Am I a Bad Person If I Think The Prop 8 Ruling Was Correct?

I don’t know enough about US constitutional law to say whether your analysis is right or wrong, but (as someone who also thinks that not allowing gay couples to marry is ridiculous) I’d like to express my appreciation for your post.

In such matters, it is vitally important that things are done cleanly and by the book.

I also sympathise with your last paragraph:) It’s amazing how often people miss the point of a post and argue a well-worn case they happen to be used to arguing with an adversary who isn’t even present.

I’m not a lawyer but I did read a number of articles on the decision and in my generally not too humble layman’s opinion I think they got it right. I completely agree with you on gay marriage, making it illegal is discrimination plain and simple. But I think that the court was asked to render an opinion on a particular issue of law regarding the California Constitution and they discharged their responsibility.

The responsibility for Prop 8 rests with the voters of California who allowed themselves to be swayed by certain groups.

My elderly mother lives in California and generally couldn’t care about Gay marriage but the Prop 8 arguments got to her…

I don’t know enough about US constitutional law to say whether your analysis is right or wrong …

Technically, the constitution at stake is the California constitution, not the US constitution. The California constitution can be amended by a simple majority of voters, the US constitution cannot be.

I want to bring attention to a very good point made by Greta Christina:

See, this isn’t just about gay rights and marriage equality. This is about the principle that certain rights are inalienable. This is about the principle that, as important as democracy is, as important as it is for people to be able to vote on the laws and policies that govern them, certain rights transcend that principle, and cannot be taken away by majority rule. This is about the principle that there are limits to mob rule: that the fears and hatreds and prejudices of one class of people towards another cannot be inscribed into law. This is about the principle that people have every right to be bigots, but they do not have the right to write their bigotry into law… even if that bigotry is shared by the majority.

That principle was violated today.

The ruling appears valid; if the plaintiffs were arguing only on the basis of scope then I don’t see how the CSC could have ruled differently. Judges pick the verdict they want and twist the law and the facts to fit (or so some accounts of legal process hold), but there are limits (excepting, of course, some Republican judges) to how far the law and the facts can be twisted. Assuming based on previous rulings that the majority of the justices support gay marriage, we must conclude they hit such a limit.

The flaw is in the meta-constitutional provisions of the California Constitution; allowing amendment of the constitution, rather than just the passage of legislation, by simple majority vote of the population is so staggeringly inept and so contrary to the essential notion of a constitution that one must suspect the intelligence, sanity or good faith of those who included that provision.

In a way, I am glad that they ruled this way. This will allow it to continue through the appellate process and eventually be heard by the Supreme Court and a nationwide verdict will be issued that this kind of legislation, no matter how enacted, is unconstitutional.

I’ve seen it pointed out several places that the ruling still makes it clear that same-sex couples must have access to the rights provided by marriage–and for the State of California, those are available by domestic partnership. I think the ruling is right on the details, but also points out that maybe the system shouldn’t be set up in such a way that leads to some of those details.

Everyone has to be treated equally, regardless of gender. If I can marry my love, why can not anyone else marry their love, regardless of the genders involved?

This is an issue that strikes right at the heart of rights and freedoms, especially when the exercise of these rights and freedoms harm nobody, and make life better for those concerned.

A “majority” should not be able to vote away the rights of a minority when those minority rights are such that they in no way harm the majority. That is an utter abuse.

Barefoot Bum is right. I don’t think there is any legal ground to complain about the Cali Supremes’ decision. The problem is having a constitution that can be amended by a simple majority vote of the people. Since the normal purpose of a constitution is to protect the rights of minorities from the whims of the majority, a constitution that can be amended that easily is scarcely better than none at all.

I hope Kela is right also. But there are five people on the US Supreme Court who are members of an organization that condones child rape, and there could be six by the time they’re hearing this case. I’m not sure I trust them to make the right decision.

I posted something yesterday about the ruling, not necessarily being correct, but about a different issue from same-sex marriage itself: http://www.secularplanet.org/2009/05/same-sex-marriage-rule-of-law.html

I agree with llewelly’s comment: the chilling thing is that the people of the state of California have proven that rights can be taken away from any minority at any time.

I wonder how the Evangelicals will feel about this when they’re power fades. What really ticks me off is that we’ll have a moral obligation to protect Evangelical rights when they *do* become a ridiculed fringe group.

Greta Christina has it completely correct, and you are completely utterly fucking wrong, again. The California Supreme Court has just affirmed that yes, indeed, the Mormons can buy your civil rights out from under you, no matter which civil rights we’re talking about. They had the chance to repudiate mob rule and preserve equal protection, and they shat on that opportunity.

If I can get 8% of the population to sign a petition outlawing Christians from holding jobs or owning property, I can get it on the ballot. And if there’s a low turnout for the vote, I can get it passed.

Do you now see how fucking insane this ruling (and California’s initiative system*) is?

*Interesting note – the initiative system was implemented by a Republican to subvert the Democrat-dominated Legislature. Way to go, Repigs – you broke an entire state.

I’m going to argue that the ruling was incorrect, following up on the quotation from Greta above.

Although not quite expressed that way, this ruling was at core a question about the nature of law. Namely, do we have a positive view that law is just a bunch of stuff written down by a specific subgroup of our species with the unique moral right to exercise violence over a given geographical area for the purpose of enforcing their will on others, or does law rather follow from a pre-existing objective standard of natural law (the name historically having been chosen explicitly as a contrast to the other strand of objective law, known as “supernatural”)? (To see that you in fact believe in the latter condition, ask yourself whether you think that the actions of a Hitler or the treatment of women under sharia is in some sense unjust despite conforming to all local “law” and custom.) If we accept a natural law basis for legislation, it follows that all so-called laws in contradiction to this natural basis are, in fact, not actually laws.

Thus, even if we have long mistakenly believed that a certain law exists, for example banning same-sex marriage, it may be the case that that law has in fact never existed, if it can be shown to violate a natural law. My argument then rests upon two claims: (1) there is a natural law whose application would invalidate an attempt by the majority to prevent gays from marrying, and (2) the courts in California should, under strict constitutional considerations, respect this natural law.

(1) Much (if not all) of natural law can be seen as apodeictic: or specifically, consisting of propositions which are true for the reason that their negations are self-evidently false. If condition (1) above were not true, it would mean (upon abstracting to a general principle) that there exists a majority with the moral right to inflict its will on any minority strictly because it has larger numbers. But a gang of thugs already has this power in a descriptive if not normative sense (i.e., the thugs can boss around a minority, even if they shouldn’t). Thus, if (1) were false it would be the case that normative morality consisted entirely of descriptive morality and so the content of normative morality would change over time dependent on real-world power relations, so that natural law would lose its objective basis and by the above definition cease to exist entirely. Since I have already argued that natural law does exist, it must be the case that proposition (1) is a component of natural law. (This argument is slightly incomplete, as for example it does not address the position of the moral skeptic that “all moral propositions are false,” but I believe that it can be made rigorous, although doing so here would be more trouble than it’s worth.)

(2) United States law is explicitly based upon an underlying concept of natural law, as seen in the Bill of Rights and most explicitly in the Ninth Amendment protection of unenumerated rights, which guarantees (in theory) that the government will respect an individual’s rights under the normative natural law, even though these rights are explicitly acknowledged not to be recorded in the descriptive positive law. Under the Equal Protection clause of the 14th Amendment, the states are required to acknowledge this principle as well, making it a germane consideration for the California court. Thus, while they did not strike down the applicable “law” banning same-sex marriage until recently, it was in fact the case that the law never actually existed in a normative sense, gainsaying the common claim that Prop. 8 did not qualify as a major “revision” to the CA constitution on the grounds that it only restored the law to what many people had historically (and incorrectly) assumed it to be. Now, suppose that in fact Prop. 8 were valid. This contradicts principle (1) and so it must logically be the case that at most one of Prop 8 and (1) were actually law in California. Under our assumption, this tells us that enacting Prop. 8 in CA would thereby repeal (1) as a corollary. Since (1) was seen above to be the basis of all law in all the United States, repealing it would not only raise Constitutional issues via the 14th Amendment, but would furthermore clearly constitute a MAJOR revision to the CA constitution. That is, it may be the case that Prop. 8 itself only directly affected a small part of the law and modified the definition of a term of relative unimportance (putting Prop. 8 supporters in the awkward position of saying that they don’t consider “marriage” very important), but even if this were the case, Prop. 8 would nonetheless constitute a major revision of the law due to the fact that it indirectly destroys the foundation on which every other part of the CA constitution is based.

First of all, I’d like to point out I am a gay man, not a Californian, but still, a gay man, and I support the ruling. Not because I’m anti gay marriage, but because I’m pro-demacracy. It was a vote by the people, for the people, of the people. Democracy is, IMHO, the best form of government. Look at the money spent on both sides, and Prop 8 passed by 4 point. If we took that same amount of money, and spread it among the 535 representatives on the federal level, do you really think what we wanted would fail? Or, we could put all our faith and hope into one person, and hope we don’t end up getting screwed over.

I’m sticking with the democracy. If we have to go to the courts to get what we want, then we have a bigger issue. We have failed to get masses to understand our side of the issue. I think the history of the United States have shown on several occasions that while at first, yes, the minority will be picked on by the majority, OVER TIME, the problem will correct itself. The majority will become the minority.

As other people have pointed out, it is frightening that civil rights can now be taken away by a direct vote of the people.

It was much better previously, when civil rights could only be taken away by a direct vote of the people’s elected representatives.

*Interesting note – the initiative system was implemented by a Republican to subvert the Democrat-dominated Legislature. Way to go, Repigs – you broke an entire state.

Interesting note: this is complete nonsense. The California initiative system was implemented on October 10, 1911 at the urging of then governor Hiram Johnson, who was a member of the Progressive Party. It was passed by the legislature and had overwhelming popular support.

I think a number of the comments are correct. The decision was legally correct.

I think the problem is that the constitution and the processes in California are broken. The same systemic problems that caused prop 8 are also pushing California into budgetary chaos.

I’m sure many of the Justices wanted the end result to be different. That sort of result oriented judging is wrong. The Justices in this case applied the law without consideration of how they may have wanted the end result to be.

Thank you, Hemant. My understanding of the situation is the same. Nothing like the courts upholding the rule of law to draw attention to the fact that CA is a dysfunctional mess.

The combination of term limits and gazillions of measures on every ballot pretty much guarantees teh stoopid. And because of this, enemies of love and family and equality and justice get to claim an administrative victory. Woo hoo.

It’s not the court that has dealt a blow for social justice, it’s the way we do stuff here. Fix that, and maybe civil rights stand a fighting chance for a change.

Infinitemonkey: Actually, it’s better to say (following Churchill) that democracy is the worst form of governance except for all the others. While similar in semantic content to what you said, this version has the benefit of additionally suggesting that Democracy itself is a lousy form of government (and hence all forms of government are lousy). Thus, while it may often be preferable to have a democracy as opposed to some other -archy, it nonetheless remains the case that it’s often best to have (on certain issues) no government at all. This is clearly one of those cases. The CA initiative may have been by the People, but it certainly wasn’t for the People. (And “of the People” doesn’t even make sense in this context; that refers to the makeup of Congress, not to any concern in a direct democracy.)

And I’ve never been a fan of the “over time” gradualist argument. Socrates was murdered by popular vote and Aristotle would have been if he hadn’t fled to prevent the people from “sinning twice against philosophy.” Similarly, you can’t justify more than a century of slavery by pointing out that it was eventually ended.

Those of you who think that the decision was correct – how in the name of the Holy FSM is completely dismantling the concept of Equal Protection not a “Substantial Revision” of the California Constitution?

Also, I seem to have been wrong about the origins of the Initiative system.

The Barefoot Bum wrote:

The flaw is in the meta-constitutional provisions of the California Constitution; allowing amendment of the constitution, rather than just the passage of legislation, by simple majority vote of the population is so staggeringly inept and so contrary to the essential notion of a constitution that one must suspect the intelligence, sanity or good faith of those who included that provision.

THIS.

You’ve nailed it perfectly BB.

There’s not much more to be said, because the above is the reason this whole thing was ‘allowable’ in the first place…..

and until this issue is resolved/changed, things like this can happen again.

The CA Supreme Court decision is legally justifiable (though it does prove that the law can be an ass and that the CA constitution is messed up). I also think the justices were looking at a wider picture.

1. If they had overturned the proposition on the grounds it was a revision they would have aroused a group who in its anger would probably have removed the justices and gotten a more reactionary court in place. Instead they’ve aroused a group which might work on modifying a constitution that makes it apparently easier to remove a fundmental right than pass a budget.

2. I used apparently above since the court ruled that the only thing removed was the name ‘marriage’ for future SS unions in California. All else must be the same (which is probably not possible but the government is suppose to see that it is so). 18,000 or so couples are still married in name and function and the situation of couples married outside the state is left vague (the court only specifically mentions couples married outside the state pre prop 8 and only to state it hasn’t decided in this opinion (it is perhaps notable this is the last footnote in the opinion); however, I think the situation of couples married outside post-prop 8 is also left up in the air).

3. They might have been able to overturn by using the US Constitution but this throws the case into the federal system and eventually the US Supreme Court which is almost certainly not ready yet to support SSM and might even make a nasty precedent that would be difficult to overturn (see Plessy).

I don’t think the proponents of Prop 8 are going to be too happy about this decision.

(note I am not a lawyer).

You are not a bad person, and neither are the six justices who ruled in favor of Proposition 8. The real ‘bad’ people are the ones who voted for it in the first place.

This was the same court that granted the right in the first place, based on their interpretation of the California Constitution. That Constitution provided a method for Prop 8 supporters to use in amending it, and they did to their desired effect. The court could only follow the law and allow a legally enacted amendment retain its legality. Of course, slavery was legal when the USSC ruled on Dred Scott and every one of the Nuremberg Laws passed in the 30′s in German was legal under that regime, so I have no particular sympathy for people’s whose primary argument is that they were following the law.

I’m not sure the state should define marriage for anyone. Maybe it should only grant civil unions and let people call it whatever they want -”married” “hitched” “yoked” “merged” etc. As I understand it, civil unions include the same package of rights. But please correct me if I’m wrong.

As long as the state is defining what “marriage” is, it’s really up to the voters to decide. I wish my state decided differently, and still hold out hope that perhaps we will in the not too distant future.

I understand your point that, technically, the court decided correctly. But what would the court have done had the voters passed a proposition denying the right to marry to blacks, Jews, or left-handed people? I think the outrage would have been sufficient for the justices to nullify the ban.

The CA proposition thing has always been a problem, and it’s a good illustration of what mob rule can do.

I think that the ruling was legally correct given the weirdness of CA law, but it appears that the judges worded their decision very carefully so as to not give Prop 8 supporters anything more than what they specifically asked for. This post over at the Daily Dish is typical of what I’ve been seeing about the ruling:

Link

As a few others have pointed out, the problem isn’t with the court’s ruling, it’s with the vote last November. Hopefully there’s been enough of a backlash that a majority will vote to repeal it next time ’round.

I agree with you Hemant, I just think it is crazy that states allow amendments based on slim majorities. You’d think at least a 2/3′s vote would be necessary to move an amendment forward…but yes the ruling was technically correct.

“I also think it’s wrong for the majority to deny the rights of a minority.”

I just read this the other day: “It passed with only about 52.3 percent of the vote. Voter turnout for the initiative was about 79.4 percent. Since 52.3 percent of 79.4 percent is about 41.5 percent, that means that only 41.5 percent of California voters approved this amendment to their state constitution.” – Missing Part of the Prop 8 Story

Yes, those who don’t vote don’t count, but the point is that it was a majority of voters, not a majority of Californians.

stogoe, we can say the ruling was correct based on the fact they ruled on the one argument the plaintiffs decided to bring forward. Their argument was invalid in the context of the California constitution, therefore the Supreme Court ruled against them. It is difficult, or impossible for the justices to make a ruling based on arguments the plaintiffs did not bring forward.

This doesn’t make the decision just, right or good. It only makes it correct.

That said, there is something wrong with the California constitution if the rights of a minority can be thrown away by a simple majority vote. The protection of rights is generally regarded be an immutable law in western democracies.

Miko;

Nothing can justify the wrongs done by the majority to the minority, including slavery or JC laws, and I’m not asking you to try. What I am asking you to do is first of all, realize that this is the way the law is set up. If we don’t like the law, we change it the same way they changed it. All the money spent during this election just “bought” 52.3% of the vote. That’s a waste of 47.7%. That’s a massive loss.

Democracy is the best/least bad form of government (depending on your viewpoint), but only if you actually take the time to get out there and do your part. I feel safer knowing that it would take the majority of the voting population to take my rights away, as opposed to a selected few, or even one.

Additionally, your story about Socrates is a better argument against the death penalty than this. Once done, an act like that can’t be undone. This situation took a vote of the people to do, and takes a vote of the people to undo. So, I’d like to suggest instead of bickering back and forth, we get out there and make this act of the people, for the people, and by the people perish from this earth.

Criticize the court’s decision and why their 6-1 ruling was not legally correct.

The court’s decision was not legally correct for two major reasons.

One, and by far most importantly: It puts into law the principle that, despite the fact that the state Constitution bans discrimination against a minority, a minority may nevertheless have discrimination against it written into that Constitution by a simple majority vote. That is a terrible, dangerous precedent — regardless of whether, in the long run, same-sex marriage is made legal in California. (There’s a reason Prop. 8 was opposed by large numbers of civil rights groups, including the Asian Pacific American Legal Center, the California State Conference of the NAACP, the Equal Justice Society, the Mexican American Legal Defense and Educational Fund, and the NAACP Legal Defense and Educational Fund. And that reason wasn’t purely the goodness of their hearts.)

The second reason is that the court’s decision was based largely on the idea that, since California already allows domestic partnership with most of the same legal rights and responsibilities as marriage, therefore banning marriage isn’t a substantial form of discrimination. They are flatly mistaken about this. Within the state itself, domestic partnership and marriage are very similar (legally, at least)… but marriage gets legal recognition outside of the state in many places where domestic partnership does not.

But mostly, I’m going to go with the first. The legal pin that this decision hinged on was whether Prop 8 was a revision to the Constitution — i.e., a major change to its core principles, which can’t be done by simple majority vote — or merely an amendment, which can be. To say that it’s not a revision to write discrimination into the state Constitution when it explicitly prohibits it… that, IMO, is flat-out wrong, not just morally but legally.

Oh, P.S.: Yes, I agree that the main problem is the batty way the California initiative process works. It should not be this easy to amend the state Constitution.

But even given that, I still think the ruling was wrong. For democracy to work, it’s essential that there be basic protections, inalienable rights, that the majority cannot overturn, so unpopular minorities are protected from the bigotry of the majority. This ruling flies in the face of that principle.

Ban government sanctioned marriage, as marriage is a religious concept. If people want to join in the eyes of the govn’t, let us all have civil unions.

Damn, I just wrote this whole articulate response, and it got lost.

Here’s a shorter version.

I disagree with you Hemant.

A convicted rapist and murderer on Death Row was able to successfully sue for the right to get married (prison officials had denied him that right), because the courts decided that marriage was an inalienable right. If that is the case, then changing the constitution to deny me that same right is a major change, and completely undermines the principle of non discrimination. This is not something that can be decided by simple majority.

Also, if scared white folks got together and decided to save the CA economy by infusing the system with cheap or even free labor, and also wipe out a lot competition at the same time by reintroducing slavery or some similar concept, it seems a simple majority vote could introduce that, as long as the judges then decide it’s not a MAJOR constitutional change.
And I have this feeling that would not be considered acceptable, nor legal, but I don’t see how it’s that different (just to clarify, for those who insist on misinterpreting posts, I am advocating for rock solid non discrimination, not for slavery, duh).

Also, if scared white folks got together and decided to save the CA economy by infusing the system with cheap or even free labor, and also wipe out a lot competition at the same time by reintroducing slavery or some similar concept, it seems a simple majority vote could introduce that, as long as the judges then decide it’s not a MAJOR constitutional change.
And I have this feeling that would not be considered acceptable, nor legal, but I don’t see how it’s that different (just to clarify, for those who insist on misinterpreting posts, I am advocating for rock solid non discrimination, not for slavery, duh).

Well, to be fair, medussa: While I agree that this ruling sets a dangerous precedent, no legal scholar thinks it would go that far. The California Constitution can’t supersede the U.S. Constitution… and the U.S. Constitution explicitly bans slavery. What this ruling does is say that any discrimination that isn’t explicitly banned by the U.S. Constitution can be written into the California Constitution, simply by majority vote.

However, your point about the prisoner is an excellent one. If the California Supreme Court ruled in that case that marriage was an inalienable right, then they dropped the ball on this one even worse than I’d thought.

Am I missing something? How is California setting a precident?

So the court upheld the letter of the law but failed to uphold the principle of the law. They were technically right to do so and nobody ever lost their job by going with the safe option. In my view they should have forced the issue so that a higher court had to make a decision. At the very worst this would have raised awareness of the complete arsehattery of the California state constitution and of gay rights.

Hemant, what really nauseates me is that the same kind of twits who vote for civil rights bans like this are the same kind of people who blithely refer to America as “the land of the free and the home of the brave.”

Bullshit.

It’s not very meaningful for non-lawyers to second-guess a legal ruling, especially since we already had our chance to argue about this when it was on the ballot. If someone wants to propose a constitutional amendment revision that would change the way the constitution is amended revised, that’s something we can all talk about, but I live in California and I don’t hear anyone proposing it.

The ruling was not legally correct because it sets up a situation of unequal protection under the law, which directly violates the US constitution.

The court previously ruled that marriage is a fundamental civil right. This amendment takes that right away from SOME people but NOT OTHERS. Therefore, it subjects gay people to unequal protection under the law.

Further, by ruling that the gay couples that already married may stay married but other gay couples may not become married, it creates a situation where SOME gay couples receive the legal benefits of marriage, but OTHERS may not. Again, unequal protection under the law.

Given everything that’s been said here, it seems that this is the bottom line…..

Until California changes its procedure(s) regarding constitutional amendments/revisions, this issue of ‘a majority removing rights/privileges from a minority’ can happen again.

To anyone who clings to the idea that a ‘democratic vote’ is the way to make laws, what are you going to say when the majority consists of fundamentalist ______ (fill in your own blank here) who want to limit/remove your rights and privileges?

You are not a bad person, and neither are the six justices who ruled in favor of Proposition 8. The real ‘bad’ people are the ones who voted for it in the first place

.

I agree, though I’m not sure if I agree with the legal argument

I agree Hemant the supreme court in cali did the correct thing, not necessarily the moral thing. The mistake was made in November and if you don’t like the decision that was made then you need to lobby for a national law that protects the rights of the lgbt community. Just like with most other civil rights issues if you leave it up to the states to decide then they will fuck it up.

You are not a bad person, Hemant, but you may be a less than thoroughgoing skeptic if you think it is wise to opine about this ruling without first reading Justice Moreno’s dissent. If you have already done so, that is well and good, but judging from your post (and most of the comments) you have not done so.

If you can read through that opinion and still believe that taking away the right to marry from unmarried consenting adults is not a major overhaul of the California constitution’s equal protection clause, well, I’d be interested in hearing your argument.