Monday, August 10, 2009

Prop Hate

I was in Italy when the California Supreme Court decided to uphold Prop 8, or, as it has come to be known, Prop Hate, so I never posted about it, but I think a quick comment is warranted.

Obviously, I think they made a big mistake. While a year prior 4 courageous justices decided to uphold the rights of every individual, this time 3 of them bent to the threats of being recalled by the religious right and forever stained their legacy.

Thankfully, they let the 18,000 marriages performed before the passage of Prop Hate stand, but that's a small consolation. Actually, they virtually created a new class of people in California.

I'm no lawyer, but a lot of constitutional scholars were surprised not really by the decision (they were expected to uphold Prop 8), but by the language in the opinion, lacking any hints of limiting what people can do to the Constitution and practically denting their own opinion from a year earlier.

A few excerpts from a series of articles I read once back from our vacation.
The California Supreme Court's decision Tuesday to uphold Proposition 8 and existing same-sex marriages left in place all rights for California's gays and lesbians except access to the label "marriage," but it provided little protection from future ballot measures that could cost gays and other minorities more rights, lawyers and scholars said Tuesday.
Proposition 8 merely "carves out a narrow and limited exception" to the state constitutional protection gays and lesbians now receive, Chief Justice Ronald M. George wrote for the majority.

The court majority said same-sex couples would continue to have the right to choose life partners and enter into "committed, officially recognized and protected family relationships" that enjoy all the benefits of marriage under the state's domestic partnership law.

"Like opposite-sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right," George wrote.

UC Berkeley constitutional law professor Goodwin Liu said the ruling shows "the court continues to be very deferential to the processes of direct democracy in California."
But the court's definition of what would be an impermissible constitutional revision was also narrow and left gay rights activists nervous and several legal scholars skeptical.

"It leaves us to the kindness of strangers," said Jon W. Davidson, legal director of Lambda Legal, a gay rights organization. "They could take away anything."
Justice Carlos R. Moreno dissented, calling the ruling "not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.

"The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry," Moreno wrote, "it places at risk the state constitutional rights of all disfavored minorities."

Gay rights advocates and several legal scholars said they were surprised that the court did not attempt to rein in constitutional amendments.

"For the court to see only structural changes as those requiring a greater majority is perhaps the worst feature of the opinion today," said Pepperdine University law professor Douglas W. Kmiec, who voted for Proposition 8 on religious grounds. "It makes it much too casual for individual rights to be withdrawn."
An opinion piece:
This decision raises the obvious question: “why did the California Supreme Court first rule that there is a fundamental right to marriage equality and then rule that the voters can take that away?
The Court made clear that today’s decision was not a ruling about whether there should be a right to marry in California; it was a ruling about whether the California Constitution, as written, permits the voters to pass Proposition 8 and thereby limit the right to marry.

Although same-sex couples in California who did not marry before November 4, 2008 are barred from marrying until Proposition 8 is itself repealed, the Court made clear that same-sex couples have a constitutional right to enter into a family relationship (i.e. domestic partnerships) with access to all the constitutionally based rights and responsibilities of marriage.
I realize, of course, that the right of gays and lesbians to marry in this state has only lately been recognized. But that belated recognition does not make the protection of those rights less important. Rather, that the right has only recently been acknowledged reflects an age-old prejudice that makes the safeguarding of that right by the judiciary all the more critical

Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.
Another one:
The decision Tuesday that upheld a state constitutional ban on same-sex marriage was social and moral nonsense.
Legal precedents notwithstanding -- and the six clearly nervous justices who made up the majority in this case reached all the way back to the state Constitution of 1849 for those -- Tuesday's decision was intellectually and morally incoherent. It essentially tells Californians that a right as fundamental as the ability to choose the marital partner of your choice is a kind of judicial lottery ticket -- if you got in early, you win, but those who arrived a few days late lose. Sorry.

You could feel the justices straining for their convoluted result in every tortured sentence of Tuesday's 6-1 opinion, and it was impossible not to draw comparisons with the moral and legal clarity of the court's ruling last year that the state Constitution guaranteed gays and lesbians the right to wed the partner of their choice.
Consider this passage from George's latest majority opinion, asserting -- against all reason -- that Proposition 8 did not entirely repeal or abrogate same-sex couples' right to privacy and due process or the "constitutional right of same-sex couples to 'choose one's life partner and enter with that person into a committed, officially recognized and protected family relationship.' " Instead, George wrote, "the measure carves out a narrow and limited exception to these state 'constitutional rights.' "

George went on to argue that Proposition 8 did not abrogate "all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection under the laws."

In other words, gay and lesbian Californians can board the marital bus but must take seats at the rear.

Moreover, denying an entire class of people the right to marry the partner of their choice is a "narrow exception" to the equal protection clause? And it's morally permissible to carve out exceptions to constitutional rights for specific groups, as long as it's done by majority vote?

So, if a majority of Californians voted to "carve out a narrow exception" to California's right to privacy and applied it only to Jews, would it be constitutionally acceptable? If Native Americans were accorded all the protections of the law by a ballot proposition, except the right to marry a non-Indian, would that be legal?

This is social and moral nonsense.

The court tried Tuesday to cover itself with a fig leaf of decency by allowing the 18,000 existing same-sex marriages to stand. It won't work. This is a logically and morally incoherent decision that simply will plunge the state into another round of bitterly divisive initiative politics, while adding fuel to the growing sense that all three branches of California's government have lost the ability to function in the public interest.
Very eloquently written. And they pretty much say it all.

Now two of the brightest lawyers in the country have taken up the fight and raised the bar by suing at the federal level on the grounds that Prop 8 was unconstitutional under the privacy, due process and equal protection guarantees of the US Constitution, a big gamble that makes a lot of gay rights organizations uneasy at the prospect of an unfavorable outcome in a US Supreme Court that currently leans right and won't lightly rule in favor of homosexuals.

We'll see what happens next, but a new battle at the ballot box is inevitable, possibly as early as next year.

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