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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 lobbyNovember 28th, 2008
If you can strip away rights already enjoyed by one unpopular minority via a popular vote, why not go after someone else’s?
“The entire purpose behind the constitutional principle of equal protection would be subverted if the constitutional protection of unpopular minorities were subject to simple majority rule,” read a brief by black, Asian and Hispanic groups challenging the ban. “This case is not simply about gay and lesbian equality.”
… “The history of California demonstrates with sobering clarity the potential for disfavored minorities to be subjected to oppression by hostile majorities,” the minority groups say in their brief, pointing to segregation laws and one excluding Asian-Americans from land ownership as examples. …”It is not hypothetical. It’s a track record,” said Stanford University law professor Jane Schacter, who has not filed briefs in the case.
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johnson
November 28th, 2008
That is precisely the message the GLBT community needs to communicate to other minority groups, particularly the Black and Latino community.
Bill
November 28th, 2008
To the degree that this claim is true, it is also irrelevant. The state constitution is not required to even have an equal protection clause. Presumably, the people could remove even that with a 50% vote!
The constitution clearly states that ALL political power lies with the people, not the court. I personally agree that a 50% vote to amend the constitution is problematic, but apparently California places a lot of confidence in the people and, given its reputation for tolerance and liberal attitudes, you have to REALLY piss a lot of people off as a minority to have them remove your so-called rights.
The article linked to referred to other minority groups (prisoners, immigrants) who could be affected. However, 30+ years ago, the court ruled that the death penalty violates “cruel or unusual punishment” clause. People reinstated death penalty with amendment. Court upheld amendment process. Now, it is hard to imagine if you are a prisoner a right more fundamental than not being executed, but the people removed that “right.” The court upheld the amendment process. The only difference between that case and Prop 8 is that the court declared sexual orienation to be a suspect class and it hasn’t done that for prisoners (yet!)
What people seem to be missing here is that the “so-called” fundamental right to gay marriage was an OPINION of the court… it was not actually in the text of the constitution (ie. it is not an expressly enumerated right). Courts try cases, they do not make law. It does not get to actually alter the constitution itself. Its opinions have the FORCE of law, but they are not laws themselves… they are simply interpretations and applications. And in fact, courts occassionally overrule previous interpretations (e.g. Lawrence overruled Hardwick but the constitution itself had not changed).
When the people actually amend the constitution, they are changing the LAW. This change could very well contradict a previous opinion of the court (in fact, as in this case and the death penalty case, that was the whole point).
The court, a creature of the constitution itself, cannot remove the amendment based on its prior interpretations of the constitution. That would make its opinions more important than the constitution, which would effectively give it more power to make law than the people or its legislature.
The court could effectively insulate its decisions from reversal through the amendment process by framing its opinion as a fundamental right. In this case, the court appears to have written its opinion in just this way for exactly this purpose. There is certain amount of legal trickery and maneuvering going on here.
In 2000, the people clarified the already assumed definition of marriage with a statute initiative explicitly defining marriage. Had the people known the court would declare it unconstitutionl, it would have simply passed the initiative as an amendment to start with.
Instead, people are playing games with the timing of this amendment. Had it already existed, would anyone be questioning its legitimacy? But the fact that is occuring to correct the court’s wrong opinion, people are saying that it “removes already existing rights” as if these right have been around since the beginning.
I don’t see how the court has any choice but to amend its previous decision in light of the new text they have to assist their interpretation of equal protection. Given that 3 of the justices already found a way to interpret equal protection to not include gay marriage, it shouldn’t be hard for the other 4 to do the same in light of the additional clarification the people have given them.
Hunter
November 28th, 2008
Bill —
To answer only one point in your comment, there seems to be a tendency among opponents of full marriage equality toward splitting rights into fragments, so that each fragment becomes a “new” right. The court did not hold that “gay marriage” is a fundamental right, but that “marriage” is a fundamental right. This is not a new concept at all, being the cornerstone of Loving vs Virginia, and, if I remember correctly, Perez, the California decision that preceded that SCOTUS decision by some 19 years.
In the decision that was overturned by Prop 8, the court did not find a new right at all, but merely affirmed one that already existed — it’s quite arguably the case that constitutions do not grant rights, but confirm them. (If you doubt my take on the Founders’ thinking on that, please remember the phrases “endowed by their Creator” and “inalienable rights.”)
So, yes, in fact the amendment referendum did strip a particular class of citizens of a fundamental right without a rational basis, and the groups filing this brief are quite justifiably concerned.
Joel
November 28th, 2008
When will the court hear it and decide?
“you have to REALLY piss a lot of people off as a minority to have them remove your so-called rights.”
I would love to know what you were insinuating when you wrote this.
“The only difference between that case and Prop 8 is that the court declared sexual orienation to be a suspect class”
Does this explicitly mean that it on the same level as other minorities?
Brady
November 28th, 2008
Bill- saying that gay marriage is not a right outlined in the constitution is a red herring. The constitution does not enumerate rights one by one.
In fact, if we only considered rights those activities that were expressley listed in the constitution, we wouldn’t have the right to do much. Driving, surfing the internet, even buying a snack certainly aren’t rights according to the definition of rights you have come up with. That doesn’t mean, of course, that we can decide that minority groups can or can’t participate in these events thanks to the constitution (state or federal) and it’s equal protection and due process stipulations.
Bill
November 28th, 2008
Joel:
I wrote: “you have to REALLY piss a lot of people off as a minority to have them remove your so-called rights.â€
You replied: “I would love to know what you were insinuating when you wrote this.”
First, I probably shouldn’t have worded it so crudely, but what I meant is that Californian’s are by reputation quite tolerant and, well, “liberal” in their thinking (which is why the vote is so painful for gays I suspect).
California already has the most generous civil unions law in the country so clearly they are sympathetic to the needs and wants of gay relationships. They have gone farther than any state that has not been forced by court action in securing protection for gay relationships.
Thus for a people who are already predisposed to gay rights to overturn the court’s decision means they must have been really upset at the court’s decision or the minority group seeking to go over their head by seeking marriage rights from the court.
In a sense, it is pretty insulting to the people. The court basically gave the people of California “the finger” and told them that what they have already done is not good enough and that THEY don’t get to decide this issue… WE (i.e. the Court) will.
Had this issue been decided legislatively (and I am under the impression it had been twice but was vetoed by Schwarzenegger… i don’t remember outrage over that!), I don’t think a follow-up initiative such as Prop 8 would have succeeded.
I think there is an instinctive reaction to new court-mandated rights. The smart course for gay marriage is to make their case through the legislative process or they can do another initiative in 2010 (although the thought of being bombarded with all those TV ads for 6 months should be depressing for all).
Also, the point of the article was that other minority groups should be worried but I don’t think most minority groups have to worry about propositions that “remove” rights because they are unlikely to “attack” (and therefore “piss off” what many view as a sacred institution, especially among conservative religious groups (including blacks and hispanics).
cd
November 28th, 2008
The state constitution is not required to even have an equal protection clause.
The country as a whole has been trying to operate without a constitutional equal protection guarantee for quite along time; pretty much since Nixon. Denial of it is the core doctrine of â€strict constructionism†and plenty of Republicans admit they would be happy to see Section 1 of the 14th Amendment repealed.
The Bush Administration has been the epitome of the spirit of no equal protection, i.e. doctrine of preferential adjudication and preferential enforcement at all levels. Be that denying blacks in Florida the vote, torturing war captives, keeping vegetative patients alive, selectively pardoning their cronies, selective prosecutions, ignoring contempt of Congress citations. They did all the antifairness/inequality the country would tolerate short of that which would lead to coordinated revolts or riots breaking out. And our conservative judiciary is therefore now regarded as the jurisprudential laughingstock of the West. The Bush v Gore majority misverdict in particular was a moral bankrupcy which Sandra Day O’Connor admits to off the record.
But in the big historical picture, realization of EP and Due Process and individual Immunities and Privileges Clause guarantees to all are the Constitutional dispute of our age. The two Parties fundamentally stand on opposite sides of that dispute.
Can you even have a meaningful court or judiciary without an equal protection guarantee? Without it there can be little or no just process of law. If you truly abide by it in practice, surely you can write it into your Constitution as a principle.
Every significant jurisprudence consistent with the Equal Protection/Due Process principle that couldn’t be avoided (Lawrence, Hamdan, Goodridge, In re Marriage Cases, the various death penalty carvedowns, Schiavo v Schiavo, strangely even conservative â€victories†like Heller v DC and dubious ones like Carthart v Gonzalez, Bush v Gore) were disasters to the conservative cause or ultimately cost the Bush/Republicans/conservatives so much in political support that they were backfires.
Bill, Californians will with very high likelihood overturn Prop 8 at the ballot box within 5 years. You, however, talk as if this year’s vote ascertained an eternal verity. Certainly the trend is obvious: 62% to ban in 2000, 52% in 2008.
The California Supreme Court has to write a verdict able to accommodate an eventuality of soon and permanent Prop 8 overturn by voters if it doesn’t want to contradict itself crudely over so short a span of time. About the only thing it can do is declare an intolerable contradiction and suggest ways to deal with it. One way would be for the state of California to not recognize or contract any marriages until Prop 8 is overturned. Another would be to recommend that the state of California declare itself unwilling and incompetent to prosecute violations of Prop 8, more or less a recommendation of jury nullification.
Suffolk University polling shows that in Massachusetts in early 2004, 45% sided in favor of gay marriage legalization. It took about a year for the issue to fully’burn out emotionally in the electorate and the Undecided 10% to tip from leaning against to leaning for. The current proportion in favor is 59% and continues to creep upwards. Opposition has fallen from 45% to 38% and is creeping downward.
Californian polling this year doesn’t look substantially different from Massachusetts in 2004. I’ll be interested to see what pollings there look like during the next couple of months. I’d bet on 5% to10% popular shift in favor of SSM in California within a year.
Bill
November 28th, 2008
By the way, as an aside, I found this sight while searching on Prop 8 information. When I started posting, I had not looked to even see what the site was about… I was just responding to a particular post. It wasn’t till today that I actually checked to see what this site was about.
I feel bad that some of my posts did not have the proper “tone.” I am used to posting in other forums where the debate is a little rougher.
I respect the purpose of the site and expect it will provide lots of valuable information for questions I have.
I will try to make my posts as respectful as possible and less polemical to conform to the goal of this site as stated on your about us page.
Assuming I am still welcome here of course :)
Bill
November 28th, 2008
cd:
“Bill, Californians will with very high likelihood overturn Prop 8 at the ballot box within 5 years. You, however, talk as if this year’s vote ascertained an eternal verity. Certainly the trend is obvious: 62% to ban in 2000, 52% in 2008.”
I think this is misleading.
In 2000, the initiative statute was worded exactly like Prop 8’s amendment. The the title was completely different. Prop 8 was worded such that it “eliminated rights of same sex couples to marry” which, while technically correct I suppose, is a much different vote. If you look at the research on Choice Theory, when presented with two different sets of choice that rationally yield the same outcomes but one set is worded negatively and the other positively, a dramatically different outcome results.
If Prop 8 had been titled positively, I think the vote would have been similar to 2000. There is no way to know for sure of course but I find it remarkable that, in the face of a Court decision (which is usually granted great deference) and a negatively worded ballot title and the mass turnout for Obama and a really bad year otherwise for conservatives that 52% voted for Prop 8. Thus, under the BEST possible circumstances you could have hoped for, you still lost.
“The California Supreme Court has to write a verdict able to accommodate an eventuality of soon and permanent Prop 8 overturn by voters if it doesn’t want to contradict itself crudely over so short a span of time. About the only thing it can do is declare an intolerable contradiction and suggest ways to deal with it.”
All the Court has to do is agree with the 3 justices in the minority in the original decision and declare that in light of the new evidence the people have provided them, they now have a clearer view of what the equal protection clause re: marriage now means.
The Court is entrusted with upholding and defending the constitution, not their precedents. The constitution NOW doesn’t read the same as it did THEN. There is no shame in “updating” their opinion in light of the latest amendment by the people.
I view it as like a puzzle with pieces missing and someone is guessing as to what some of the obscured parts actually are. Reasonable people could disagree. However, if some additional pieces are added to the puzzle to reveal some of the obscured parts, those in charge of “interpreting” the puzzle can speak more definitively about what they see.
I suspect you are right that Prop 8 will be overturned (if so, it is in everyone’s interest that it be done by a vote and not the court). People like me DO get burnt out. Its just like fighting over abortion. Technically, neither issue affects me directly but I consider them both important. But naturally, gays and women, who are more directly affected will have greater staying power I suspect. What you lack in numbers you make up for in intensity.
gar
November 28th, 2008
Actually, I’m of the mind that we should revise California’s initiative process so that it is not so easy to get things on the ballot in the first place. Someone with lots of money should not be able to put whatever on the ballot. I think that each issue should be vetted by the state legislature. Particularly constitutional amendments. I think this is how it works in other states. One should not be able to change a document as important as a constitution so easily.
Bill
November 28th, 2008
As “liberals” and “conservatives (actually, I am starting to think better terms are “modernists” and “traditionalists”) continue to talk as if in different languages, I have struggled with how to translate my thinking into terms that are persuasive to others.
I finally discovered an article by a professor of moral psychology that illuminated this for me somewhat. it is called “What Makes People Vote Republican?”. The author is a liberal atheist so it is not written by a right wing apologist. You may find it interesting.
http://www.edge.org/3rd_culture/haidt08/haidt08_index.html
The gist is that for liberals, morality — at least, social morality — is typically expressed in terms of individual rights and justice or more specifically:
1. harm/care
2. fairness/reciprocity.
Conservatives also use these terms but supplement them with 3 other concepts:
3. ingroup/loyalty
4. authority/respect
5. purity/sanctity
Studies apparently show that when responding to certain situations, liberals focus almost entirely on 1 and 2 but conservative pull from all 5 about equally.
It’s not hard I think to see how views on gay marriage differ in this framework. Most arguments for gay marriage fall entirely within the first two categories.
The point of the article is actually to show or suggest to liberals how to better frame their policy positions in moral terms that are accessible to conservatives so you may find it interesting. Obama, by the way, I think is superb at doing this.
The author has two rules of moral psychology that are also relevant to the debate over gay marriage:
1. feelings come first and tilt the mental playing field on which reasons and arguments compete
2. morality is not just about how we treat each other (as most liberals think); it is also about binding groups together, supporting essential institutions, and living in a sanctified and noble way
I think gay marriage advocates have the most success when they argue based on this second rule. This is the approach taken by both David Brooks and Andrew Sullivan. Both are essentially conservatives, although Sullivan is of course gay.
Bill
November 28th, 2008
Brady:
“Bill- saying that gay marriage is not a right outlined in the constitution is a red herring. The constitution does not enumerate rights one by one.”
Actually it DOES enumerate many rights: free speech, religion, press, assembly, guns, search and seizure, property takings, trial by jury, etc..
Of course, the court has utterly revised the original meaning of these rights but they are enumerated.
However, most of the concerns of the founders expressed in the bill of rights and subsequent amendments are not of much concern in today’s modern society so it would be very difficult for states to pass unconstitutional laws (according to original intent) today because the people would never support those laws. Thus, from my view, the Supreme Court really shouldn’t have much to do.
“In fact, if we only considered rights those activities that were expressley listed in the constitution, we wouldn’t have the right to do much. Driving, surfing the internet, even buying a snack certainly aren’t rights according to the definition of rights you have come up with. That doesn’t mean, of course, that we can decide that minority groups can or can’t participate in these events thanks to the constitution (state or federal) and it’s equal protection and due process stipulations.”
Actually none of the things you describe are constitutional rights. Why does everyone insist that all these rights exist that don’t exist?
In fact, some people are surprised to find out that VOTING is not even a constitutional right… it is left to states. The constitution simply forbids them from discriminating on gender, age (over 18), and race but they can otherwise forbid other groups from voting. I am not saying today’s court would allow that… only that THAT is what the constitution says.
Jeff
November 28th, 2008
I think that blacks should not be able to marry whites.
Women should not be able to vote but be just the property of their husbands.
I also think that divorce should be illegal and that adulterers should be thrown in jail.
After all, that IS the Christian way!
hopefully nobody thinks I am serious : )
Beth
November 28th, 2008
Jeff – you forgot- I think adulterers have to wear a big ‘ol red “A” sewn onto their cloaks (I mean before we tie rocks to ’em, throw ’em into the lake an see em sink). Ah. . . now THOSE were the good old days!! and no messy Bill of Rights to be concerned about, either!
Beth
November 28th, 2008
Bill – my dad was in the 104th Infantry Division and his battalion was the first of the western allies to come across a Nazi concentration camp. When I was a little girl, I asked him what there was to keep that from happening here and he answered “the Constitution”. Otherwise, a majority can always take away the rights of a minority. Bill, let the minority alone. There is enough pain and suffering in the world as it is. If two people want to get married to have that bond, then let them do it. Stop being cruel. They aren’t taking anything away from you.
Duncan
November 29th, 2008
I’d like to add my own view of this. The argument that marriage should be gender-blind as a matter of equal rights is difficult to resist: “a man and a woman” is sexism. The idea that you can distinguish between the genders but still treat them equally did not work for bans on interracial marriage.
But clear as that is, I would still prefer for it to be carried out legislatively, as has happened in Spain. It would expose the social conservatives for what they are to have them complain of the arrogance of elected representatives and the voters. And liberals could complain of activist judges overriding legislatures in cases like District of Columbia v. Heller.
It’ll happen well within a decade. Bill is wrong to say this year was the best of circumstances: it is a bad time for Republicans, but the initiative was not tied in voters’ minds to the party. (It is always wise to keep your cause separate of political fortunes.) As others have said, Obama may well have unwittingly damaged it by bringing out ethnic minorities that vote Democrat but are still conservative. The wording surely did not mean a difference of 10 percentage points.
Willie Hewes
November 29th, 2008
“Also, the point of the article was that other minority groups should be worried but I don’t think most minority groups have to worry about propositions that “remove†rights because they are unlikely to “attack†(and therefore “piss off†what many view as a sacred institution, especially among conservative religious groups (including blacks and hispanics).”
So is that how it’s going to be from now on? Don’t piss off the majority because otherwise they’ll take away your rights?
Huh.
Tell me something. If we assume that the majority is heterosexual (it is, by 90+ percent), why is it up to that same majority to decide what rights and privileges are good enough for gays and lesbians?
Why is it up to the heterosexual to say: “Well OK, we’ll allow you to have sex, but you can’t get married” and then, “Well, OK, you can have civil unions, but not marriage”
Who are you to tell anyone else whether they have a real marriage or not? Why don’t we give everyone the same rights so that nobody has to feel disadvantaged?
What other minority has had to fight until their equality was recognised by popular vote?
Louie
November 29th, 2008
Willie, the answer is none.
The era of slavery in the United States was not terminated by a popular vote of the majority.
The right of women to vote was not granted by a popular vote of the majority.
The right for couples of mixed races to marry was not granted by a popular vote of the majority.
The right for people of color to have full access to all of the same legal rights as white people was not granted by a popular vote of the majority.
Duncan
November 30th, 2008
Louie, slaves’ emancipation and women’s suffrage were passed by a majority vote, through the majority’s representation in the legislatures. (Though it was the victors’ majority in the former case.)
“I believe in the traditional vision of marriage as the union of two spouses, committed for life and raising children together, and I wish to see the end of archaic bans based only on gender that are preventing thousands of couples in this country from celebrating their love.” It sounds good as a campaign promise.
Patrick
November 30th, 2008
I often hear people say marriage is not a Right. If it is not a fundamental right, please tell me how does one lose the ability to marry? Even death row criminals retain the ability to marry. I cannot think of a single thing anyone can do that will prevent them from being able to be married. That sounds like a fundamental right to me.
Louie
November 30th, 2008
Yes, Duncan. You could see “the people” as being represented by those in Congress and Senate as having passed these measures by proxy.
But, I believe William was asking when any minority was granted their rights via a “direct” vote of the people.
For example, in California the legislature “TWICE” passed same-gender marriage legislation and it was Governnor Schwarzenegger that vetoed both attempts. Deferring the matter to the Supreme Court and/or voters to resolve. But the legislature are the voters, so then what, Mr. Governor!
In other words, in all of my examples the “people” did not cast a direct vote on extending rights to affected minorities.
Because if such a thing had happened, where there was a ballot proposition asking “Should the slaves be freed?” Yes/No, then you would have seen a radical outcome in certain parts of our country. Then what would people say, “What can we do!? It’s the WILL of the people! The people have directly spoken!”
People seem to forget, and schools seem to be doing a poor job of teaching our citizens, that the United States of America is NOT a pure democracy.
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