Prop 8 Inquisitors "Command" Court To "Bow"
With arrogance worthy of the Spanish Inquisition, leaders of the anti-civil rights "Proposition 8" group filed a brief 'commanding' the California Supreme Court to 'bow' to their will and nullify 18,000 marriages. In other words, "Happy Holidays, California! And here's your gift: a great big shiny box of lives destroyed." Ah, good times.
Luckily, California Attorney General, Jerry Brown, filed his own brief asking that the court nullify Proposition 8 on the grounds that it extinguishes civil rights guaranteed by the U.S. Constitution.
The first report comes from Lisa Leff at the Sacramento Bee:
SAN FRANCISCO -- The sponsors of Proposition 8 asked the California Supreme Court on Friday to nullify the marriages of the estimated 18,000 same-sex couples who exchanged vows before voters approved the ballot initiative that outlawed gay unions. The Yes on 8 campaign filed a brief arguing that because the new law holds that only marriages between a man and a woman are recognized or valid in California, the state can no longer recognize the existing same-sex unions..."For this court to rule otherwise would be to tear asunder a lavish body of jurisprudence," the court papers state. "That body of decisional law commands judges - as servants of the people - to bow to the will of those whom they serve - even if the substantive result of what people have wrought in constitution-amending is deemed unenlightened." (link)
I am no constitutional expert, but I am pretty sure that the the only time a legal brief counts as a commandment is when God writes it--on stone (see, e.g., The Bible).
The Los Angeles Times sums up the Attorney General's brief to the court and the subsequent rattling chains of the "Yes To 8" inquisitors:
In a surprise move, state Atty. Gen. Jerry Brown asked the California Supreme Court on Friday to invalidate Proposition 8. He said the November ballot measure that banned gay marriage "deprives people of the right to marry, an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution."
It is the attorney general's duty to defend the state's laws, and after gay rights activists filed legal challenges to Proposition 8, which amended the Constitution to ban same-sex marriage, Brown said he planned to defend the proposition as enacted by the people of California.
But after studying the matter, Brown concluded that "Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification."
Backers of Proposition 8 expressed anger at Brown's decision not to honor the will of voters, who approved the measure in November. "It's outrageous,"said Frank Schubert, campaign manager for Proposition 8. (link)
What is sad in this exchange--or maybe frightening--is the total ignorance of U.S. constitutional democracy exhibited by the Prop 8 backers.
The idea that civil rights can be stripped by a simple majority plebescite is not just unethical, but actually violates the principles on which our system of government is based. First off, it is unconstitutional to pass laws that deprite citizens of rights guaranteed in the U.S. Constitution (e.g., equal protection), a basic point the Prop 8 folks do not seem to get. Second, the purpose of the judiciary is to uphold the Constitution as a form of systemic balance to the other two branches of government--not to bow down to them.
The language of the 'Yes To 8' brief suggests that group see itself in a moral struggle not just to strip gay people of rights, but to mobilize public against the California judiciary.
Time will tell which effort will hold the day. However, I suspect there are few judges in California (or anywhere else) who respond well when lawyers 'command' them to 'bow' down. Come to think of it, nobody responds well. And when you think about it, that really is the point of this whole Prop 8 nonsense, is it not? Try to strip American citizens of their equal rights, and when that does not work: raise a bloody stink about the supposed despotic decline of the United States judicial system.
© 2008 Jeffrey Feldman, Frameshop
Follow Jeffrey Feldman on Twitter: www.twitter.com/JeffreyFeldman
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It would help if they learned the basic principles of legal procedure. Judges are NOT "servants of the people", they are servants of the LAW. Your Founders had the very good sense to make judges unelected to safeguard against a tyranny of the majority, not to enable it.
Since gay "marriage" is different from traditional marriage, just call it something else, get all the identical rights and responsibilities, and go on your merry way. If you insist on calling it "marriage", you will have a very hard time.
Maybe I'm missing something here. What's wrong with calling it 'marriage'?
If you call a dog's tail a leg how many legs does it have?
Four.....J
Let's call Viagra, "I am impotent and am no longer a man without help" pills.
It is just a name isn't it?
Use your own excuses back at yourselves.
If it is just a name, why are you complaining?
Does your "straight marriage" depend on a name?
Is that all that is holding it together?
It would be harder to rewrite all the laws in the US, the States, counties and cities regarding marriage to include same sex cicil unions than to just say that marriage applies to all committed couples, regardless of the sex of each member of every couple. Laws are best when they are simple, unambiguous and give everyone equal status.
"With arrogance worthy of the Spanish Inquisitio
I spilled my morning Java on my keyboard. What is this, a Monty Python sketch ?
"What I want to know from all you misguided anti gay marriage people is: If two people of the same sex get married, how does it hurt you in any way?"
The Yes to Prop 8 people are hurt in this way: the very existence of gay people hurts them (making that choice in grade 6 to be gay). The nerve of gay people to want equal treatment under the law hurts them (as we all know from our Bibles, gay people are sinners not deserving of respect, let alone equality). The audacity of gay people wanting to marry hurts them even more.
They might have to treat gays as people, as they would have themselves be treated...
The thought of having to treat everyone as equals hurts them, as God has clearly commanded otherwise (when it comes to commandments, God trumps Jesus every time on the topic of sinners...
That, and the number of politically correct groups that can be publicity attacked (because they love them and want to help of course) has dwindled over the years (the jews and blacks are verboten now).
But not to worry, the Church of today provides cover for such people as these, loving caring people who only want to bring the light of God's word into you life.
Whither you want it or not. Onward Christian Soldiers, marching as to war...
Arrogance of the Spanish Inquisition? What is it with the Left always bringing up as many ‘catch words’ as possible? Is anyone with whom they disagree not a Nazi? Not an inquisitor? Not a racist, sexist, homophobe, bigot, misogynist? Is there anything that someone on the right supports not equal to the death camps, gulags, or concentration camps? Is there ever a time that someone who doesn’t support the Liberal agendas not akin to witch burners, slave traders, or executioners? I mean, geesh. I know that the old notions of tolerance and open mindedness and respect for deferring opinions have long been eradicated by the new post-modern Left. But come on, is the dialogue reduced to this? Is it just call names, insult, and yell like a child on a playground who has not gotten his way? I can’t read further when the opening salvo in a piece is like that. It is embarrassing in its lack of originality, and suggests that the Left is simply the latest in a long line of ‘our way is the only way and all must conform’ ideologies. But the worst thing of it is, I can barely tell the difference between going to some extreme fundamentalist or radical right wing websites and going to a site with those who still strut like peacocks under the quickly inapplicable label of liberal.
Perhaps you should have read the whole post. Some of us are sick & tired of being under the conrtol of the right. Look where we are today.
Most of us are tired of being under control of the Right. But coming in and acting like the Liberal version of the Right doesn't make much since either. If you replace one 'we're right, so watch your butt' philosophy with another 'we're right, so watch your butt' philosophy, I don't see many improvements being made.
Liberal agenda??? Equality? How dare they!!!
The problem isn't the agenda, it's the means for achieving the ends. Comparing people - who happen to represent the majority opinion I might add - inquisitors is about as self-defeating as I can imagine.
As much as I agree with Mr. Feldman both ethically and legally, US courts have not yet held that the Equal Protection in the US Constitution applies to Gays, Lesbians or Bisexuals. And I'm not sure that's something I'd want to test right now with the current composition of the US Supreme Court. A definitive "No" from the US Supreme Court is worse than a legal limbo. Once they've said "No", that becomes a precedent and is much harder to reverse. I'd be open to hearing someone argue differently, but that's my current view.
JTnSLMO I would suggest that you read Lawrence v. Texas (2003) and Romer v. Evans (1996) in which the US Supreme Court did indeed apply the Equal Protection Clause to gays and lesbians. The reason why the religious right favors statewide referendums over judicial proceedings is that it is easier for them to misinform a constitutionally illiterate public than it is to convince a well informed judiciary. I would also strongly suggest that you read the case in which the California Supreme Court granted marriage equality to gays. For in it you will see an opinion based on sound legal reasoning and not just personal opinion.
The presumption that failure to redefine marriage is a loss of civil rights is not confirmed by the ultimate legal arbiter, the Supreme Court. Until they make a decision it's merely supposition. Perhaps we can stop trying to address this as a statewide issue and cut to the core.
While I firmly oppose the redefinition of marriage, as a law abiding American their decision will be accepted as the law of the land. I presume the gay community will do likewise.
Would you agree that voting to take away a right that had already been enjoyed for several months resulted in a loss of civil rights?
I would suggest that a law was amended. Civil rights can not be deleted by popular vote. That's why I feel the Supreme Court should decide if the denial of marriage to gays is a denial of civil rights or not. It seems foolish to me that it is legal in places and illegal in others. Like abortion and education, the Supreme Court ultimately was the decider of the controversy. For all parties sake, I hope they will act on this issue soon.
1) The SCOTUS has already decreed that the right to marry is a "fundemental right" (Loving v. Virginia) and no, they don't have to say "this includes the queers" for it to apply to gay people as well.
2) Far from this "5000 years" rubbish, the current definition of marriage is only a few centuries old and not even universal now (for example, the Koran allows men to take four wives. Not all Muslims observe it but it's in there).
3) If the SCOTUS somehow manage to twist the law into a pretzel as a way of denying same-sex marriage rights (which they would have to as there is no legal grounds on which it can be refused), gay people will file appeals and work to overturn the law. Just as the anti-SSM people would do. That's how the law is supposed to work.
The US Supreme court did have the opportunity to take lawsuits that sough to overturn the same sex marriage rights recognized by the Massachusetts Supreme Judicial Court ruling Goodridge v. Department of Public Health in 2003. The Supreme Court chose not to take the cases, effectively allowing the decision to stand. This did not set precedent, but it is an encouraging sign that the majority off the Justices are not entirely blind to the civil rights of same sex couples.
the difference between the NeoChristos and the OldSkoolChristos
reminds me of the difference between "new money" and "old money"
Well, the constitution was amended. Brown, who wrote the proposition, is wrong. Nowhere in the California constitution does it say that parts cannot be amended.
The CaSC ruling was the constitutional revision which required the amendment in the first place. If Brown is right, then he, as attorney general, perpetrated a fraud in rewriting the proposition and proclaiming, that while obnoxius, it was legal.
If he was lying to the people, he is lying to the court and thus, the thing stands.
Attorney General Brown did NOT write Proposition 8.
Under the California Constitution, amemdments may be made by popular vote but alterations or revisions to the Califiornia Constitution require the approval of two-thirds of both houses of the state legislature.
The ban on same sex marriages in California was ruled unconstitutional by the state supreme court. They can also rule that the Proposition 8 alters the constitution without meeting the requirement for doing so.
Equal protection under the law for ALL is a basic right protected in the California Constitution. The California Court has ruled more than once that marriage is a basic right that is protected under that provision.
Um, no, you're wrong. The CaSC ruling didn't revise the constitution at all. It struck down part of the CA family code and a previous ban on same-sex marriage but did nothing whatsoever to the Constitution.
I smell a CivilWar on the horizon
I noticed on the news that in Los Angeles the gay march consisted of a safe, police protected walk from the bars in West Hollywood to Westwood.
I also noticed there was no marching to the churches in Compton that heavily promoted this Prop. Civil war? Whose gonna fight?
Church will fight church. (4,557 churches in California are fighting Prop 8. California Council of Churches v. Mark D. Horton)
The 10 commandments written by god are on display in the vatican. Whoops, just informed they are not there.Ya mean they were lost or misplaced? Darn, can't be one of the more important gods that wrote them.
They lent them out for an "Indiana Jones" movie and they got lost in a great big warehouse somewher in Washington. Along with the arc.
And being examined by TOP. MEN....
The governor, attorney general, and CA legislature are giving the court as much cover as they can, so I am hoping the Court repeats there call for equality. If they rule that prop 8 is a revision, not an amendment, marriage for everyone will be safe in California for decades. If not, this battle will be waged perennially just like the parental notification on abortion props that never die.
It will be interesting to see how the Court rules on this as they have already declared that the right to marry is a "fundamental right". It should be fairly easy for them to dismiss the petition to nillify the 18,000 same sex marriages and then, by referring to their previous declaration, overturn Proposition 8 as an attempt by the people to deny equal protection under the law. If they do not overturn Proposition 8 then they are saying that a similar route can be taken to deny blacks, or Hispanics, or Jews, or any minority their fundamental rights and equal protection under the law.
The 9th circuit will be stayed if they do. The issue is going to the Supremes and frankly all issues of this import end up there anyway. If the prop 8 people want to change the constitution of California, and I believe that that is what would be necessary to pass something like 8, then they need to do it right. This end run worked for Affirmative Action, but AF ACT was a program not a right. To change the constitution requires a much higher standard. About the finally part, gays are not considered a protected class like blacks, hispanics or jews. If memory serves, and please correct me if I'm wrong there was a decision in the late 70s early 80 from the supremes that enumerated the protected groups, blacks, women, hispanics, native americans, asians, physically disabled, mentally disabled. ( I prefer challenged but I'm not sure of the actual etiquette.
Point of interest. In its decision, the California Supreme Court made clear that gays are a protected minority, as are racial minorities, and religious groups. The full decision is very interesting reading and available via some web sites.
So where is this "protected class" stuff from? It certainly is not part of the US 14th Amendment. Is it part of some statute or just a judicial test of legal reasoning? It would seem that other interpretations of equal protection might trump whether or not some individual or group falls into the "protected class," but I'm no lawyer.
Tom - this is essentially the argument being used by the California Council of Churches in their fight against Prop 8. There is a link to a pdf of the full suit on the CCC website. The pdf is about 50 pages long, but well worth reading.
The UK Governement is arguing before the European Court that the court should not require European states to allow 'marriage' for same-sex couples. It has told the court that the right to marry refers to "the traditional marriage between persons of the opposite biological sex". The UK provides civil partnerships for same-sex relationships, with essentially identical rights to marriage. Just because same-sex partnerships are not marriage does not mean that they are treated worse; they are just different. Difference is not the same as discrimination.
"Difference is not the same as discrimination" says Zwingli. And separate is not the same as equal. Sorry.
The UK has a constitutionally established state religion; we don't. Apples and oranges.
1) We have a state religion (for now), you don't.
2) Our Civil Unions genuinely ARE identical (with the exception of some very technical minor details), they were expressely written to be so. In many areas and many states, yours aren't even close.
3) Our country has genuinely tried to maintain equality in seperate institutions. Your own nation has a distinctly mixed record on that one.
While I agree that Prop 8 shouldn't be implemented, I despair at the HUGE power the LGTBs are giving to the opponents. The intro to this piece talks of "lives destroyed"--really, lives destroyed?? Warren's speaking at the inauguration is "spiritual violence." Really?? For myself, Rick Warren has no power to do anything spiritually violent against me and were I married to a man (or woman or anything in between), Prop 8 wouldn't have the power to destroy my life--these people aren't worth it. Maybe I'm calloused after spending so many years in other countries where the rights/status that LGTBs in the US enjoy are completely unfathomable. It may sound cold, but buck up guys/gals. Stand up for yourselves, be opposed to something, but let's drop some of the drama--which, by the way, is backfiring in MSM (not everyone out there reads HuffPo).
SirbianRat: If it was your marriage that the courts were attempting to void, I'd suggest you'd feel as if your life as you had chosen it, had been destroyed. And you'd have the right to assume they could not do that.
So...in what way is this something I should accept and be calm about?
Let's vote on your marriage and see how you feel about it. Rrrright: Not gonna happen, is it. Nice feeling, eh?
Precisely. YOU get over it. I won't.
I think you are being slightly disingenuous. Your marriage wasn't a fait acommpli. You needed a court case in order to be able to marry. You knew the prop was on the ballot, so it isn't as if people were married for 20 years and suddenly their marriages were voided. You knew going into this process that there was a danger of voiding the marriages. That being said I think the couples that got married acted in good faith, they had a court ruling in their pocket and because of that I think marriage is marriage. I think that the full faith and credit article of the constitution should come into play here. Once you are married, and this is going to be adjudicated to the supremes, the non same sex states are going to have to suck it up. Full faith and credit is
"full faith and credit
n. the provision in Article IV, Section 1 of the U.S. Constitution which states: "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other state." Thus, a judgment in a lawsuit or a criminal conviction rendered in one state shall be recognized and enforced in any other state, so long as the original judgment was reached by due process of law. Each state has a process for obtaining an enforceable judgment based on a "foreign" (out-of-state) judgment." law.comm)
It's just the same old anti-gay agenda, cloaking themselves the latest garb so as to hide their bigotry from themselves. It's sad. And hopefully fewer and fewer and fewer people listen to their nonsensical drivel.
If you "really" want to amend the constitution legally, here is how to do it.
Congress proposes amendments.
1. Both houses of Congress approve by two-thirds votes a resolution calling for the amendment. The resolution does not require the president's signature. To become effective, the proposed amendment must then be "ratified" or approved by the legislatures of three-fourths of the states. Congress typically places a time limit of seven years for ratification by the states.
2. The states propose amendments.
The legislatures of two-thirds of the states vote to call for a convention at which constitutional amendments can be proposed. Amendments proposed by the convention would again require ratification by the legislatures of three-fourths of the states.
Until that happens Prop 8 is ilegal.
prop 8 is to the California constitution, not the US constitution
Prop 8 is still illegal, but not for the reasons you described. Just go to lambda legal's website, they probably explain it better than i can.
The US constitution is controlling, at least I think it is.
J
A state constitution can never over-ride the American constitution. Just refer to any of the Jim-Crow states that were against intigration.
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