Amazingly, some of my friends and acquaintences appear shocked about the outcome of the Prop 8 appeal to the California Supreme Court. Seriously? Unhappy, I understand. But anyone expecting to win the battle on appeal after the state Constitution has been amended is misinterpreting the issues at stake.

California is among the few states in which the Constitution can be amended quickly and easily, by a simple majority on a referendum.
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And putting initiatives on the ballot is relatively easy as well, requiring either a vote of the state legislature or an initiative – basically a petition requiring a few thousand signatures. Unlike the earlier Proposition 22, which involved a statutory definition of marriage, Prop 8 involved an amendment. If you see the amendment as one that writes discrimination into the Constitution, you're not wrong. Regardless of how distasteful or discriminatory the amendment in question may be, the appeal asked the California Supreme Court to declare part of the Constitution unconstitutional. If that sounds possible, it isn't.

The fundamental job of the judiciary being to interpret the law in accordance with the Constitution, their hands are tied here. Hypothetically, let's say California voters voted for Prop 666, amending the Constitution to make it illegal for black people to ride public transit. Your liberal outrage aside there's absolutely nothing the Court could do about it. Once the Constitution is properly amended, it ceases to be possible for the Court to find it unconstitutional to discriminate on the basis of race on public transit in this example. The parts of the Constitution that contradict it (equal protection, etc.) don't matter anymore. They've been amended. The California Constitution is the basis of all law in California and once it is amended to allow explicit discrimination, that type of discrimination cannot by definition be unconstitutional. Unless the appellants can argue that the amendment was not properly enacted (it was) they are wasting their time in court.

Of course Prop 666 would be appealed to the Federal courts and found unconstitutional for violating the protections afforded in the United States Constitution, which is legally superior to any state constitution. Does that seem like a promising option with Prop 8? Anyone think the US Supreme Court is going to give a gay-friendly ruling on this one? Me neither.

Face it, the anti-gay marriage movement played this one perfectly. They picked the right venue (a state with a virtual drive-thru amendment process) and the right time – an era in which the pro-gay marriage side won't want to press its luck by appealing this to the Roberts-Scalia-Alito-Thomas court. They came up with a successful plan and enacted it. The take-home lessons here are two:

  • What is lost at the ballot box must be won at the ballot box. The state legal system can't help here and the conservative majority of the U.S. Supreme Court precludes that route.
  • There is a very goddamn good reason that the process of amending the U.S. Constitution is so difficult. It's difficult because it isn't supposed to happen regularly and it isn't intended to allow the legal codification of public opinion – especially the discriminatory kind. The Founders had their flaws, but they also had their moments. They realized that amendments are incredibly powerful things and they shouldn't be undertaken lightly. They can change, revoke, or supercede even our most basic, fundamental rights.

    We don't distribute rights by show of hands in this country, we enshrine those rights in our Constitution(s). The Constitution is supposed to endure, in marked contrast to the fickle swings of public opinion. That is why we make it so very hard to change. We don't want the fact that 75% of the public thinks gay marriage is wrong or slavery should be legal or the government should be able to promote Christianity to become the law of the land. It is hard to amend the U.S. Constitution specifically so that we can't legislate our prejudices. California saw fit to eliminate that safety valve and consequently the biases of the 51st percentile of voters becomes not only the law but the law by which all others are judged.

    They played it well and won. We lost. Don't sit around whining about it and expecting ridiculous legal arguments to produce courtroom victories based on what's "fair" or "right." Recognize the mistakes that were made and move on to the next (electoral) fight. Repeal or replace that amendment by the very same process used to bring us to this point and I think you'll find that the California Supreme Court, whose job it is to interpret the Constitution as written, will produce rulings more to your liking.

  • 9 thoughts on “MAD PROPS”

    • I agree that there was little hope of the court knocking this one down. The court already took its stand, and the voters came right back with a response. However, from what I've read in the press, the Prop. 8 opponents' legal arguments weren't absurd. Evidently, another CA quirk is that there are different routes to amending the state constitution and the voters can't impact fundamental rights. The court this time around said no harm to fundamental rights because same-sex couples are still entitled to everything a civil union provides, it just can't be called a "marriage." Of course, then what was that first ruling in favor of gay marriage all about? Here in WA, the state legislature just bolstered the rights associated with civil unions. The initiative to repeal has been filed. Depending on the result, I may be quoting the Simpsons even more than usual: "I've said it before and I say it again, democray simply does not work."

    • Your point is well taken and I should have been slearer: I don't consider the odds high that the court would consider the right to use the term "marriage" a fundamental right. The legal system has a history of clamming up once the legal groundwork to guarantee rights is present.

    • Thanks for explaining this, Ed. For all the news coverage I've seen on the issue, I've never understood exactly how happened.

    • Speaking as one of teh gays… Ed's right. This thing needs to get changed at the ballot box. Put it out there every year on election day.

    • Unfortunately, another part of the decision said they couldn't declare Prop 8 illegal, because it wasn't changing any existing situation…it was documenting the status quo . My point: we're screwed to undo this through another vote…that would need approval of the legislature.

      So, now we need to have the legislature declare marriage to be a right of all consenting human adults (perhaps limiting it to couples, perhaps not). And then we need the electorate to get that written into the constitution. Only then is the SCoC likely to support the new amendment.

      I'm not at all mad at the SC. I'm pissed that the mongoloid masses did this.
      I want to see the LDS church lose it's non-profit status. (I'm not sure I can see the logic in the KoC losing theirs).

      I want to see everyone who supported this given the slap in the face that my (then 5-year old) son gave to an older person who decided to argue for prop 8. My son, when asked why he was opposed to prop 8, answered:
      "Because we're not hateful bigots."
      (And yes, that was his diction, not mine.)

      Once Threadless comes back up, I'm making that a t-shirt:

    • dbsmall: I live in Utah, and lots of people here have (rightfully, IMO) been protesting the LDS Church's stance on the issue and their encouragement of pro-Prop 8 votes. But by the same token, LDS voters are nowhere near a majority of Californians. The LDS Church weren't the ones who passed the initiative, that was done by the good people of California all on their own. While I by no means agree with the actions of the Church in getting politically involved, placing the blame at the feet of one organization is unfairly ignoring the fact that if a majority of Californians weren't (as your son so wonderfully put it) hateful bigots, this measure never would have passed.

    • OliverWendelHolmslice says:

      As another one of "teh gays" I'm finding some silver linings in this decision:

      1) If the court had overturned Prop 8 then the right wing would have had a huge rally point about "activist judges" just as Obama is nominating a new Supreme Court Justice. The fact that the right wing still has no legitimate political traction right now is definitely a good thing.

      2) as Michael said, put this issue on the ballot box every year until we win. The tide of public opinion is turning on this issue. It's actually the perfect decoy issue to sucker the right wing in. Make the LDS and other right wing groups burn metric shitloads of money trying to oppose the inevitable.

    • Folks, I don't think we *can* just put it back on the ballot.
      Based on my cursory reading, I think we need to have the legislature enact a law that says it's legal, and *then* we can modify the constitution. The crushing blow here is that the SC essentially said that the constitution could have this language added, without legislature oversight, because gay marriage was not a "right" before.

      And Nick, while I appreciate what you say:

      1) The LDS church surely isn't solely responsible for prop 8 passing. But they bear some responsibility for incitement. And they violated their np rules by "campaigning from the pulpit" by policy.
      2) A majority of Californians are not hateful bigots. I still believe that. 52% of those who voted voted for prop 8. I'm going to go with "too lazy to vote" in a lot of cases. And yes, lazy people, I blame you, too.
      3) There are other np's who supported this (Knights of Columbus, for example), but I haven't seen evidence that they overstepped the bounds—there's a big difference between having a position, and between being the largest financier and producer of propaganda.

      (Vote on the shirt)

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