majority could rule that blue eyed, left handed men couldn't hold property, visit loved one's in the hospital...or marry who they want.
The truth of that matter is--and its been apparent decadeds now--is that the Cali Constitution is a totally fucked up document. And Jerry Brown fucked up big time in letting the proposition vote proceed if in fact he thinks it was illegal to begin with....There's nothing easy about this decision.
I am truly horrified that the California Supreme Court appears likely to uphold the constitutionality of Proposition 8, for the following reasons:
In handing down in re Marriage Cases, S147999 (2008), the state high court held, as a matter of law, that gay persons comprise a "suspect class" and that the right to marry is a "fundamental" constitutional right. These terms have specific and important meanings. A suspect class is a group of persons, the members of which have suffered a history of invidious and purposeful discrimination based on the expression of a characteristic that bears no logical relationship to the ability of members of this group to contribute to society; this characteristic is frequently immutable, or changeable only at unacceptable personal cost to members of the group concerned, and the group in question can often demonstrate a history of political powerlessness. Any legislation that disadvantages members of a suspect class is presumptively unconstitutional in the eyes of the courts, and must be shown, by the state, to promote a "compelling state interest"; the state must also show that the legislation in question sweeps no more broadly than is absolutely necessary for the promotion of that interest (this is known as "narrow tailoring"). This standard of judicial review is known as "strict scrutiny".
(Significantly, the courts attach considerably less importance to the immutability prong than to the other prongs of the test (to determine whether or not a group is suspect, or whether a classification proceeds along suspect lines).)
Furthermore, any measure that infringes a fundamental right must be subjected to strict scrutiny, regardless of whether or not the group adversely impacted by the legislation is considered to be a suspect class.
Proposition 8 therefore withdraws the exercise of a fundamental right from members of a suspect class -- it is utterly irreconcilable with the state high court's equal protection jurisprudence. I submit that Proposition 8 is facially unconstitutional. The state high court should decide that two provisions of the state constitution are now in conflict, rendering it necessary for the court to decide which provision to retain and which provision to abandon.
By abandoning its own equal protection analysis, the court has opened the door to the piecemeal withdrawal of other fundamental rights from other minorities, and from other groups classified along suspect lines. While members of the court may shudder at the prospect of directly overruling a recently-enacted amendment to the state constitution (doubtless anticipating the recall petitions and the accusations of "judicial tyranny" that would follow such a ruling), the alternative -- which they appear willing to embrace -- does violence to the state's equal protection jurisprudence, and eliminates a fundamental structural and operational check against majoritarian excesses, or majoritarian overreaching.
Fundamental rights should NEVER be subjected to the outcome of a popular vote, which is precisely what has happened in this case. As Justice Judith Kaye observed in her dissent in Hernandez v. Robles (2006) (the New York gay marriage ruling):
"Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them."
The court could have decided that opponents of Proposition 8 were correct in arguing that such an amendment has to be approved via the more deliberative constitutional revision process, rather than by the more deferential constitutional amendment process. The former requires ratification of the proposed amendment by a supermajority of the state legislature, as well as by a majority of the voters. The court could have avoided the grotesque implications of its apparently already decided judgment in this case by tossing this issue back to the state legislature, where the amendment would almost certainly fail. However, the court appears to have chosen the most destructive alternative; I believe that the full extent of the damage that will result from this self-inflicted wound has yet to be made apparent...
However, there is one prediction I can make with utter certitude: we will be back, in 20 months, with a measure to restore the right to marry to gay Californians. If we fail in 2010, we will try again in 2012. If we fail in 2012, we will try again in 2014. Eventually, the vitriol and the money of the Mormons and other fundamentalists notwithstanding, gay marriage will once again become legal in California -- and, in time, throughout the nation.
PHILIP CHANDLER
This makes me so sad. I can't even muster up the energy to be angry anymore, just depressed. Why must people hate those who are different from them? Why do the pro-8 crowd spend so much time and energy trying to keep gay people from marrying the partners they love? Just... why? I don't get it.
Yeah, I know that they fear anything different, and fear leads to anger, anger leads to hate, hate leads to destruction. (Thanks, Yoda!) But why fear different people in the first place? That's what I don't get. All of us are different from everyone else. It's called being human. Some of the variations on humanity are more visible than others, that's all.
I know I'm preaching to the choir here. But there are days when I wonder why I even try to speak, if the "majority" won't hear simple logic.
Bah. My chemistry homework has got to be better than this. Chemistry is straightforward, clean, and logical. Science will keep me sane! (That and kitty purrs.)