Prop.8 Ruling Means California Supreme Court must Rule on its own Relevance
This week I received a wonderful article written by C.J. Hirschfield for the Piedmont Post that placed a human face on marriage equality. It was a post political piece in that it emphasized the hope and the fear that many same-gender couples, who are already married, hold in these otherwise uncertain times in light of the ongoing Proposition 8 legal battles.
It's quite challenging to write a post political piece in a climate where politics has essentially taken all the oxygen in the room. There can be no compromise on an issue that debates the relevance of equal protection under the law.
However one feels about same-gender marriage, the fact is California, through court rulings, politics, and the initiative process has backed itself into a corner where the only outcome can be, as others have articulated, a zero sum game.
The key legal issue debated before the State Supreme Court is whether Prop.8 simply amended the state Constitution or a revision. If the initiative amended the Constitution, then it stands. If the initiative revised the Constitution, it must be approved by a 2/3 majority of the Legislature.
This certainly seems like an issue that could have been ruled on when the court struck down Proposition 22, granting same gender couples the right to marry last year. Whatever the California Supreme Court ultimately decides, there can only be winners and losers, which would ironically include the court.
There are several problems embedded should the court uphold Prop.8. First, it would mean the majority, however slim, becomes the ultimate arbitrator for what is just in the state.
The majority rule argument, or the will of the people, is erroneously portrayed in the public conversation as synonymous for what is right in a democratic society.
Having the numbers on one's side makes them impervious to wrong. Or as law professor Ken Starr argued before the Supreme Court in support of Prop. 8, it is allows for the people to make bad decisions.
With more than seven million votes cast in the November election, the majority consists of a 52%-47% margin. The latest Field poll indicates those in opposition to Prop. 8 hold a slim 48-47 advantage.
Simple majority rule is a binary decision-making process that is unable, and in most cases unwilling, to examine the limits of its own power, which if unchecked can ultimately lead 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."
This raises the question: Who gets to decide what's tyrannical? In our form of government that role has been given to the courts. They alone have the authority to call balls and strikes on the ideals that the people have committed themselves.
But the court has already ruled on this matter. Were it not for the mulligan granted to the electorate known as the initiative process, same-gender marriage, as an issue, would be fait accompli.
Therefore, if majority rule were preeminent, would a court ruling that upholds Prop.8 create the unintended consequence of diminishing the role of the state's highest court, making it selectively subordinate to the will of the people?
I say selectively subordinate because of the resources required to place an initiative on the ballot does not allow for universal application. Upholding Prop.8 makes the state Constitution inherently contradictory--equal protection, except in those cases when the majority objects.
This is a dangerous possibility for any democracy, especially one that holds such a slim majority. But the margin of the majority is irrelevant if the court assumes its role.
The victory margin of Prop.22, which the court overruled last year, was greater than the margin in Prop. 8. But that was back in the days when the California Supreme Court was unquestionably the highest court in the state, secondary to no other voice(s).
Byron Williams is an Oakland pastor and syndicated columnist. He is the author of Strip Mall Patriotism: Moral Reflections of the Iraq War. E-mail him at byron@byronspeaks.com or visit his website: byronspeaks.com
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Finally, sixth, today the Christian church is being tested by God to see if it is truly following the teachings of Christ. Do you really love your neighbor as yourself? Do you even love your enemies? Are you really doing unto others as you would want to be done to you? Do you value humanity more than institutions? Are you willing to be with those whom society and the religious pius have rejected? Was the law made for man or man for the law? There is no marriage in heaven, folks. Christ said so himself. He never married, and preferred celibacy to the marriage state. His Apostles and disciples abaonded their wives in order to spread the Gospel. Don't make "Marriage" the new Golden Calf.
Fourth, the word "marriage" is an English word. It is not sacred. English is not a sacred language. If the Christian fanatics who are so hung up on words want to preserve a word for the union of a man and a woman and claim it is sacred, then they should sanctify the Hebrew word "נישואין " and allow only opposite-sex couples to use that word since most Yes on 8 Christians are still clinging to the Old Testament Hebrew for life.
Fifth, since most Yes on 8ers claim marriage is about procreating and raising children:
1. couples with no children are invalid until offspring is produced;
2. couples who adopt with no offspring of their own are not legitimate families;
3. couples who do have offspring, once those children are grown and become adults, the before mentioned couples are no longer validily married because they have fulfilled their obligations.
First I want to say that not ALL Christians agree that same sex marriage is wrong. Just because some Christians yell louder doesn't mean they are in the right, it just means they're loud. Nor do they represent the entire Christian community.
Second, our country was not set up for the majority to rule. We are a Republic, not a Democracy. Think of it this way: A married couple - man and wife, have 5 kids. The kids want to do drugs. So the kids tell the parents, "We took a vote, and all of us want to do drugs. We're the majority so we win." 5 to 2 is the outcome. So the kids get to do drugs? No! The parents, acting like the Supreme Court, know something isn't right about taking illegal drugs. So, despite the vote, the parents override the vote.
Third, the argument for same-sex marriage is for two consenting adults to be legally married by the government in order to enjoy the same rights and privileges given to those of opposite-sex couples. They have established a relationship in which both are dependent on each other. They are only asking that the government acknowledge it and allow them to be each others dependent in a legal manner.
I predict the will of the people will prevail here.
Acorn should have thought twice about thier voter registration efforts to elect Obama. The irony of that simple fact alone pleases me more than the fact Prop 8 passed.
What was stated during the hearings was that upholding Prop 8 allows the Majority (a slim majority) to take away rights from a minority--or affect a minority in a way that doesn't affect the majority. It's true that it doesn't affect Heterosexuals if Homosexuals aren't allowed to marry, but the funny and ironic thing is that it doesn't affect them if they ARE allowed to marry, so I don't understand the problem. I don't understand why Prop 8 exists in the constitution if it's only legal value is the majority's power to restrict the rights of the minority.
Can someone explain this to me please?
Watching the hearing, it seemed like the Judges were getting tied up in technical strings and this Op-ed simplifies the root of the problems at hand:
"Who gets to decide what's tyrannical? In our form of government that role has been given to the courts...But the court has already ruled on this matter...Therefore, if majority rule were preeminent, would a court ruling that upholds Prop.8 create the unintended consequence of diminishing the role of the state's highest court, making it selectively subordinate to the will of the people?"
and especially:
"Upholding Prop.8 makes the state Constitution inherently contradictory--equal protection, except in those cases when the majority objects."
I hope the court realizes this, but please, someone tell me why upholding Prop 8 makes sense?
pmayor: I am sorry, you are misguided. Marriage is a right. The CASC declared last spring that marriage is a right and that gays have to be afforded this right. So your argument is moot. When the highest court in the state declares there is a right found in the state constitution and declares that a particular group must be afforded this right, the people DO NOT have the right to override the court. So whether you want to admit mariage is a right is not relevant. But just because you don't admit it is doesn't make it go away. Sorry!
i have an honest and serious question. If homosexual couples could get married, only not have it called marriage, but some other word, with all the same rights, would that be acceptable?
While I have no problem with them sharing in the misery, I think people will have a hard time allowing anyone but a man and a woman in the definition of marriage.
Is that the argument at hand? The actual word that is used, or the rights it entails?
No.
It would NOT be acceptable.
And why on EARTH should it be?
So you are arguing that by law, you demand same sex couples be called married, as opposite sex couples?
Although I have no problem with that, good luck. We have another 100 years of religious nut-jobs to overcome before that one happens. The only thing I can keep the religious folks from in my life is the tax base. Everywhere else, they rule by some fantasy voodoo that the vast majority of this country follows.
If you can figure out how to stop the brainwash, you have a soldier in the wings.
See Byron Williams's Profile
If that were indeed the argument, what a tragic commentary on the human condition, given the amount of resources spent, the time and energy expended, not to mention the unjust suffering of the 18,000 couples who wait in limbo for the court's ruling to have it come down to a single word that describes the union?
Mr. Williams, tragic commentary on the human condition is generously spread throughout this "wonderful" world we live in. A disgusting reality for those of us that feel we were born into a world of Neanderthals. I just have to do a reality check now and then to understand exactly what people are debating about.
Seems lately people debate things that on the opposing side have no relationship to what is actually evidenced by facts or even common sense. This is one of those cases.
With all of the knowledge, wealth and wisdom we have at our disposal, the continuation of this ignorance is a tragic commentary all by itself.
Don't worry, we will win. Although it may take a few years for evolution to weed out some voters. Even if that is the case, I think couples that are already married will have all the rights they have now.
Thank you!
It's both. It wouldn't be appropriate to call a marriage of one person from a foreign country to a US Citizen a "Union of Foreign Partnership," thus making it legally "wrong" for them to refer to each other as husband and wife instead of Foreign Partners. Same with inter-racial marriages. It clearly creates a separation.
Beyond that--I haven't heard a sound argument as to why it should not be called marriage.
The reason why the writer of this very one-sided article doesn't think that "majority rule" should apply is because he incorrectly believes that marriage is a "right." Marriage is not a right. In fact, society has every right to decide exactly what "marriage" means, and that means, by definition, majority rule, just like in a political election.
And the poster who proclaims the importance of "equality promised to every single citizen" doesn't understand the concept of marriage. Marriage isn't about a single citizen, it is about a union created by two citizens, and it is the right of voters to decide to uphold a traditional definition of which union should be recognized as a married couple.
If you or the court want to deny citizens the power of their vote, then you might as well throw out the concept of democracy, because it is meaningless.
See Byron Williams's Profile
First, I find it humorous when someone is critical of a opinion piece by citing it as one-sided!
The reason I don't believe that majority rule, as did Madison, is an absolute is because a cursory examination of American history reveals the consistency that the majority has been wrong, and it required the courts to recognize this fact. As to your point about marriage not being a rite, if that were true then the government has no busy involved in the process. It is the tax dollars of heterosexuals as wells as gays and lesbians that support civil marriages. For you to be right in your analysis you would also have to support the elimination of gays and lesbians from being taxed given they are denied a service that their tax dollars support.
pmayor should check themself before they wreck themself.
The Supreme Court ruled LONG AGO that marriage is, in FACT, a RIGHT.
Stop spreading ignorance, pmayor.
My comment stating 'every single citizen' was not in reference to someone's marital status, dweetie.
Perhaps a refresher course in reading 101 is in order?
And herein lies the problem.
Uneducated folks like YOU are minding MY business.
That will change.
While I applaud your article, I don't believe that the Supreme Court will overturn Prop 8.
Apparently their own political agendas are more important to them than the equality promised to EVERY SINGLE CITIZEN in our Constitution.
Watching the hearings only displayed that these judges don't have anywhere NEAR the amount of courage it would take to stand up for JUSTICE.
They will uphold Prop 8. But I believe they will also keep the 18,000 marriage performed intact.
And so begins lawsuit after lawsuit in the state of California.
It only leaves me wondering...
The American Heterosexual. Such an odd creature. They spent nearly 50 million 'protecting' marriage. Yet most of their public schools can't even afford books for the students.
They spent nearly 50 million 'protecting' marriage. And yet, our divorce rate, particualrly among the 'religious' continues to soar over 50%.
They spent nearly 50 million 'protecting' marriage.
And yet NEVER has ANY initiative been on a ballot restricting the way 50%+ of them abuse and degrade the institution of marriage.
They spent nearly 50 million 'protecting' marriage.
And yet, NO religious group is pouring money into Propositions that would remove rights of Heterosexuals to abuse each other, cheat on each other, marry each other at the Vegas drive-thru for 24 hours before divorcing.
So I ask the American Heterosexual this:
How do you expect to 'protect marriage' against 'the gays' when you don't even protect it from YOURSELVES.
The American Heterosexual's hypocrisy is PALPABLE across this nation.
Wonderful Blog..
The court cannot decide to uphold Prop 8. They would be allowing an open door policy to take away any right of any minority.
The court would be declaring themselves obsolete.
The court would be saying that everything they said last spring didn't matter.
It was funny that the court also stated last spring when a suit was issued to prevent Prop 8 from being placed on the ballot, that they would wait for the outcome and then rule, and then in the oral arguments this month stated that they may not have the power to overturn prop 8. If they were going to wait and then try to hide behind a "lie" that they do not have the power, because of political pressure, they were either seeking to appear like they are looking at all sides before they rule or trying to find any reason to not have to decide in a new area and define clearly that the majority cannot take away a right of a minority. Either way, they look like they are afraid to make a stand and were just hoping that Prop 8 wouldn't pass so that they would not have to make this decision.
Ken Starr only helped the opposition's case. He stated that the majority do stupid things and that the courts are there to make sure that there is a "checks and balance" in the government.
Clear example- this case.
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