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News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyJuly 16th, 2008
The California Supreme Court decided not to hear an appeal brought by civil rights groups to keep the anti-gay marriage ban off the ballot. Their argument was that
1. Those signing were told that the initiative would not change the law, just keep it the same. This is no longer true. California law now recognizes marriage.
2. The language of the proposition does not amend the constitution. Because it is not just a matter of changing marriage law but instead goes to the heart of equal protection and discrimination against a suspect class, it revises the nature of the Constitution, which is a much more complicated process than just an initiative.
Per the San Jose Mercury News
Without comment, the court unanimously refused to hear the legal challenge, filed last month by civil rights groups. The organizations argued that the ballot measure was legally flawed and should not be put before the voters.
The latest legal salvo most likely ensures that voters will consider the measure, which would amend the state Constitution to confine marriage to a union between a man and a woman.
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John
July 16th, 2008
I am not a legal expert, but as a Californian, I have noticed that the California Supreme Court has thrown out various voter approved initiatives over the years. Those cases involved an initiative that passes, and groups opposed to the initiative immediately filed suit.
Is it common practice for the court to remove initiatives from the ballot before an election? or do they usually wait to see what the voters decide before wading in?
KipEsquire
July 16th, 2008
My California lawyer friends insist that the court is only refusing to hear the case NOW (i.e., before the vote takes place), and that this is the preferred policy by the court (i.e., to wait until it’s clear that the amendment will ever take effect before reviewing it).
If the initiative passes, the court can and most likely will agree to hear the case then.
cooner
July 16th, 2008
I’m no legal expert either, but I don’t understand how something as fundamental as changing the constitution can be carried out by a single, simple majority vote in a voter initiative. Every other state I’ve heard of and the federal government have long, deliberate processes to make sure a constitution is not amended prematurely in the heat of the moment.
I also wonder, if as a few people have suggested, the court simply refuses to hear this argument now and instead intends to wait and see if the vote actually passes … what happens during the lawsuit? Will the effect of the initiative be stayed until the lawsuit is settled (i.e. same-sex marriages continue)? Or will same-sex marriages be stopped and same-sex marriage certificates invalidated … and then what, if the lawsuit is successful? Will all those marriages ‘turn on’ again?
I hope the right-wing forces are proud of all the pain, confusion, and uncertainty they cause. And that’s real-world pain and uncertainty, not that silly “preserve marriage” nonsense.
Todd
July 16th, 2008
Kip,
You seem informed and connected so any word on what might happen to the marriages being legally performed now if the amendment passes?
Also, my understanding is that the amendment will not “overturn” the actual ruling that was given by the court, but it may change the way the State views marriage if it is defined as the union of one man and one woman. Since the court ruled that seperate was not equal in this case, and mandated equality in the law, would the State be bound to no longer recognize any marriages? It is all so confusing…
JTW
July 17th, 2008
Kip, I agree with you. Here’s a cross-post from JMG that I just put up in the comments over there.
****
One thing everyone should remember is that this order was unanimous (i.e., 7-0), but the Marriage Cases and Denial of Stay were decided 4-3.
This points to a policy decision by the Court to follow its longstanding preference for hearing challenges to ballot initiatives only after they have been approved by the voters.
From our perspective, of course, waiting until the initiative passes isn’t necessarily a good thing, because the initiative can keep coming back every election cycle (including off cycles, like primaries) at phenomenal expense to all involved. To me, then, the notion of a FAILED ballot measure is far worse than the notion that it would pass.
Why is that? Because the Court will almost certainly step in after the election cycle to defend its ruling in the Marriage Cases. The gravamen of the complaint–that a simple majority vote to deny fundamental rights (like the right to marry) based on a specific classification (like sexual orientation) flies in the face of everything the California Constitution stands for (equal application of the laws to all citizens), and therefore the state must follow the more stringent revision process to work such a foundational change to the Constitution–is extraordinarily compelling in light of the strong language of the Marriage Cases opinion. (And the statutory claim that the petition was misleading to the signatories is not insubstantial, either.)
IMO, if the measure PASSES in November, it’s likely to be overturned as a revision, which will set back the haters for decades. If the measure FAILS in November, all the haters will need to do is to keep their eyes on the prize, and spend enough money and time to bring it back every election cycle until it passes. While the Court would likely take up review of the measure at that time, it would have waited far longer than is necessary to make the pronouncement that the measure is a revision–a pronouncement that it could–and should–make NOW.
Very disappointing and economically inefficient, but the weight of precedent seems to be that the Court will only take up the question if–and only if–the measure ever passes.
C’est la vie. We have our work cut out for us.
****
Timothy Kincaid
July 17th, 2008
I disagree with that analysis. If the initiative fails, it is at least unlikely that it will come again. They had some difficulty getting enough signature this time. And funding will be less likely with each new initiative attempt (they aren’t cheap in CA).
If Prop 8 fails, it isn’t likely to come back. Or, at least not in repetitive cycles.
If it wins, however, there is no guarantee that one of the four votes will not agree with the argument made and will instead – as was Judge Corrigan – be subject to the “will of the people” thinking.
JTW
July 17th, 2008
Timothy,
I’m worried less than you are about the way the Court would rule on the question, although I agree that there’s always a chance that we would lose.
My own legal analysis of the case presented in the briefs is that, from a constitutional law perspective, it is very compelling. (I can provide more detail about this upon request.) Above and beyond that, the case asks the 4-vote majority, “Did you mean what you said in the Marriage Cases?” My guess is that the answer will be “yes”–an opposite result would totally confound the legal principles laid down in the decision itself. But I concede that the possibility of a loss always exists, and that none of us can make a meaningful prediction as to the potential outcome.
My greater concern–with which you seem to disagree–is that the proponents won’t give up. I would hate to appear as though I am accusing you of underestimating the resolve of persons opposed to our civil rights, but I’m absolutely convinced that their ability to fundraise–combined with their ardent desire to harm our families–will keep them coming back.
Even so, I am deeply appreciative of your positive take on the matter, and I hope against hope that you are right.
Here in D.C., with a sufficient amount of time and money, it’s fairly easy to get something done that nobody actually wants or needs (see, e.g., the repeal of the estate tax, which currently impacts less than 1% of the U.S. population). Perhaps this reality has given me a somewhat cynical view of political processes.
My fear, then, is that the lobbying principles that work so well in D.C. will be deployed to create a perpetual campaign against same-sex marriage in California. And I sincerely hope that I am wrong about that.
Jim Burroway
July 17th, 2008
I wouldn’t be so sure that they won’t try again if Prop 8 fails in 2008. Prop 107 failed in Arizona in 2996, and they came right back again in 2008.
They are not going to let this go away.
Timothy Kincaid
July 17th, 2008
Oh, I don’t think they’ll stop trying. I just don’t think they’ll be successful in getting a proposition onto the ballot more than maybe once more.
Remember in AZ it’s a “new” proposition, one that doesn’t ban civil unions.
But the CA amendment is the more benign, more likely to pass variety. If it doesn’t come awfully close to passing, the Doug Manchesters of the world aren’t going to want to fund another run.
And California is a peculiar state. As the lawyer for Protect Marriage said, attacking gay rights is a method that is “unlikely to succeed in California”. Once the voters choose not to “protect the definition of marriage”, there are simply no winning arguments left.
And with each passing year support for marriage increases. They may have already waited too late. There are no statewide elected officials backing this proposition, including the two Republicans: Governor and Insurance Commissioner.
I really believe that if Prop 8 fails, marriage equality is here to stay for the forseeable future.
But, of course, this is all speculation. I think our best bet is to band together and fight like wildcats to see it defeated.
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