Box Turtle Bulletin
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 lobbyAugust 16th, 2010
Charles Cooper, for the Proponents, has filed his response to Ted Olson’s filing opposing a stay. And, as has been noted in the past, he appears to be using the spaghetti theory: throw enough against the wall and maybe something will stick.
This response seems to me to be taking an approach that has, up til now, not been given much emphasis: the “we’re just not ready yet” argument.
It was thus entirely reasonable for Californians, like the vast majority of people throughout the world, to favor preserving the traditional definition of marriage, as they continue to study the results of experiments with same-sex marriage that are now unfolding in a handful of states and foreign countries.
I think, however, that he may have difficulty in convincing a court that it truly was the Proponents intentions to study the results of those states and nations which do have marriage equality.
Most of this filing is just a repeat of what has already been said. But Cooper made one statement that – to my thinking – may not be to his advantage.
Baker v. Nelson, 409 U.S. 810 (1972), mandates reversal of the district court’s decision, see Stay Mtn. 25-26, and Plaintiffs’ attempts to evade that decision all lack merit. First, Plaintiffs claim this case is different because Proposition 8 “stripped” homosexuals of a right recognized by the California Supreme Court in the Marriage Cases decision. But if it was rational for California to adopt and maintain the traditional opposite-sex definition of marriage throughout its history, it was equally rational for California to restore that definition by enacting Proposition 8.
…
After all, the California Supreme Court’s 2008 decision invalidating the State’s 159-year-old definition of marriage was no more final than was the earlier California Court of Appeal decision upholding it. It was
reviewed and overturned by a higher tribunal—the People themselves.
Except that for the entire history of the state, the constitution was being violated by the state’s definition. That this violation was not recognized until 2008, did not make it less true. And the People did not overrule the Court’s opinion as to whether the constitution was violated, but rather changed that constitution so as to put in language that would give validation to the otherwise illegal definition.
And it was on notions similar to those advanced in In Re Marriages – but in the Federal Constitution rather than the state – that Judge Walker found similar violation. Using Cooper’s logic, if the People wish to be a higher tribunal, then they would need to do as they did in California and change the US Constitution.
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grendel
August 16th, 2010
Is there a link to the reply itself?
Adam
August 16th, 2010
“It was thus entirely reasonable for Californians, like the vast majority of people throughout the world, to favor preserving the traditional definition of marriage, as they continue to study the results of experiments with same-sex marriage that are now unfolding in a handful of states and foreign countries.”
If this argument for restricting the rights of gay people is valid for California now, then I don’t see what prevents it from being valid for any state or country at the point they recognised those rights.
Civil rights should not be subject to a successful pilot: the rule of law demands their existence, however inconvenient or distasteful they may be to particular individuals, and it ought to be the role of civil authority to recognise those rights and ensure they are respected.
homer
August 16th, 2010
The portions of the reply that I read just seemed extra snarky- something a spoiled brat would write when they didn’t get their way.
L. Junius Brutus
August 16th, 2010
60-year-old definition of marriage. It was only in 1948 that the Supreme Court of California struck down its ban on interracial marriage.
Burr
August 16th, 2010
Was there a single ad or other communication from the Prop 8 campaign that remotely said anything about a “wait and see” approach?
Jason D
August 16th, 2010
since when is amending the state constitution part of ANY “wait and see” strategy??
For that matter, do we ever have wait and see legislation? Like, make something legal/illegal for 6 months just to see what happens? Cause I don’t recall ever hearing about that.
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