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

[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?