May 27th, 2009


Proposition H8 // topical

So I'm seeing a lot of misunderstanding getting tossed around and thought I'd put together some thoughts on this issue. I've had some time to think on it, discuss it with various individuals (one benefit of working on a university campus -- professors love to talk), and most importantly I've read the entire opinion and took the care to make sure I understand it. Not hard, given how clearly it was worded (I was shocked at the lack of 'legalese').

Preface: I don't like this amendment one bit. It clearly does not belong in the CA constitution, but that's just my (minority) opinion.

1) I think the court did a wonderful job. Given the questions before them, and the historical precedent they had to follow, this decision makes perfect sense. Frankly, given how educational the opinion was and all I learned from it, I am having trouble seeing how the lawyers thought they had a leg to stand on. This is clearly reflected in the fact it was a 6-1 decision. And quite honestly, I think the dissenting opinion was slightly grasping at straws. So I fully support this court opinion. Much though I am saddened by this amendment, I must admit that it was legal and the court did their job well.

2) The removing of rights from an unfavoured minority is not historically unprecedented in this state. The opinion is quite careful to enumerate quite a few examples where the majority went to town and stripped a minority of very basic rights. A few examples for you:
) the right to vote was stripped of anyone who was not literate in English
) the right to freedom from unreasonable search and seizure was stripped from a class of criminal (and remains stripped, if I am understanding the language properly)
) the right to life was stripped from a class of criminal (the death penalty was enacted, and remains active)
) racial segregation was allowed in housing markets (both rental and purchasing)
... and others! The CA constitution allows for a simple majority of the voters to approve constitutional amendments on any topic whatsoever.

3) The court opinion also takes care to reference the recent other states where same-sex marriage has been allowed by courts striking down similar bans. There is a reason the bans didn't survive there but did here. Those other states have a special clause in their constitution which our state's constitution lacks. That clause takes certain rights (such as the right to equal treatment) and fences them off as being untouchable by the initiative process. Our constitution allows any amendment to alter anything, even basic 'fundamental' rights. You want something that needs changing, how about getting this clause added in (after restoring equality, of course)?

4) Some have wondered why the *state* supreme court did not strike this down due to its (to our eyes) clear conflict with the *federal* constitution. I think the reason here is unknown to me, but I have some guesses. One, the most solid in my mind, the state court was never asked to consider the interaction between this amendment and the federal constitution. Courts (particularly supreme courts) are notoriously hesitant to consider any question that is not directly brought before them in the case (at least, that is my understanding from the literature I've seen on the topic). I didn't review the case materials, but I do know the published opinion doesn't mention the US 14th amendment anywhere (other than to say the CA constitution has similar provisions, but those are exactly what this amendment was intended to alter so they couldn't be considered to disqualify it). So I am left to infer that it was never raised by the lawyers. This does not mean they have tossed the 14th amendment, just that they never even considered it relevant to the question "is this law/amendment to our *state* constitution abiding with the rules of our *state* constitution".

5) In an odd way, I am somewhat glad we are in this situation now. We have previously had some states that allow same-sex marriage and some that do not, but for some reason the individuals in the states that do not allow it were (it would seem) reluctant to bring this case to the federal supreme court. Here in CA we obviously have a large enough group that it has the resources to take this case where it belongs. Equality of marriage is (in my mind) not a state-level decision. Just like in Loving, where the court ruled that various states having various levels of interracial marriage bans were all in violation of the US 14th amendment, so too here we finally will have a chance to get marriage limitations at the state level based on sexual orientation wiped clean for every state in the nation. It is a clear violation of the US constitution (and a national embarrassment) to have so basic a civil right as marriage not applied equally to all couples. And if you don't think marriage is a governmental institution, I refer you to the over 1000 *federal* laws (to say nothing of the various state level laws) that specifically reference it.
Also, as a personal note for those that like to insist marriage is a religious institution and government should get out: my religion (to the extent that I understand the teachings) specifically relegates marriage to the civil government and prohibits the religion from getting involved. This is not to say I'm against removing the term "marriage" from all civil law -- in fact I'd support such a movement simply because I know other religions think differently -- I just like to point out that not all religions claim the term "marriage" as their special playground.

So yeah, a few random thoughts on the topic. Slightly ranty at points, and for that I apologize. I tried to restrain myself throughout but at times failed.

I guess what I'm trying to say is, the time to be angry was last November. Given how our legal system is set up, to have received any other ruling would have been the injustice. The ruling given yesterday was the court doing exactly what they are there for. I dislike the amendment, but I must admit to being very satisfied with the correctness of the ruling. If you have not yet read the opinion, I'd highly recommend doing so. Perhaps I misinterpreted it, and if that's the case I'd love to hear feedback. I know its long, perhaps 150 pages or so, but it is very much worth the time.