The California Supreme Court’s Illogical Prop 8 Decision

 

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Tuesday, May 26, 2009 will go down as an eventful San Francisco day, sunny, and yet dark, and one that saw a lot of people marginalized who didn’t want to be. But then, who does. Before I turn to who said what, and who got arrested, I stick my head right into the belly of the beast, the California Supreme Court’s decision.


Today, in first upholding Proposition 8, the voter-approved initiative to make same-sex marriage illegal that passed in November 2008, and yet protecting the 18,000 same-sex marriages that were done before the passage of the initiative, the California Supreme Court successfully stood logic on its head. I’ve just read the Court’s entire 167-page decision, and while I understand the reasons given by the majority of justices (six supporting the decision, one against it and even then the six judges that agreed were not perfect in their union) I’m concerned with the logic behind them.


To cut to the chase, the Court has placed the 18,000 same-sex marriages in a legally questionable second-class status of rights that, even though the Court claims to protect their rights under marriage, didn’t even consider if those rights would be maintained if the couples elect to divorce or remarry each other for the sake of the children they have.


First, even though I’ve read the full document, I encourage you to do so as well. Even if you think you can’t understand what’s there, challenge yourself, read it, talk about it with your friends. And most of all learn from it.


A Three-Pronged Decision


The California Supreme Court based its decision on three considerations, if the initiative was a constitutional amendment or revision, the validity of the initiative process itself, and if Proposition 8 itself is retroactive, applying to existing same-sex marriages.


In upholding Proposition 8, The California Supreme Court tried to get itself out of a legal pickle created in early 2008, when it protected same-sex marriages in a case called “The Marriages Cases”. To recap, the Court determined that marriage was not limited to a man and a woman.


But later in the same year, Californians passed Prop 8, which earned 52 percent of the vote. Then, California Attorney General Jerry Brown challenged Prop 8 in the California Supreme Court, most famously. (Brown used the observation that “natural law” was over the California Constitution, and since Prop 8 eliminated the rights of a group of Californians, it was in violation of the “unalienable rights” granted by the California Constitution and “natural law”. In today’s decision, The Court wrote that while Brown’s argument was creative, and I would add logical, it was “without merit.”)


And there we have the Court’s pickle: upholding their own decision protecting existing same sex marriages, and yet protecting the initiative process of which Proposition 8 is a part.


In the Decision the majority of judges argue that the initiative process itself is part of The California Constitution and thus can’t be considered something that alters and is outside of the California Constitution. Moreover, the Court writes that Proposition 8 itself is not a constitutional revision, but just an amendment. Why? Because the Court’s majority claims it only concerns marriage and doesn’t call for a large number of word additions or changes. The decision outlines a number of case examples where the Court’s decision backed the idea that an initiative was an amendment and not a revision to the California Constitution, as some of Prop 8’s attackers have claimed.


Finally, the Court majority asserts that even though the framers of Prop 8 may have intended otherwise, the way it was written itself prevents it from being retroactively applied. Thus, existing same sex marriages are upheld.


But here’s where the problem starts, even if one agrees with the other aspects of the majority’s decision. The Court writes “a retroactive application of the initiative would disrupt thousands of actions taken in reliance on The Marriages Cases by these same-sex couples, their employers, their creditors, and many others” (p. 134) and then goes on to mention that such would result in “undermining the ability of citizens to plan their lives according to the law as it has been determined by this state’s highest court.”


But I argue in upholding Prop 8 and existing same-sex marriages, the Court has placed the rights of the existing married couples in disarray and damaged the California Constitution in the process: it’s not for all Californians. If same-sex married couples chose to divorce, they can’t then marry someone else of the same sex, or remarry the same person even if it would be to the benefit of the family they established! There’s no evidence in the Court’s decision – and I looked for it - that this was taken into account.


The dissenting opinion by Justice Moreno focused on the stripping of rights to a minority group, but since the reality is that being gay or straight is really more fluid than fixed and the choice of the individual, the Court’s decision impacts a much broader group of the population and one that’s hard to quantify.


Peaceful Protests in San Francisco


The decision left a lot of people scratching their heads in and around San Francisco City Hall and the California Supreme Court building just next door. While a peaceful protest complete with pre-arranged arrests amassed on Van Ness Avenue between the City Hall and Davies Symphony Hall, a large press conference was held in the South Light Court in City Hall.


California Supreme Court There, many of the lawyers who worked to combat the passage of Prop 8 shared their observations with the audience. San Francisco City Attorney Dennis Herrera, who played a key role in the battle against Prop 8, said I’m disappointed... I think the Court in my view focused on procedure rather than arguments. And that fundamental rights are part of the debate.” He said it was back to the ballot box, a view shared by the Court itself in the decision issued today.


A Shameful Intellectual Display


The Court’s majority decision was shameful, to say the least. I told someone that people will develop an intellectual argument to support their raw emotions, and this California Supreme Court did just that. The Court’s emotional bent is to protect what was decided by it and by the voters in the initiative process rather than challenge it, even if such an alteration would protect the full state constitutional rights of all Californians.


Some conservatives have interpreted the California Supreme Court’s decision as the Court defining marriage as between “a man and a woman”, but that’s wrong. The Court is protecting the initiative called Proposition 8 which claims marriage is between a man and woman because it interprets the California Constitution as consisting of these constitutional amendments and the Court has stated that its job is to interpret the state constitution and that it’s not above it. That distinction is important because should voters pass a new initiative that overturns Prop 8, the Court would be legally inclined to protect it as well.

Jerry Brown urges court to scrap Prop. 8 - Inside Bay Area

Jerry Brown orders scrapping Prop. 8 - Inside Bay Area: “SAN FRANCISCO—California Attorney General Jerry Brown changed course on the state's new same-sex marriage ban Friday and urged the state Supreme Court to void Proposition 8.
In a dramatic reversal, Brown filed a legal brief saying the measure that amended the California Constitution to limit marriage to a man and a woman is itself unconstitutional because it deprives a minority group of a fundamental right. Earlier, Brown had said he would defend the ballot measure against legal challenges from gay marriage supporters.
But Brown said he reached a different conclusion "upon further reflection and a deeper probing into all the aspects of our Constitution."
"It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative," he said in an interview Friday night. "Based on my duty to defend the law and the entire Constitution, I concluded the court should protect the right to marry even in the face of the 52 percent vote."”

--This is Jerry Brown's finest hour. Period.

Prince Was Pro-Prop 8 - Rocker Turning Christian Conservative

In what has to be the shocker news item of the day, Gawker reports the famous Rocker Prince has said he's against homosexuality. He's reported to have said this:


When asked about his perspective on social issues—gay marriage, abortion—Prince tapped his Bible and said, “God came to earth and saw people sticking it wherever and doing it with whatever, and he just cleared it all out. He was, like, ‘Enough.’


Funny, because a number of people thought Prince was Gay; not me. But I'm just saying. Still Prince seems to fall in line with the majority of voting African Americans in California who supported Prop 8. I write that because Prince did not say how he voted on Prop 8.

The Prop 8 Issue - Being Black and Gay Are Not The Same

This video will be misunderstood by some just for its title. I ask you to listen to what I say. I'm am against California Proposition 8. I've made videos to show the World how stupid and hateful the people who back the initiative can be. But what does bother me is the discovery that of all groups, African Americans voted more for it than against it. Why? I think one reason is that the message those who were against Prop 8 put out was off-putting to many who are Black. While I agree that gay marriage is a civil rights issue, one can't then make the cognitive leap and say that Blacks and Gays share the same path and past. The reason is simple: if I walk down the street you already have made up your mind how you're going to adress me because of my skin color. That's not true if the person's Gay -- you can't tell by looking. The bottom line is civil rights for all -- but the message that's sent by "No on 8" seems to say that if a person's straight White and male, they're normal. No one Black wants to hear that.

Black support of Prop 8: Leonce Gaiter weighs in

Leonce Gaiter in HuffPo on black support of Prop 8:

According to a SurveyUSA poll, 58% of black voters support Proposition 8, which would enshrine irrational fear and rank bigotry into the California Constitution in order to deny gays the right to marry. Black support is 10% higher than support of any other ethnic group. This is ironic, considering that in striking down the law
banning same sex marriage, the California Supreme Court cited the landmark 1967
civil rights case Loving vs. Virginia that struck down the prohibition of interracial marriage.

A majority of California's voting African-Americans seem blind to that irony, however. They see no kinship to their own past as a reviled minority whose sexual touch toward a single white man or woman would sully the entire "race" of American whites--just as legally sanctioning the sexual touch of same sex partners would so sully heterosexuals' unions that they will... what? Seek immediate divorce? Abandon their children to the streets? Suffer mass orgasmic dysfunction?

58% of the black voting population sees no irony in accepting a "separate but equal" status for gays despite the fact that the Supreme Court freed us from just such subjugation with Brown vs. Board of Education; without it we would still be classifiable as second class citizens.

We see no slippery slope in enshrining hatred and bigotry against a specific group into our ruling document--our California Constitution. If we can enshrine the second-class citizenship of gays with respect to marriage, why not the second-class citizenship of blacks with respect to education, or Hispanics with respect to citizenship itself? Someone will always hate you with equal vociferousness to your hate for someone else. It's simply a matter of convincing enough to do so--as has been done in convincing 58% of blacks to support the same kind of irrational hatred that kept us in figurative shackles for most of the last century.

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