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Court Must Weigh Tyranny of the Majority in Ruling on Prop 8
By Byron Williams
Recently, a friend lamented that if those opposed to Proposition 8 had worked as hard before it passed as they have after voters approved the initiative, banning same-gender couples from marriage, the outcome may have been different.
Maybe, but we're certainly witnessing a public civics lessons.
Since Prop. 8 passed, there have been widespread protests throughout the state and nationally. Attorney General Jerry Brown has already urged the California Supreme Court, whose ruling for same-gender marriage put Prop. 8 on the ballot, to once again decide whether the voter-approved ballot measure is constitutional.
Brown's request will most likely fast track Prop. 8 so that the justices will render a decision on its constitutionality sooner rather than later.
For those wondering why the protests seem to persist after the passing of Prop. 8, from the political theorist perspective we may be witnessing a backlash to the tyranny of the majority.
The concept of tyranny of the majority has its roots in Plato's Republic; it is used in reference to democracies and majority rule. The actual term originated with Alexis de Tocqueville; it is a criticism of any scenario in which decisions made by a majority would place its interests above a minority's interest to the point that majority will becomes "tyrannical."
I am quite certain that proponents of Prop. 8 would not consider their view as tyrannical, but such issues should never be confined to the micro contours of a single matter but rather the macro outcome. Does it suffice for society if the majority wants to be selective with its application of equal protection under the law?
As John Stuart Mills opined, "Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities."
Simply being in the majority opinion can lead people to believe they are impervious to the type of arrogance that robs one of self-reflective impulses that can lead to an abuse of power. As de Tocqueville argued in "Democracy in America," majority rule carries with it an implied moral authority that "there is more intelligence and wisdom in a number of men united than a single individual."
This is the popular, but erroneous notion that gives rise to the "judicial activism" argument, especially when a ruling by the judiciary branch of government goes against what may be viewed as the popular opinion.
I have received countless e-mails justifying support of Prop. 8 based on the majority rule of Prop. 22 in 2000 and that the state Supreme Court caused this problem by "legislating from the bench."
This is an elementary understanding of our democracy that has most likely embraced the juvenile orthodoxy of conservative talk radio. But the Framers were aware of the potential problems associated with the tyranny of he majority, or as some would benignly call the "will of the people."
Left to its own unbridled interests, the potential for the majority to abuse its power is as great as any other group.
James Madison wrote in Federalist Number 10:
"The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression."
Byron Williams has served as pastor of the Resurrection Community Church in Oakland since 2002. As the only pastor/syndicated columnist in the country, Williams writes a column which appears in 10 publications and several progressive web sites across the country.
Madison goes on to write, "Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens."
How does the sphere extend in relation to Prop. 8? This is the tension that the state Supreme Court must now negotiate.
It is certainly impractical to assume, as Madison would argue, there can be a society comprised of homogenous opinions and interest. But the court will now be charged to find the moral line that distinguishes between majority rule and the tyranny of the majority.
Comments
I can't believe how ignorant people are to the facts. Prop 8 does not deny homosexuals one single right!
Don't believe me. Read the California legal code that establishes a Domestic Partnership which says that "Registered domestic partners shall have the same rights,protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they
derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=00001-01000&file=297-297.5
Domestic Partners are required to complete the same California tax forms as a married couple. http://www.ftb.ca.gov/forms/RegDomPrtnr/RegDomPrtnr.shtml
CalSTRS, California teachers’ retirement and pension funds provide the same rights to Domestic Partners. http://www.calstrs.com/HELP/faqs/DomesticPartnerfaqs.aspx
Domestic Partners do not receive the benefit filing a Federal Joint Tax Return but Prop 8 would have done nothing to change that. For purposes of federal tax law and benefits, Defense of Marriage Act of 1966 (DOMA) established federal definitions of (a) “marriage” as a legal union only between one man and one woman as husband and wife: and (b) “spouse” as a person only of the opposite sex who is a husband or wife. Because of DOMA’s provisions, if a state extends marriage to same-sex couples, same-sex partners would not be treated as spouses for federal tax and employee benefit purposes. http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3396.enr:
Posted by: Brent at December 1, 2008 12:48 PM
Brent: You are silly. Prop 8 denies me the right to get married. It denies me the dignity and stature that comes along with marriage. You have the right to enjoy these benefits, I do not. If you think DPs are the same, YOU should participate in a Domestic Partnership and then tell me it is equal to marriage. Think before you speak, you make YOURSELF look like an idiot.
Posted by: Brian at December 1, 2008 01:03 PM
Brent: You are silly. Prop 8 denies me the right to get married. It denies me the dignity and stature that comes along with marriage. You have the right to enjoy these benefits, I do not. If you think DPs are the same, YOU should participate in a Domestic Partnership and then tell me it is equal to marriage. Think before you speak, you make YOURSELF look like an idiot.
Posted by: Brian at December 1, 2008 01:04 PM
Pretty weak, if you ask me.
So is it a "tyranny of the majority", then, that we are not allowed to marry six year olds? Three or four spouses at once? Asparagus plants?
Is it "tyranny of the majority" that only females are allowed insurance coverage for pregnancy?
Is it "tyranny of the majority" that only females can get pregnant?
No?
Then how, please, is "gay marriage" any different?
No society in history has ever recognized marriage as a union between two members of the same sex, until the recent advent of the "gay rights" agenda.
Why should we simply surrender in the face of the strident demands of some newly-discovered "class" to enjoy some newly-discovered "right", if that right is in fact a wrong according to universal human legal precedent, universal culural tradition, biology, and natural law?
You can huff and puff all you like.
We have considered the arguments and voted twice to retain the tradition of marriage, and nothing is going to change that.
Knock yourselves out and all, but remember you heard it here first.
Prop 8 will be upheld.
Posted by: Rick DeLano at December 1, 2008 02:56 PM
Unrestrained breeding was appropriate when the planet was new and unpoulated. It is wholly contraindicated now, To say the least.
Is a heterosexuality deemed a "lifestyle"? Can we say that heterosexuals have some sort of an "agenda"? Do you honestly think that gay people sit around and consciously PLOT and scheme to overhtrow the world? No - as far as I'm aware, most of uis repsect people's choice and we simply want respect and freedom to occupy OUR little corner of life without molestation, retribution, ostracism, and condemnation. Nothing MORE than anybody else wants. if you belong to the dominant culture, you really have to stretch to gain any real perspective, and I would say most members OF the dominant culutre are ill equipped and unqualified to comment on what it's like or how it feels or what is RIGHT for the subdued minority.
One thing that really gets ME is how in FL, they put forth the notion that "gay people are more prone to alcohol and drug abuse, depression, etc" as a specific REASON why they shouldn't be allowed to adopt. I've seen the same drivel from religious people who claim that gay people are inherently unhappy. Did it ever occur to anyone (members of the dominant culture, it should be pointed out)that the whole REASON that some gay people are "unhappy" and miserable and have a tendency towards substance abuse IS in fact because people treat us as second class citizens and becasue we are held in contmpt, ridiculed, despised, spat upon, beaten up, marginalized and scapegoated constantly???
You hate us, and you expect that there are no repercussions from that hatred?
It absolutely blows me away that we are treated like DIRT and then BLAMED for being treated like dirt. What a cruel and very TWISTED (and sick) thing. Isn't that double jeopardy?? being blamed BY your oppressor FOR something your oppressor DOES! Sounds like the way slaveowners used to treat their slaves, and also like classic spousal abuse.
I've been treated like S**t my entire life , and I am tired of it. Full stop.
Posted by: Hans at December 1, 2008 04:26 PM
Unrestrained breeding was appropriate when the planet was new and unpoulated. It is wholly contraindicated now, To say the least.
Is a heterosexuality deemed a "lifestyle"? Can we say that heterosexuals have some sort of an "agenda"? Do you honestly think that gay people sit around and consciously PLOT and scheme to overhtrow the world? No - as far as I'm aware, most of uis repsect people's choice and we simply want respect and freedom to occupy OUR little corner of life without molestation, retribution, ostracism, and condemnation. Nothing MORE than anybody else wants. if you belong to the dominant culture, you really have to stretch to gain any real perspective, and I would say most members OF the dominant culutre are ill equipped and unqualified to comment on what it's like or how it feels or what is RIGHT for the subdued minority.
One thing that really gets ME is how in FL, they put forth the notion that "gay people are more prone to alcohol and drug abuse, depression, etc" as a specific REASON why they shouldn't be allowed to adopt. I've seen the same drivel from religious people who claim that gay people are inherently unhappy. Did it ever occur to anyone (members of the dominant culture, it should be pointed out)that the whole REASON that some gay people are "unhappy" and miserable and have a tendency towards substance abuse IS in fact because people treat us as second class citizens and becasue we are held in contmpt, ridiculed, despised, spat upon, beaten up, marginalized and scapegoated constantly???
You hate us, and you expect that there are no repercussions from that hatred?
It absolutely blows me away that we are treated like DIRT and then BLAMED for being treated like dirt. What a cruel and very TWISTED (and sick) thing. Isn't that double jeopardy?? being blamed BY your oppressor FOR something your oppressor DOES! Sounds like the way slaveowners used to treat their slaves, and also like classic spousal abuse.
I've been treated like S**t my entire life , and I am tired of it. Full stop.
Posted by: Hans at December 1, 2008 04:27 PM
Tyranny can come in many forms. Tyrrany of the majority is one. Judicial tyrrany is another. You have explained the former. The latter occurs when a court claims for itself the right to make laws.
A justice takes an oath to "protect and defend" teh constitution, not to protect and defend minorities from majorities. The reason for this is obvious. Every group on the short end of a law is a kind of "minority."
It is NOT the job of a court to "draw the moral line that distinguishes between majority rule and the tyranny of the majority." In fact, the courts are not to draw moral lines at all; they are simply there to interpret the constitution.... the PEOPLE'S constitution... the same constitution that CREATED the judiciary function. The court is not ABOVE the constitution, it is a servant of the people.
The constitution did not fall out of heaven like the ten commandments. It was created by the people. The constitution represents fundamental law, preventing future temporary majorities from violating those fundamental laws. In that sense, the constitution serves as an anchor to prevent future temporary majorities from deviating from those fundamental laws.
To claim tyrrany of the majority, you would have to argue that the current people of California are acting differently than past majorities in denying gay marriage. That of course is preposterous. The people of California are more tolerant of gays than they have ever been.
California IS a little odd compared to most states in that it appears to be highly distrustful of judicial tyrrany, so much so that it allows the court to be overridden with a simply 50% vote on an initiative. It did this 30+ years ago when it reinstated the death penalty with the court incorrectly ruled that the death penalty violated "cruel or unusual" punishment. It did this now with gay marriage.
Ultimately, EVERY "minority" depends on persuading the majority that it is indeed a "minority" and that its claims justify a change in law. To date, gays have not been able to persuade a majority of Californians that there exists a right to same sex marriage (gays are not denied the right to marry, only limited in their choices to the same as everyone else...).
Just as the court upheld the amendment process that reinstated the death penalty, they really have no choice but to uphold Prop 8.
Posted by: Bill at December 1, 2008 05:44 PM
I don't know anyone who voted for prop 8 who is interested in taking away rights from gays and lesbians--it is about protecting marriage and the future collision of church and state that comes with such a broad sweeping change of social policy. What about Rev. Ake Green (Sweden)who was threatened with jail time for preaching against homosexuality in his congregation? What about traditional christians rights? Our founding fathers never wanted a specific religion favored by government but irreligion has become the new state religion.
Posted by: leslie tanner at December 1, 2008 09:04 PM
I wonder how heterosexuals would feel if homosexuals had the opportunity to take rights away from them with an anonymous ballot. Because, yes, Brent, we have been denied rights that have been afforded to us by the Constitution of the United States of America.
It is not about "making laws" Bill, it is about upholding the Constitution of the United States that says we are ALL to be treated equally under the law. The Supreme Court did its best to protect the minority from being ill-treated by the majority in this way, but the majority has decided, once again, to force its beliefs down the throats of the minority and decided which parts of the Constitution is to be upheld and which parts are not.
Separation of church and state is there for a reason: there is no legal or moral reason to deny human beings who also happen to be homosexuals the right to marry each other; only a religious one. And this is evidenced by all of what has been said in support of Prop 8.
One can only hope that the courts -- state and federal -- will finally figure out that just like when women were not allowed to vote or own property and just like when Black people were slaves, not allowed to vote, not allowed to marry, and not allowed to own property, homosexuals should be as protected and have the same constitutional rights as every other American living in the US.
But just between us, I have the secret hope that one day, a minority like homosexuals can have the opportunity to vote for or against the rights of the majority like heterosexuals; and we can decide on your happiness and rights as you have decided about ours.
Posted by: Parker at December 2, 2008 06:53 AM
I just want to state that I think this discourse is most certainly the most conscientious I've read on this subject - and I've read a lot of them. This is the level of discussion I wish we could all have on this subject. Having said that, and noticing that this discourse I love seems to have steered itself toward some basic philosophical constitutional/legal arguments, as I think it probably most rightly should, and truly appreciating and respecing the arguments made by Hans, I would just like to interject the notion of the "Letter v. Spirit" debate. For example, at the founding, the Federalist Party argued for a looser interpretation of the Constitution, granting Congress broad powers in keeping with the spirit of the broader purpose of some founders (notably including the Federalist founders' purposes). The Federalists would have represented the "spirit" aspect. In contrast, the Democratic-Republicans, who favored a limited federal government, argued for the strict interpretation of the Constitution, arguing that the federal government was granted only those powers enumerated in the Constitution, and nothing not explicitly stated; they represented the "letter" interpretation.
Modern Constitutional interpretation also divides on these lines. Currently, "liberal" or "progressive" scholars advocate a "spirit"-esque interpretative strategy, although one grounded in a spirit that reflects broad powers. "Originalist" or "Textualists" advocate a more "letter"-based approach, arguing that the Amendment process of the Constitution necessarily forecloses broader interpretations that can be accomplished simply by passing an amendment.
Who will win this ancient debate? Which way will our lives be steered?
Posted by: Bill P. at December 2, 2008 09:05 AM
Sorry I cut my previous comment a little short. I was trying to get to the notion of "intent". In other words, to Bill's points (I think I previously mistakenly referred to Hans) about "chicken vs. egg" (constitution vs. laws), don't we have to look at what was the "intent" of the Constitution (either CA or U.S.)? And, wouldn't we agree that "fairness" and "equality" would have been part of their intent?
Statutory law or statute law is written law set down by a legislature or other governing authority such as the executive branch of government in response to a perceived need to clarify the functioning of government, improve civil order, to codify existing law, or for an individual or company to obtain special treatment. While these enactments are subordinate to the law of the whole state or nation, they are nonetheless a part of the body of a jurisdiction's statutory law.
While I'm not particularly knowledgable about the CA Constitution, the U.S. Consitution has historical basis and several of the ideas in the Constitution were new, and a large number of ideas were drawn from the literature of Republicanism in the United States, from the experiences of the 13 states, and from the British experience with mixed government. The most important influence from the European continent was from Montesquieu, who emphasized the need to have balanced forces pushing against each other to prevent tyranny. (This in itself reflects the influence of Polybius' 2nd century BC treatise on the checks and balances of the constitution of the Roman Republic.)
Therefore, doesn't this then mean that a part of the Constitution, namely, those Articles outlining the judicial branch, which is meant to provide "checks and balances", are intended to be utilized in our constitutional process and isn't that what the CA Supreme Court will be doing, namely, "balancing" the letter of the law versus the spirit of the law? And, doesn't that then bring us back out of the philosophical constitutional/legal arguments being made within this discourse and back to whether the CA Supreme Court will be (possibly) determining which direction is "morally right"? And, if so, I believe the enactment of Propsition 8 is on the wrong side of history and not the direction our state/country should be headed?
Posted by: Bill P. at December 2, 2008 10:44 AM
Furthermore, for the record, I thought I would just add a little snipet from the CA Supreme Court's Ruling in May, 2008:
"First, we must determine the nature and scope of the “right to marry” — a
right that past cases establish as one of the fundamental constitutional rights
embodied in the California Constitution. Although, as an historical matter, civil
marriage and the rights associated with it traditionally have been afforded only to
opposite-sex couples, this court’s landmark decision 60 years ago in Perez v.Sharp (1948) 32 Cal.2d 7114 — which found that California’s statutory provisions
prohibiting interracial marriages were inconsistent with the fundamental
constitutional right to marry, notwithstanding the circumstance that statutory
prohibitions on interracial marriage had existed since the founding of the state —
makes clear that history alone is not invariably an appropriate guide for
determining the meaning and scope of this fundamental constitutional guarantee.
The decision in Perez, although rendered by a deeply divided court, is a judicial
opinion whose legitimacy and constitutional soundness are by now universally
recognized.
As discussed below, upon review of the numerous California decisions that
have examined the underlying bases and significance of the constitutional right to
marry (and that illuminate why this right has been recognized as one of the basic,
inalienable civil rights guaranteed to an individual by the California Constitution),
we conclude that, under this state’s Constitution, the constitutionally based right to
marry properly must be understood to encompass the core set of basic substantive
legal rights and attributes traditionally associated with marriage that are so integral
to an individual’s liberty and personal autonomy that they may not be eliminated
or abrogated by the Legislature or by the electorate through the statutory initiative
process. These core substantive rights include, most fundamentally, the
opportunity of an individual to establish — with the person with whom the
individual has chosen to share his or her life — an officially recognized and
protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.
As past cases establish, the substantive right of two adults who share a loving
relationship to join together to establish an officially recognized family of their
own — and, if the couple chooses, to raise children within that family —
constitutes a vitally important attribute of the fundamental interest in liberty and
personal autonomy that the California Constitution secures to all persons for the
benefit of both the individual and society.
Furthermore, 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. We therefore
conclude that in view of the substance and significance of the fundamental
constitutional right to form a family relationship, the California Constitution
properly must be interpreted to guarantee this basic civil right to all Californians,
whether gay or heterosexual, and to same-sex couples as well as to opposite-sex
couples."
Therefore, I think us opponents have a pretty good shot. We'll see.
Posted by: Bill P. at December 2, 2008 12:52 PM
prop 8 does deny homosexuals rights if your in love with someone would you think its right of the government to pass a law that stated you couldnt get maried who is anyone to deny that right? Its not like there gonna hurt any one and if they want to get married why should anyone say no and stop them my best friend moved to england because of prop 8 so dont say prop 8 dosent deny rights because it does.
Posted by: Tatiana at December 2, 2008 03:57 PM
Hi Bill:
Thanks for your thoughtful posts, but in quoting the Supreme Court decision overturning the earlier Prop 22, you are neglecting the fact that the question of the constitutionality of same sex marriage has been settled in California.
In California, the constitution states that marriage is valid and recognized only between a man and a woman.
This is why the current Supreme Court challenge is on different grounds- specifically, that Prop 8 is not an amendment, but instead a revision, to the Constitution.
The chances of such a challenge succeeding are perhaps comparable to those of a noonday's snowball surviving a Death Valley Fourth of July 'til sundown.
Firstly, the Court declined to hear the very same argument when a case was filed with it before the election.
Secondly, Prop 8 restores a status quo ante that extends back to, and beyond, the beginning of the Republic itself. It introduces nothing new, and specifically limits itself to fourteen precise words.
To call this a revision is laughable, and the handwriting is on the wall with the refusal of Justice Moreno (one of the original four votes for gay marriage on the Court) to vote in favor of even hearing the challenges to Prop 8.
She has clearly signalled that the laws of California have been duly complied with, and the People have revised THEIR Constitution in perfect accordance with their sovereign right to do so.
Since the original Court decision overturning same sex marriage bans was 4-3, and since Justice Moreno is a swing vote here, it is a very safe bet indeed that Prop 8 is a lock to be upheld.
I will further predict that, after the huffing and puffing, there will be no 2010 ballot initiative on this question.
The gay marriage forces would lose by a larger margin next time, and they know it.
Lastly, you quote extensively from the May decision's citation of Perez. For another view, here is Professor William W. Bassett of San Francisco University Law School, commenting on that very passage:
"The California Supreme Court has not simply admitted previously disqualified persons to a single institution of marriage, as it professes by citing Justice Roger Traynor's entirely inapposite yet otherwise prescient 1948 anti-miscegenation case, Perez v. Sharp. Perez concerned not a ban on interracial marriage simply; it was preeminently an attack on white supremacy. All parties were not in the slightest bit confused about marriage being between one man and one woman. In fact, all cases cited as precedent for the meaning and scope of the "right" to marry involved persons who were capable of marriage, that is, were involved in the relationship of man and woman. There is no case precedent whatsoever of a "right" to marry vindicated for a same-sex couple."
Posted by: Rick DeLano at December 2, 2008 10:29 PM
Hi Bill:
Thanks for your thoughtful posts, but in quoting the Supreme Court decision overturning the earlier Prop 22, you are neglecting the fact that the question of the constitutionality of same sex marriage has been settled in California.
In California, the constitution states that marriage is valid and recognized only between a man and a woman.
This is why the current Supreme Court challenge is on different grounds- specifically, that Prop 8 is not an amendment, but instead a revision, to the Constitution.
The chances of such a challenge succeeding are perhaps comparable to those of a noonday's snowball surviving a Death Valley Fourth of July 'til sundown.
Firstly, the Court declined to hear the very same argument when a case was filed with it before the election.
Secondly, Prop 8 restores a status quo ante that extends back to, and beyond, the beginning of the Republic itself. It introduces nothing new, and specifically limits itself to fourteen precise words.
To call this a revision is laughable, and the handwriting is on the wall with the refusal of Justice Moreno (one of the original four votes for gay marriage on the Court) to vote in favor of even hearing the challenges to Prop 8.
She has clearly signalled that the laws of California have been duly complied with, and the People have revised THEIR Constitution in perfect accordance with their sovereign right to do so.
Since the original Court decision overturning same sex marriage bans was 4-3, and since Justice Moreno is a swing vote here, it is a very safe bet indeed that Prop 8 is a lock to be upheld.
I will further predict that, after the huffing and puffing, there will be no 2010 ballot initiative on this question.
The gay marriage forces would lose by a larger margin next time, and they know it.
Lastly, you quote extensively from the May decision's citation of Perez. For another view, here is Professor William W. Bassett of San Francisco University Law School, commenting on that very passage:
"The California Supreme Court has not simply admitted previously disqualified persons to a single institution of marriage, as it professes by citing Justice Roger Traynor's entirely inapposite yet otherwise prescient 1948 anti-miscegenation case, Perez v. Sharp. Perez concerned not a ban on interracial marriage simply; it was preeminently an attack on white supremacy. All parties were not in the slightest bit confused about marriage being between one man and one woman. In fact, all cases cited as precedent for the meaning and scope of the "right" to marry involved persons who were capable of marriage, that is, were involved in the relationship of man and woman. There is no case precedent whatsoever of a "right" to marry vindicated for a same-sex couple."
Posted by: Rick DeLano at December 2, 2008 10:30 PM
Hi Bill:
Thanks for your thoughtful posts, but in quoting the Supreme Court decision overturning the earlier Prop 22, you are neglecting the fact that the question of the constitutionality of same sex marriage has been settled in California.
In California, the constitution states that marriage is valid and recognized only between a man and a woman.
This is why the current Supreme Court challenge is on different grounds- specifically, that Prop 8 is not an amendment, but instead a revision, to the Constitution.
The chances of such a challenge succeeding are perhaps comparable to those of a noonday's snowball surviving a Death Valley Fourth of July 'til sundown.
Firstly, the Court declined to hear the very same argument when a case was filed with it before the election.
Secondly, Prop 8 restores a status quo ante that extends back to, and beyond, the beginning of the Republic itself. It introduces nothing new, and specifically limits itself to fourteen precise words.
To call this a revision is laughable, and the handwriting is on the wall with the refusal of Justice Moreno (one of the original four votes for gay marriage on the Court) to vote in favor of even hearing the challenges to Prop 8.
She has clearly signalled that the laws of California have been duly complied with, and the People have revised THEIR Constitution in perfect accordance with their sovereign right to do so.
Since the original Court decision overturning same sex marriage bans was 4-3, and since Justice Moreno is a swing vote here, it is a very safe bet indeed that Prop 8 is a lock to be upheld.
I will further predict that, after the huffing and puffing, there will be no 2010 ballot initiative on this question.
The gay marriage forces would lose by a larger margin next time, and they know it.
Lastly, you quote extensively from the May decision's citation of Perez. For another view, here is Professor William W. Bassett of San Francisco University Law School, commenting on that very passage:
"The California Supreme Court has not simply admitted previously disqualified persons to a single institution of marriage, as it professes by citing Justice Roger Traynor's entirely inapposite yet otherwise prescient 1948 anti-miscegenation case, Perez v. Sharp. Perez concerned not a ban on interracial marriage simply; it was preeminently an attack on white supremacy. All parties were not in the slightest bit confused about marriage being between one man and one woman. In fact, all cases cited as precedent for the meaning and scope of the "right" to marry involved persons who were capable of marriage, that is, were involved in the relationship of man and woman. There is no case precedent whatsoever of a "right" to marry vindicated for a same-sex couple."
Posted by: Rick DeLano at December 2, 2008 10:31 PM
Rick,
You don't know very much history have you. Your same augments were used to justify blacks from marrying whites of other minorities marrying whites.
This ballot measure denies not only gays but same-sex couples rights they normally had enjoyed. This means that domestic partners, common-law partnership, etc are invalid because the state only recognizes marriage between a woman and a man. Therefore any domestic relationship not including marriage is now null and void. Domestic laws protecting a spouse from abuse are null and void.
This is only the start because what if a voter’s initiative of no religious marriages shall be valid in the state of California or that marriage between a white woman and a man of color appear on the ballot. It can happen because of this law and it will.
The Jim Crow laws were constitutional in many of the states but the federal courts rule them unconstitutional. Those bigots use the exact same arguments that you have used. Don't believe me look it up. You are trying to justified bigotry because of the majority rule. Considering that the state of California has a population estimated around 36,756,666 and 7,001,084 voted yes which means really only 11% of the population is making the decision for the other 89% of the state. Not only that but only 13,402,566 voted which comes to 36% which is not even half of the population in the state of California. Majority rules not even.
To me this means that a small majority of the state’s population is trying to justified bigotry by the use of the might makes right. This is not going away, this issue WILL be OVERTURN in 2010 if it gets that far. Why because of bigotry of these few individuals will push not only to have same-sex marriage annulled but continue on their campaigns that have took place in other states.
What? What do I mean?
This has happen in every major state that passed similar law.
All relationships from domestic partners to common-law are not to recognized by the state. This means that these same people will make sure that the state revokes all benefits for common-law, domestic partnership, etc because they are not marriage. Next they will attack the universities demanding that health care benefits will only cover married couples. At the same time criminal lawyers will say domestic laws only apply to marry couples and therefore cannot be applied outside of marriage.
Then let’s talk about your fellow bigots who might have a child in a same-sex relationship and if that child dies they can come in taking any children and any property that the couple have stating that other person has to no rights because they were not married. Judges will rule in favor because only marriage between a man and women are recognized.
Since the state can only recognize marriage between a man and a woman then the hospitals will not allow the other spouse in because they are not family or married to this person. They will not have any rights to take care of this person and if this person has bigots for parents never see this person. Judges will uphold the parents’ rights because in the state only marriage is recognized.
This is how evil that this amendment is for it not only attacks gays but same-sex couples as well. These people that pass this law want homosexuality to be illegal and protections taken away. They justified it because their religion demands it.
As to same-sex marriages not being legal anytime in history. Sorry you are very wrong there. Actually Ancient Egypt, Celtic people, Vikings, and Native American cultures acknowledge same-sex couples as joined in the same manner as opposite sex couples. Again you should do some checking in history because it might just teach you something. Like humanity.
Posted by: Lee at April 3, 2009 08:40 AM
Lee:
Guess you better start lecturing the Supreme Court on your version of "humanity", since 6-1 isn't looking very good for y'all.
PS: The Yankee voters don't much like having had this jammed down their throats either.
New Hampshire is 49-41 against pseudo-marriage, according to a Daily Kos poll, which means it's probably five or six points worse for your team than that.
This will probably flip the NH Legislature Republican and cost the Governor his job.
In Maine they have already qualified enough signatures for a ballot challenge.
And we all know what happens when this question goes to the ballot.
Combine all this with the confirmation of my post months back, above, that the pseudo-marriage crowd would huff and puff and read the polls and abandon a 2010 challenge, and I have to say.
It looks like it's over in Cali, and it looks like Cali has turned the tide.
You know what they say- as goes California, so goes the rest of the USA.......
Posted by: Rick DeLano at July 23, 2009 02:39 PM
Lee:
Guess you better start lecturing the Supreme Court on your version of "humanity", since 6-1 isn't looking very good for y'all.
PS: The Yankee voters don't much like having had this jammed down their throats either.
New Hampshire is 49-41 against pseudo-marriage, according to a Daily Kos poll, which means it's probably five or six points worse for your team than that.
This will probably flip the NH Legislature Republican and cost the Governor his job.
In Maine they have already qualified enough signatures for a ballot challenge.
And we all know what happens when this question goes to the ballot.
Combine all this with the confirmation of my post months back, above, that the pseudo-marriage crowd would huff and puff and read the polls and abandon a 2010 challenge, and I have to say.
It looks like it's over in Cali, and it looks like Cali has turned the tide.
You know what they say- as goes California, so goes the rest of the USA.......
Posted by: Rick DeLano at July 23, 2009 02:44 PM
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