A post by Maynard
So a man in a robe has the power to tell the 4,618,673 California voters (a supermajority of over 60%) who passed Proposition 22 that their votes don’t count.
This is par for the course. See my previous post, “Exit the Voters, Enter the Judges”.
When Robert Mugabe nullifies an election in Zimbabwe, we cry out in pious indignation. But when it happens here, our tyrants are toasted as enlightened liberators. If the people didn’t want this to happen, they shouldn’t have voted “wrong”.
In a sane world, judges such as these would be immediately removed from office for gross incompetence and corruption. Their abuse of power would be regarded as disgraceful; the stuff of dictatorships. Instead, creeping tyranny is celebrated as a normal part of the political process. The voters don’t run the show; the voters are merely an obstacle.
I understand the concern about activist judges. Is 60% really an overwhelming majority….especially in the context of restricting the rights of fellow Americans based on your opinion?
Perhaps the problem is a breakdown in the performance of our legislators prioritizing lobbyists over constituents? Call me crazy, but U.S. gay-ness attitudes are changing rapidly. Would the referendum have a similar majority if it occurred today? Possibly not.
What this really threatens is to fuel the constitutional amendment against gay marriage in November. It’s not good for anyone to have this decision made outside a legislature, gays included.
It’s a sad day when we are seeing posts on Tammy Bruce that support Americans restricting the freedoms of fellow law abiding, adopting, parenting and tax paying citizens. I understand the problem you’re having with the means however the results in this particular scenario give me the creeps.
Its a good thing the states didn’t wait for the people of the states to change their minds about slavery.
http://en.wikipedia.org/wiki/Slavery_in_the_United_States
A line from Wikipedia “The Southern Baptist Convention formed on the premise that the Bible sanctions slavery and that it was acceptable for Christians to own slaves.”
I sure am glad the government didn’t listen to such comments back then.
Having worked for both the executive and legislative branches of government, I hate judges. Off the bench some of them can be perfectly pleasant and reasonable people, but as a rule with only limited exceptions, on the bench most of them behave like– and seem to think they actually are–little kings and queens, despite the fact that a trained monkey could do most of their job.
I hate to disagree with my kewl bud, Maynard, but…
“Brown v. Board of Education of Topeka” was also in complete opposition to the will of the majority.
Thankfully, we don’t live in a democracy; we live under a Constitution that is supposed to protect individuals from the encroachments of government law, even law decided by the majority.
The Court determined that gays’ treatment under the law was not equal to straights’. This upsets people who do not view “gays†as a group, but view same-sex partnership as an action and an ongoing choice. Whether it is a choice is irrelevant: your political ideology, party affiliation, religion, and location of residence are also “choicesâ€; that doesn’t give the majority the right to dictate them for you.
The argument that churches would have to recognize and perform same-sex marriages if they were legal is also a canard. Divorce and remarriage have been legal in every state for decades. The Catholic Church still recognizes neither. (They aren’t a democracy either.)
As a gay Californian, I’m glad that the court has ruled in our favor. I don’t think it oversteps bounds. It is their job to interpret the constitution and that is what they did. I hope, Tammy, that you will join me in voting down a Prop that undoes this ruling — and then the voters will have a final say on this matter.
I am pleased that the Governor will be on our side 🙂
“”Brown v. Board of Education of Topeka” was also in complete opposition to the will of the majority.”
But Brown rested solidly on the original intent of the 14th Amendment, which the Court had undermined with its segregationist activism in Plessy. Brown was not an activist decision. This is. The California court did not reject the tripartite framework of standards of review that federal case law has applied with respect to the 14th, and used it with respect to its state-law analog. Race is special: it was the reason behind the 14th and so classifications by race get strict scrutiny. Classifications by gender get intermediate scrutiny. Classifications by anything else get “rational basis” scrutiny. The court didn’t reject that for analyzing claims under its state constitution: rather, it insulted the people of California, the sovereign from whom the court’s only power flows (and from NOWHERE else), by effectively saying that the voters could have behaved only in an irrational way. That is beyond its remit to do.
“…we live under a Constitution that is supposed to protect individuals from the encroachments of government law, even law decided by the majority.”
The federal constitution has nothing to do with this case. This was solely about the California Supreme Court interpreting the California Constitution of 1879. Let me make it perfectly clear that I, in fact, actually support gay marriage–to be adopted democratically rather than by judicial fiat–but the idea that that document enshrines a right to gay marriage that mysteriously went unnoticed for 130 years doesn’t even pass the laugh test. And it’s why the opinion wastes reams of paper saying this isn’t an activist opinion. If it weren’t, the court would’ve had no need to pretend otherwise.
Word to Dave J !
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
“SEC. 7. (a) A person may not be deprived of life, liberty, or
property without due process of law or denied equal protection of the
laws[…]
(b) A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.
Privileges or immunities granted by the Legislature may be altered or
revoked.”
I always thought that tripartite classification system was a bunch of garbage anyway. Why is race more protected than gender? Word to your mother, but we’re all still friends 🙂 I forfeit the balance of my time in the interest of not getting banned for monopolizing the comments.
Ashley, I’d agree that the court’s action would be legit if the people had voted to re-institute segregation or something equally egregious. But would you seriously argue that a failure to institutionalize gay marriage is the moral or legal equivalent of Jim Crow? The state’s offence is either non-existent (especially considering the same-sex partnerships options) or at worst minor and technical; certainly the offence of nullifying an election is a much greater transgression against our democratic principles, and a much greater threat to our civil rights, than the lack of gay marriage. If you go to my previous post on elections and judges, you’ll see that my concern is general: We’ve come to the point where it’s not uncommon that the loser of an election goes to court to have the election overturned. Principled people of all political inclinations should be troubled by this.
Hold on a sec, ashleymatt! We already have “encroachments of government law” in terms of marriage, and have had for a very, very long time. We require the “consenting partners” to be of a certain age, and we only allow each partner to have only one spouse at a time. We also do not automatically recognize marriages performed in foreign countries (I found this out when applying for a visa for my African wife).
The California Supreme Court sidestepped the issues I listed and overturned the ban for no other reason than they did not like it. That should terrify anyone, regardless of “political ideology, party affiliation, religion, or location of residence”.
This little nugget from AP is especially frightening:
“In contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights.”
In other words, Chief Justice Ron George believes that the Court’s majority is so much more enlightened and intelligent than the unwashed heathen who opposed it in the ignorant past. That is his basis for overturning the law. Using George’s reasoning, I have a question: Do we owe the child-abusing polygamist cult that has been in the news recently a big apology for infringing upon their “lifestyleâ€? How do we decide what constitutes a legally-protected “loving and long-term committed relationship with another person and responsibly to care for and raise childrenâ€?
The question is not about gay/lesbian marriage. That is a canard. I don’t have a problem with a legislature passing laws and enacting them that would legalize this. I do have a huge problem with the unhealthy itch some judges have for adjudicating issues based upon their own perceived intellectual superiority. Actions like today diminish respect for the judicial system – and it should.
I felt that Mayor Newsom overstepped his bounds as mayor by conferring marital status on same-sex couples and the California Supreme Court has done the same thing in their ruling.
My concern with this ruling is where does this stop? In this case, because I happen to be a lesbian, the mayor’s and the court’s actions could technically benefit me personally. What if some politician or judge did the same thing and it impacted me negatively? Perhaps a certain type of prescription would be banned on moral grounds or the Catholic Church is deemed a cult and my mother is barred from Mass. How would this be different than what Mayor Newsom and the court did?
Either we want a judiciary that interprets the laws or one that makes the laws. We can’t have it both ways.
For years, there were two arguments that were used to advocate acceptance of homosexuality:
1. “What happens between two consenting adults in private is of no concern to anyone else”
2. “You can’t impose your morality on someone else”.
At this point, both of those arguments are being ignored by advocates of same-sex marriage. Obviously, they don’t want it to be private and they are trying to impose their morality on everyone else. Legally, this is a non-issue; civil unions can create all the same rights and privileges. The emphasis is on the word “marriage” because they want to force everyone to accept their lifestyle.
Mwalimu makes an important point: the same-sex marriage advocates always talk like this is the one and only restriction on marriage and everyone else is free to whatever they like. There are numerous restrictions on marriage: you can’t marry your sibling, your can’t marry more than one person, you can’t marry your parent, you can’t marry someone else who already married. If the court decides that marriage is completely independent of sexual orientation, what are they going to say when I declare that my sexual orientation is polyamorous and I therefore have the right to marry two women?
That the courts in California pre-empted the opportunity for a popular vote comes tangent to the Massachusetts situation. Massachusetts legislators, however, on any opportunity to address the matter defaulted out of the issue.
This process saved the individual solons the issue of explaining to their constituents their vote either way.
Frankly, as a gay man, same-sex marriage is not a matter that inspires me. I see it as the recent gay generations trying to buy themselves ‘Stonewall Minutes’ at fundraisers and otherwise keeping victim-hood alive. (Of course, I see no reason for reparations over past slavery either.)
I’m with Ashleymatt.
How much popular support did the 14th amendment get when it was initially implemented? Did the people vote on it? Wouldn’t those who implemented the 14th amendment at that time be considered activists by today’s standards?
“How much popular support did the 14th amendment get when it was initially implemented? Did the people vote on it?”
The people have never voted on amendments to the federal constitution. That’s because that isn’t the way the federal constitutional amendment process works.
“Wouldn’t those who implemented the 14th amendment at that time be considered activists by today’s standards?”
Those who adopted it, or those who implemented it once it had been adopted?
Dave J wrote the idea that that document enshrines a right to gay marriage that mysteriously went unnoticed for 130 years doesn’t even pass the laugh test. I agree. Who else is uh, sleeping, in the words of the Constitution not yet realizing they too have the right to marry? A single daughter and her widowed mother? Who says marriage is only for people engaging in sex? (Stop laughing you married people.)
This is why I love this blog. I need to come back more often, I really do. This issue is being discussed elsewhere and of course there are flame wars tearing apart other blogs, or simple minded, one-issue thought patterns posing as arguments.
No…this is not a simple thing and we need to draw a line somewhere. Should that line bar homosexual marriage? Nope, but it should bar those other pairings mentioned above.
Now, all that being said, I will fight for any church that refuses to marry a couple against the will of the church and I feel that the federal government should also back those churches in that refusal to marry. If the Episcopalians want to marry folk, go for it, but the Catholics should be allowed to refuse.
Maynard, part of the Supreme Court’s job is to determine if laws are constitutional — whether the laws come from the legislature or through initiatives of the electorate. Unconstitutional laws have to be struck down or the court didn’t do its job.
The supreme will of the voters is embodied in the State and US Constitution, so if a voter initiative conflicts with the constitution and is struck down, the voters have still prevailed.
Demkr, the California decision was based on the California Constitution. California case law does not recognize intermediate scrutiny — only strict scrutiny or rational basis.
The court didn’t spend all its pages saying it wasn’t an activist opinion — it went through case law and precedents.
A few of the key issues are — should sexual orientation be a protected class? Is marriage a California constitutional right? Do civil unions meet that right or are they separate but? Does the name matter?
The decision went through the case law to define the criteria and the scope of the key questions.
Most of the comments here don’t indicate that people have actually read and considered the arguments — just news reports.
I agree with some of the Court’s arguments and disagree with others, but I’m reading the decision and all the case law as a lay person. I also read all of the Amicus Curia briefs and all the papers submitted to the court.
Most of the discussion here and elsewhere centers on whether it’s ok for judge’s to strike down voter initiatives (of course it is) and whether one method for achieving a goal is better than another (the canard of judges vs. voters or the legislature).
I think there are more meaningful things to discuss — is sexual orientation similar enough to other protected classes to warrant strict scrutiny? Other protected classes with strict scrutiny include: race, religion, alienage (being a foreigner).
Because that determinations is at the crux of the Supreme Court’s decision.
Best,
Gib