Proposition 8 Belongs Before California's Supreme Court

We are a nation of laws. Lawmaking belongs to legislatures, but occasionally, the people write laws of their own through ballot initiatives. Regardless of their origin, all laws are subject to judicial review, something a small band of zealots in California would like you to forget.

Beyond the core issues surrounding Proposition 8, which reversed a landmark ruling from California's Supreme Court allowing gay couples to marry, lies a far deeper question affecting the very nature of our democracy: can the court review laws?

It sounds like an absurdly basic question, and it is, but it's one of the first questions California's Supreme Court will tackle today. California law is clear, saying plainly that the "judicial function... [is] to declare law and determine rights."

Whether the court can do its work and evaluate Proposition 8 hinges on a technical question: was Proposition 8 an amendment or a revision?

California's Constitution distinguishes between the types of changes that can be made through ballot initiatives. There are amendments and revisions. Amendments clarify confusions and help streamline the Constitution. Revisions sweep the rug out from under the Constitution by making wholesale changes to the document's founding principles. Amendments can be made through ballot initiatives, but revisions require a public discussion and clear decisive action from the people or their representatives. 8% of Californians can't rewrite the Constitution. For that, two-thirds of the legislature must act, or the people need to get together and throw themselves a Constitutional Convention. Proposition 8 failed to earn sufficient support from the legislature to support a proper constitutional revision, and was barely able to muster 52% of the popular vote.

Who came up with the distinction between amendments and revisions? The people! It's part of the 1911 ballot initiative law that started this whole mess in the first place. The law "was intended to allow voters to bypass a foot-dragging legislature," wrote three highly esteemed Constitutional scholars, "not to oppress vulnerable groups or strip courts of their traditional role of protecting minority rights."

Who's charged with deciding what's an amendment and what's a revision? Well, now you see why Proposition 8 belongs before the California Supreme Court. The judiciary sifts through the facts and pulls out the truth. There is an honest debate as to what Proposition 8 actually is, and it is a debate that only the court can resolve.

Beyond the legalese, the court not only needs to act, but it needs to strike down Proposition 8 as a grossly unconstitutional expression of hatred and discrimination. The Constitution exists to protect the rights of all citizens, not just fleeting majorities or well-organized campaigns. If the majority may peel away "inalienable rights" from minority groups, where does the discrimination end? Today it's gay and lesbian couples, tomorrow it could be Muslims, Asians, or women.

California's courts have ruled that all provisions of the Constitution "constitute the ultimate expression of the people's will." Turning our back on inalienable rights is unconstitutional, immoral, and downright hateful. Bigots may enjoy equal access to our courts, our government, and ballot initiatives, but try as they might, they should never be allowed to deprive fellow citizens of their fundamental rights. We are a nation of laws.

Comments

[dxarmbar06]

Let me put this in perspective:
Side A- "They're taking away my right to marry the person I love."

Side B- "They're taking away my right to take their rights away."

Um, Hello!!!

[M1]

Excellent article. An unjust law is no law at all. An unjust and cowardly California Supreme Court is even worse because it forecloses the hope of justice. What a disappointment it was to watch that court work.....especially Justice Kennard. What is wrong with her? She allowed Star to blather on endlessly but cut the legs off the lawyers who support Marriage equality by asking a question that was so long that it ate up their time. It seemed she feared letting them speak their truth.

[noamjunior]

The STATE having a male and female requirement for a Marriage license is the moral and legal equivalent to having a male gender requirement for driving licenses

[noamjunior]

100 years ago, gender requirements appeared on a host of public documents, including property deeds which were required to be signed by males.
gender requirements on a state issued license are unconstitutional

[chrisbee13]

Marriage is considered to fall under the "Right to Privacy" which, while not specifically enumerated, was established and upheld by cases like Loving v. Virginia (where they said a law against allowing interracial marriages was unconstitutional) and Roe v. Wade (I shouldn't have to explain this)

[ErrolSmythe]

Tragically the so called modern society takes pride to intentionally compromise
Good morals just to please the collective mind of the morally bankrupt.
A few so called sick high society individuals click together
And have wild parties to poke fun and trash good social morals

There is a golden standard all society should stand on
Based on good morals and not moral debauchery
The rusted iron standard that part of society clings to
Threatens to rapidly degrade the moral compass of traditional social values.

The golden standard of good morals must shine to dispel dark moral degradation
So that nominated judges with moral fibre and backbone may take a stand
And like brave soldiers of justice do not cower down alone to yield to a wayward crowd
And with face like flint refuse to bend legislation from the bench and uphold the law.

[noamjunior]

lets hope those judges take a stand and reject the discriminatory and hateful prop 8

[yorfutrxhsbnd]

So tell us, really, which side are you on?

[JohnBisceglia]

I find it fascinating that in the past 2 days I've seen 2 different posts on The Huffington Post 'Gay' Marriage page (we need to change that stupid term to 'Marriage Equality') that suggest Tax Revolt in response to NON-Equality.

Young and Black in the Age of Obama - by Sara Haile-Mariam (click on the word CALIFORNIA in the article for a hint)

Do Something! Kenneth Starr Is Very Busy! - by Judy Wieder

Not a "tax revolt", but today Annie Leibovitz shines a light on FAMILY FINANCE on Salon.com - Annie Leibovitz and the Gay Tax

In these depressing economic times, are more and more of my fellow Queers looking into their very spacious queer wallets and going, "W.T.Fff.? Why should we pay MORE for LESS?"

Will we CONTINUE to tolerate and allow this LEGAL & FINANCIAL ABUSE?

Your Queer Money IS Your Queer Power - It's really the only power we can wield in American 2009.

(BTW - I used to write LGBTIQ to be PC, but IMO I think Queer is EZ-est).

[PlaceboStudman]

The ONLY thing prop 8 proved is that the laws can be bought and sold by any organization. In this case, the untaxed Religious Corporation.

It's frightening the corruption, bribery and emotional and spiritual blackmail that went on in support of Prop 8. It had NOTHING whatsoever to do with the law. It had to do with The Moral Majority enforcing their beliefs on everyone else, who may or may not believe what they do.

Had Prop 8 been brought up by a California legislator, I might have more respect for it having been a matter of law, but since it was sponsored by the Catholic and Mormon churches, I can only conclude that it was an attempt to enforce a moral imperative onto the gay and lesbian residents of California, to whom religious organizations have been our worst enemy

[JohnBisceglia]

Bravo! - I never signed up to be tax-compliant to a THEOCRACY.

[bbbtmenw]

Thank You........

[Abd-ul-Latif]

I guess if you can't win an argument on the basis of reason and logic, you resort to calling the other side names, much as children would do in a schoolyard: "bigot," "zealot," etc. Oh, and you should also claim that disagreeing with someone else's behavior is evidence of "hate" toward that person. Of course, all of this is either ad hominem (the name-calling) or blatantly illogical (disapproval = hate), but who cares? As long as you're supporting the "right" side, use whatever rhetorical strategy works, right? I'm still waiting to hear you explain to me how exactly same-sex "marriage" constitutes an "inalienable right" or a "fundamental right," given that it was invented, oh, a couple of years ago, wasn't it? It's become an "inalienable," "fundamental" right pretty quickly, hasn't it? As I said, I'm still waiting to hear a real argument.

Homosexuals have the exact same rights everyone else has: the right to marry an adult of the opposite sex. If they prefer not to do that, fine. The unending quest for an official stamp of approval from the larger society (legal marriage) reflects the gnawing insecurity that homosexuals feel within themselves.

The slippery slope argument (Muslims, Asians, women) is very silly, but suppose for a moment that it isn't. I should then be able to make a similar slippery-slope argument about future state recognition of polygamous or bestial relationships, shouldn't I? Logic is a pesky thing sometimes.

[TheBrimeCow]

It is worth pointing out that name calling itself is not ad hominem.

Ad hominem is where I attack the character or person of the person I am arguing with as reason that their proposition is wrong. For example "person A should support gay marriage because you are a zealot" is an ad hominem attack and is logically invalid.

However, if I say you are wrong because there is no legally or logically valid reason to place heterosexual relationships in a legally superior place to homosexual relationships and that your "gay people can marry any member of the opposite sex they want" construction openly acknowledges that the current system denies equal protection (holy 14th amendment!) to homosexual relationships in order to appear clever, and conclude based on this that your stance (in absence of any other form of logic) is likely based on zealotry and hate, I am not using ad hominem.

Ad hominem is not a catch-all term for name-calling... sorry, champ.

You're right, logic is a pesky thing sometimes...

[GrahamInCanada]

Hmm, makes your head spin, doesn't it, logic, that is. To explore further, I'll try to de-escalate the language.

If you say that somebody is wrong because they make an invalid logical or legal argument, and further that they are wrong because they acknowledged that your argument was correct if you deconstruct what they said, all is well and good.

But if you go on to claim that based on their argument, they themselves have some negative characteristic that also negates their argument, how is that not ad hominem circumstantial?

To avoid the ad hominem logical fallacy, wouldn't you best be advised to attribute whatever characteristic to their argument, not to their person?

Or, to get back to your words, you would say the argument is hateful, and let your audience decide for themselves if this indicates that the arguer is hateful as well, but you would not say that the arguer is hateful using the circumstance that they have made a hateful argument to further invalidate their argument, as that is circular and not logical.

The only time a reference to the person of the arguer is appropriate in logic is if it contains a fact that is relevant to the argument. For example, if a person where to argue that they saw the butler do it, you can mention for example, that the person is blind, in your rebuttal, which would be an argument to the person, but not an illogical argument to the person.

[TIME]

"Homosexuals have the exact same rights everyone else has: the right to marry an adult of the opposite sex."
Don't be so silly. By definition a homosexual could not, or would not marry someone of the same sex. You would support a loveless marriage just to comply with your mistaken definition of the law? Marriage laws are ancient, and based on ancient biases. As we have outgrown and changed other ancient biases, it's time this ancient bias be changed.
If homosexuals have insecurities, it's because of the oppression they live under by people who can not accept that some people are different than other people. Then, by law, forced to live in an unnatural situation for them, just to satisfy the illogical demands of some who believes in a nonexistent interpretation of the law.
People (and all other life on this planet) evolve, change, learn to adapt to their environment, and compromise in order to survive and live. Some refuse this process, and are left behind as insignificant, or die off because they are rejected by the majority who have learned to progress.
Americans have the right to do many things as long as there is no harm to others. Where is the harm to society if homosexuals are married? I can certainly say that the right to own a gun, does hurt society, in fact it helps kill many Americans.

[goodgravy]

cool! can i marry your daughter?

[TIME]

The Constitution does say that those rights not enumerated in the Constitution would be left to the states to decide, but that is not a process to legalize discrimination.
We have learned over the centuries that our laws have unjustly left out protection for some of our citizens.
Some would like to describe these legal oversights as intentional and defining, as so against our morals, to justify discrimination against a minority that a majority deems as immoral.
The founding fathers set up a system that could be amended, in hopes that future generations could improve and prefect the system they started.
The issues (could you imagine compromising on slavery to get the government started) of peoples rights has been a constant growing tolerant, inclusive process. We have learned and agreed that people once denied certain rights, were denied because of our Puritan, illogical biases, not on logical, well thought out law. So we made logical changes to our laws, to meet the morality of our basic claim, that all are created equal.
This is another step in correcting our oversight in another bias. Inclusion and tolerance, is our morality, not perpetuating an illogical fear of a perceived immorality.
If some want to believe that gays are immoral, that is their (uneducated) right, but the Constitution should be the document to suppress their illogical discrimination. If that means we have to change the Constitution, then lets get started.

[BobLablah]

I assume this means if the Supremes uphold prop 8 you will concede that the law shall rule.

[ThinkCreeps]

No, the natural assumption there is that the supreme court are insufficiently aware of the law

[ReasonIsMyReligion]

The majority has no "right" to outlaw the "rights" of any minority.

That's the whole POINT.

On to the courts.

[BobLablah]

I just checked the Bill of Rights and couldn't find anything at all about marriage. Could you tell me where you saw it?

[ThinkCreeps]

Negative rights. Go read.

The right not to be killed...
The right not to be imprisoned without due process...
etc..

[Eric Chamberlain]

Re-read the ninth and tenth amendments.

[ReasonIsMyReligion]

You realize that goes for straight marriage too?

[propitiousmoment]

The bill of rights does not contain the sole and complete statement of the rights of citizens and human beings in the united states. The supreme court in Loving v. Virginia, interpreting the constitution, has defined marriage as a fundamental right. That is the job of the supreme court, to hold up the statutes and the common law to the light of constitutional principles. That is what the california supreme court is going to have to do regarding the right of gay persons to marry whom they please, and eventually the u.s. supreme court will probably have to do it as well. Finding a way to shine some light into some people's minds, however, is a much more difficult undertaking.....

[fauxmccoy]

perhaps we could just consider this the pursuit of happiness? bottom line is that the majority does not possess the ability to dictate conditions for the minority (hmmmm -- separate but 'equal' comes to mind here), no matter how abhorrent you may find this. sorry buddy, i think your position will lose in court.

[Bart33]

Very well written.