Proposition 8 upheld

[solarbird]

California's Supreme Court has upheld Proposition 8, in its entirety, but also ruled that previously-conducted marriages are grandfathered in. The fundamentalists wanted the pre-8 marriage licenses revoked, but didn't get that, at least.

The ruling is essentially as expected; the argument that the changes were broad enough to the state constitution to constitute a revision were interesting, but to me inadequately persuasive, in part because the initiative targeted a small minority - the relationship to most of the state between the government and the citizens remained unchanged. Accordingly, I'm unsurprised. I haven't read the ruling yet, so I have no idea what the judges actually thought; this has been my own thinking on the matter, and I am unversed in California constitutional law.

However, with this initiative being upheld, minority groups of all sort - particularly small ones - should take away this: it's perfectly okay for the majority to fuck you up with one popular vote. If you think you're safe, if you think that can't happen to your little pocket of reality, wake the fuck up, because it can.

eta: link to story.

eta2: I was right; from the decision, in regards to the state's equal protection clause:

Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights... Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision. ...

Neither the language of the relevant constitutional provisions, nor our past cases, support the proposition that any of these [constitutional] rights is totally exempt from modification by a constitutional amendment adopted by a majority of the voters through the initiative process.

That includes rights described as "inalienable" by the state constitution itself - quoting the decision again:

The state Constitution does not prohibit constitutional amendments qualifying or restricting rights that the state Constitution describes as "inalienable..."

So "narrow and limited exception[s]" to equal treatment under the law and other "inalienable" constitutional rights are purely a matter of popular vote in California. Have fun with that, guys.

Comments

[pocketnaomi.livejournal.com]

The California state constitution's particularly easy to change. This will be as useful to us, eventually, as it currently is to them. But it will never be reliable. That's always the tradeoff; either it's too hard to change to correct gross injustices, or too easy to change by popular whim.

[solarbird]

Perhaps. But what it really means is that rights aren't rights. At all. Instead, they're sufferance of the majority, which is specifically not the same thing as rights.

[pocketnaomi.livejournal.com]

Sure. That's always the way with rights which have not been long-enshrined in popular culture -- either they aren't rights because they're only there on suffrance of the majority, or they aren't even that, because they can't be wedged into a constitution that's too hard to change. It takes time. It takes way too damn much time, because the only way to secure rights is to engrain them so solidly into the mindset of not merely the majority but the overwhelming majority that even those people who don't like them wouldn't think to try to change them; it just wouldn't occur to them as possible.

Constitutions that move quickly can do no more than state the current viewpoint on who has what rights... and as you say, that can change at any moment. Constitutions that move slowly can provide some ballast for rights once they have been included, but guarantee they won't be included until long after the people would've accepted them. It's a question of which evil one prefers.

Ultimately, the only way gay marriage rights will be protected is through the slow change of enough minds that the ones which don't change will have no leverage, and then will die out. I don't like it. But I don't see any other way to make change secure.

[jennygriffee.livejournal.com]

Three guesses why I can't stand the initiative system.....

[zarq.livejournal.com]

So "narrow and limited exception[s]" to equal treatment under the law and other "inalienable" constitutional rights are purely a matter of popular vote in California. Have fun with that, guys.

I've now read the decision. I think that the court is explaining that they see Proposition 8 as a "disparate impact" problem, rather than strictly an equal protection issue.

What's your take on it?

[solarbird]

They talk over and over again about it being okay to carve out "narrow exceptions" to rights, arguing that "narrow exceptions" aren't abrogation thereof. If you can carve out targeted exceptions to rights - particularly in a case like this, where it was so clearly and obviously focused on saying "fuck you, hated minority group A," I'm pretty sure they aren't rights at all.

[zarq.livejournal.com]

I'm pretty sure they aren't rights at all.

I agree.

The court said quite clearly that in their view, changing the definition of marriage doesn't abrogate anyone's rights because the definition itself doesn't impart any legal rights that aren't already given/available under California state law:

The Attorney General, in his briefing before this court, has advanced an alternative theory — not raised by petitioners in their initial petitions — under which he claims that even if Proposition 8 constitutes a constitutional amendment rather than a constitutional revision, that initiative measure nonetheless should be found invalid under the California Constitution on the ground that the “inalienable rights” embodied in article I, section 1 of that Constitution are not subject to “abrogation” by constitutional amendment without a compelling state interest.

The Attorney General’s contention is flawed, however, in part because, like petitioners’ claims, it rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7. As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .” (Marriage Cases, supra, 43 Cal.4th at p. 781), such as the right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within that family.

I think they're full of crap. There's a VERY clear argument to be made that without marriage under the law, partnered same-sex couples do not enjoy the same legal rights as married heterosexual ones. Are businesses (health insurance providers, etc.,) required to treat the two groups equally? The question in my mind is whether the plaintiffs bothered to make it.

[solarbird]

I disagree that they don't think it abrogates rights. I mean, their words, again:

[Proposition 8] carves out a narrow and limited exception to these state constitutional rights

If equal, rather than separate-but-equal, wasn't a right, they wouldn't be talking over and over again about how it carves out an exception to that right, but that's okay.

I think they've opened up quite a can of worms here.

The plaintiffs had made the separate-is-not-equal case in the previous ruling that legalised marriage to start - it was the crux of winning that case - and leaned heavily upon that decision made by this same court. So, essentially, yes.

[zarq.livejournal.com]

If equal, rather than separate-but-equal, wasn't a right, they wouldn't be talking over and over again about how it carves out an exception to that right, but that's okay.

My impression was that their point is that abrogating ≠ limiting. It seems like a pretty ridiculous argument since the California Constitution explicitly states that the right to privacy is an inalienable right! (If this argument had solely been applied to Californian's right to due process, perhaps the court would have been on sturdier ground? Due process is a legally granted right, after all.)

I think they've opened up quite a can of worms here.

I agree. It feels like they're bending over backwards to contradict themselves.

[solarbird]

There's more in the full decision - c.f. Page 37:

we properly must view
the adoption of Proposition 8 as carving out an exception to the preexisting scope
of the privacy and due process clauses of the California Constitution as interpreted
by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757.

Applied tastily to both.

They are clearly arguing that "limiting" is not "abrogating," to which I offer my usual rebuttal, that similarly, banning the Star of David isn't "abrogating" your freedom of religion since you're still free to be Jewish and besides, you can wear whatever crucifix you might so desire.

[solarbird]

I mean, seriously, the entire point of Proposition 8 is disparate impact. That's both intent and function.

[llachglin.livejournal.com]

I received an e-mail this morning from Equality California asking for help on a 100-day campaign to build support for a measure to overturn Prop 8. I was disappointed in their work on Prop 8 but they seem to have taken the criticism to heart and their new plan looks good. They're putting ad campaigns featuring couples and their families and hiring up to 25 organizers (8 already) to go door-to-door in areas that voted for Prop 8 working to change minds, rather than running vague ads that didn't show any real couples, ignoring organizing work, and preaching ineffectively to the choir as they did with Prop 8.

Do you think that donating to that organization is a good idea, or are there other groups working in California that you consider more effective?

[llachglin.livejournal.com]

Their plan (http://www.eqca.org/site/pp.asp?c=kuLRJ9MRKrH&b=4815401), in bullet points:

We will knock on 40,000 doors in neighborhoods where we lost Prop 8.
We will have real conversations with more than 300,000 people across the state.
We will enlist 1,000 clergy to help spread the word that marriage equality is a spiritual value as well as a civil right.
We will air powerful TV commercials across the state featuring real stories from real families.
We will make marriage real to our neighbors, friends and family across the state.

[zarq.livejournal.com]

I also don't know anything about Equality California (http://www.eqca.org/site/pp.asp?c=kuLRJ9MRKrH&b=4815401), other than that they're a grassroots group that looks interesting. But I have been impressed by what I've seen of their ad (http://www.youtube.com/watch?v=d_WuhJSBzKs) campaign (http://www.youtube.com/watch?v=jBi5QJenrBU).

[solarbird]

It sounds like what we did in Oregon against Measure 9, and that worked. Maybe they've finally learned something.

eta: That said, I don't know much about who is putting what boots on the ground in California, so I can't really answer your primary question. Hopefully someone else reading here can.

[feste-sylvain.livejournal.com]

Thank you for the link to the 185-page decision.

This is going to kill a lot of my productivity this afternoon.

[solarbird]

They're small pages. And the ruling itself is quite a bit shorter, at only 13 pages. I'm still working through the case history.

[doragoon.livejournal.com]

Has same sex marrage EVER passed a popular vote?

[solarbird]

In the US, specifically? No. It's passed legislatures, but not popular votes. Should it have to?

Has interracial marriage?

How long after Loving v. Virginia (1967) did it take for interracial marriage to have majority popular support?

[thomwatson.livejournal.com]

It's interesting that you point out Loving v. Virginia. California's Supreme Court has long boasted pridefully of its 1948 decision in Perez v. Sharp striking down interracial bans on marriage in the state almost 20 full years before the U.S. Supreme Court did so. Today's ruling suggests that had the bans on interracial marriage been effected by constitutional amendment rather than legislatively, the California Supreme Court may well have upheld them. The dissenting opinion in today's decision even points that out.

[griffen.livejournal.com]

When the Perez decision came down, a nationwide poll showed that 92% of all voters opposed ending anti-miscegnation laws. I think that changed sometime around 1992 (if I'm not mistaken).

If we had to wait for popular support for rights, we'd never have rights. As in this case.

[doragoon.livejournal.com]

Gender and Sex is not the same as race. If you want the government to treat men and woman the same, get them to pass the Equal Rights Amendment. But then women would be treated ACTUALY the same. In divorce, in the draft, in everything. If you REALLY think men and women are the same, then ya, it is the same as interacial marriage. But if they are the same, then why do peaple prefure one sex or gender rather than the other?

[cafiorello.livejournal.com]

Men and women should be the same LEGALLY, as in, have the same legal rights and responsibilities. It has nothing to do with whether someone prefers one or the other. I prefer partners about my own age; that doesn't mean it shouldn't be legal for two adults 20 years different in age to marry.

Cathy

[solarbird]

No, but it's fortunate that we're not talking about upper body strength, aggression, pain tolerance, or total muscle mass. We're talking about the context you brought up - public support for laws against marriage. In both cases, you had public opposition to the marriages in question - in fact, public opposition to same-sex marriage at this point is lower than public opposition to interracial marriage at the time of Loving v. Virginia. If you go back in time and look at the debates regarding interracial marriage, they were exactly the same as arguments against same-sex marriage, including arguments that such unions couldn't produce "valid" children - or, in some particularly hyperbolic cases, children at all. Should public opinion have overridden the court decision in that case, as it did here?

[mtext.livejournal.com]

I'll just leave this here. (http://www.dailykos.com/story/2009/5/26/735571/-Read-page-36.-They-just-cut-Prop-8-to-the-bone.)

[solarbird]

The "label," however, does matter. Trivially, it matters - eventually - for Federal and interstate purposes. More importantly, the word matters for legal purposes within a state. See for example the recent ruling in New York regarding their CU law saying that the fact that the CU law was a different law to the marriage law meant, even though they were intentionally structured identically in the separate-but-equal sense, the mere fact that they were separate was legal cause to treat them differently in said court. And that proceeded to happen.

Also, on-the-ground experience in California shows that legal authorities can, will, and do treat CU couples differently in important legal ways to married couples, even though that's against the law. This also matters. Local officials can, will, and have disregarded same-sex CUs in ways that the word "marriage" stopped cold in its tracks. It's reasonable to argue that this is a matter of education, but that's... nontrivial, in reality.