After Prop 8: Are You Next?

Q. When is a fundamental right not a fundamental right?

A. When it is protected by the California Supreme Court.

Only a year ago the California Supreme Court held that marriage was a fundamental right and quoted the U.S. Supreme Court to stress that:

One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

That was then; in yesterday's ruling on Proposition 8 the court held that a fundamental right can be stripped by a mere thirty percent of the electorate.

As Justice Moreno pointed out in his dissent, "under the majority's view, it is not clear what sorts of state constitutional constraints limit the power of a majority of the electorate to discriminate against minorities" Thus, the operative question today is not about the outcome of same sex marriage in California, but rather "who's next?"

It is fitting that the decision comes amidst the state budget crisis since the two events demonstrate how California's system of government is broken. Today's Supreme Court decision opens the door to a macabre resolution of both issues whereby voters could approve a constitutional amendment establishing a lottery system similar to the Hawthorne short story except that people would pay to select which disfavored group to discriminate against during the next year.

If Proposition 8 supporters could generate $40 million, surely there are people who would pay $5 to permit discrimination against whatever group they dislike. In addition, targeted groups would need to participate to make sure that they are not chosen. Such a lottery in California's polyglot culture could not only raise billions, but by putting people's rights at risk and forcing them to pay to protect them, Californians would value the fleeting rights afforded by the state constitution.

There are those who would say this could never happen in America. Let them come to Sacramento.

Yesterday's decision, in essence, made this a reality in California. Any one of us potentially could have our rights stripped while the California Supreme Court simply sat and watched. The only difference between reality and my outrageous lottery proposal is that in the former a free ballot replaces the lottery ticket, we still have a $22 billion deficit and 36 million Californians do not realize that they could be next.

Comments

[Chromehawk]

"As Justice Moreno pointed out in his dissent, "under the majority's view, it is not clear what sorts of state constitutional constraints limit the power of a majority of the electorate to discriminate against minorities""

My answer to Justice Moreno is probably what they mentioned to him in the back rooms.

A ) When you go up in front of the voters every 5 years, they can fire you. And KEEP firing your replacements until someone rules the way they want, and worse over rules your FIRST decision and declares it invalid along with all the marriages that occured to date.

B ) The people don't have to wait five years. They can recall you for any reason and every reason. The can recall you because they don't like that you step out of a chair with your right foot instead of left. And then recall every justice appointed in your place until THEY rule the way the people want them to rule. Including invalidating your first decision and invalidating all the marriages to date.

So, the only way you effectively COULD "... limit the power of a majority of the electorate to discriminate against minorities­..." is by declaring the recall process illegal against Supreme Court justices AND declaring that requiring us to go in front of the voters periodically where we can be "Rose Bird"ed ... is also illegal and a crime.

You think THIS is a revolt? See what happens if we tried THAT!!!!

[comraderoger]

Well, personally I move for voting on whether or not Mormonism is a real religion or not, and if not, revoking their tax exempt status in CA.

Or, how about banning Mormons from marrying in CA? Turn about is fair play, right?

[harriscrl3]

It has happened maybe not in the way of a law on the books but what would call Governors REJECTING stimulus and increases in unemployment insurance even though it would help their people.

Carol

[jamessch]

Hearings on the Uniting American Families Act are June 3rd!
Have you written to congress or posted?

[Stan-Musical]

Well, we see that there is not a constitutional right to same-sex marriage, if there is a constitutional amendment in place which defines marriage as 1 man and 1 woman.

There was a constitutional right to same in California as long as there was no such amendment in place.

It seems a stretch that we're going to have votes to set up a death lottery such as found in the Shirley Jackson story, just because of a vote which restored the previous definition of marriage in California.

Since California law on marriage matches the federal definition of marriage again, it's hard to see how this is a violation of our federal civil rights.

As far as the person here saying let's ban hetero divorce, it's precisely because of such smart aleck remarks that the serious debate about marriage rights doesn't advance farther. Because of such attitudes and people like Perez Hilton, critical masses of people don't take this issue seriously.

Where is a serious spokesman/leader for gay marriage? Where is the "Martin Luther King" of the gay civil rights movement?

If Perez Hilton and Rosie O'Donnell and other Hollywood people are leading spokespeople and the public faces of this movement, it's in big trouble with Middle America. The problem is that you need the support of Middle America to advance the agenda.

[LeftRight]

But since there was already writing in the Constitution which allowed for gay marriage (the equal protection clause) simply placing a ballot initiative to put discriminatory language into the state Constitution should have been ruled illegal by the court.

[Bennet Kelley - Huffpost Blogger]

Actually that is not correct and that is what makes the ruling so troubling. Too many this ruling was only incidentally about same sex marriage since - in the court's earlier ruling the court had held that there was a fundamental right to marry for same sex couples - the question on the table was could a mere majority of those voting abrogate a fundamental right under the name of a constitutional amendment. -- and unfortunately the answer was yes.

[Skott1]

Where is the "Martin Luther King" of the gay civil rights movement?

Uhh… his name was Harvey Milk and he was murdered by a straight guy who didn't appreciate gays speaking out for their rights.

[demfriend]

I have been very pleased by the amount of people unhappy with this rulling as it has become even more of an issue that the Supreme Court of Ca can determine a very small percentage of people can determine for so many what rights we do not have! It goes way beyond just the same sex marriage although it includes it, and is the rights of all can be taken while allowing "some to remain married leagally" Bizarre...­.

[SD Indy]

I still say that we should place a Constitutional amendment banning heterosexual divorce (with the exception of domestic violence - but the one seeking the divorce would be required to file domestic violence charges against the other.)

[LeftRight]

Darn it, you got to it before I could!

I was going to say that they should make divorce unconstitutional in California in 2010, and include language so that anyone ever divorced in California was now re-married to the person they had divorced..­...

[scott1607]

And if that happens watch the number of "domestic violence" cases to skyrocket.­.. our criminal courts are already backed up, can you just imagine how much more slowed down they would become? I guess you could argue lots of new jobs could be created to deal with all the "abused" spouses seeking to divorce...

[PlaceboStudman]

I know who's next.

Watch the Health Care Reform debates.

Note the complete lack of coverage of the protests a few weeks ago by disabled and our advocates who were protesting the removal of the Community Choice Act from Health Care Reform

I predict The disabled and medically fragile will be next

[Bennet Kelley - Huffpost Blogger]

Thanks for raising this - let us hope you wrong but not leave it to hope alone.

In writing this I was reminded of a Maurice Ogden poem - Hangman which reminded me that all of us can be in a disfavored group in some way. There is an animated narration of it on YouTube which I bet many of us saw in high school. http://www.youtube.com/watch?v=dEPSIAkmzAE