Subscribe to Breaking NewsRuby-Sachs: A Review of the Prop 8 Decision
The overarching conclusion of the California Supreme Court today is that Proposition 8 was no big deal.
After all, same-sex couples still have all the rights included in the “marriage bag” and so the actual effect of reserving the term marriage to heterosexual couples is not significant enough to warrant a more extensive constitutional approval process.
The main focus of the majority’s decision was on the distinction between a constitutional amendment and a constitutional revision.
Amendments are small changes requiring only a majority vote and revisions are larger changes, changes to the basic governmental plan or framework, that require a debate and approval process in the California State House as well as amongst the electorate.
As the Court writes: “Proposition 8 does not by any means “repeal” or “strip” gay individuals or same-sex couples of the very significant substantive protections afforded by the state equal protection clause either with regard to the fundamental rights of privacy and due process or in any other area, again with the sole exception of access to the designation of “marriage” to describe their relationship.”
Because the effect of Proposition 8 is so “minor” we don’t need to classify it as a revision and it can stand, as is, after a simple majority vote.
But the California Court offers no real analysis for its conclusion that simple nomenclature is really a minor matter. This, despite the fact that the offhanded treatment of the term marriage forms the basis of their decision to uphold Proposition 8.
Justice Moreno, in his dissent, comes to the opposite conclusion. Enforcing equal protection requires protection for all aspects of the law, including nomenclature. He even quotes the Court’s previous conclusions in <em>Re Marriage Cases</em>:
“Denying the designation of marriage to same-sex couples cannot fairly be described as a “narrow” or “limited” exception to the requirement of equal protection; the passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description. “[T]he constitutional right to marry . . . has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution . . . .” (<em>Marriage Cases</em>, 43 Cal.4th at p. 781.)
Justice Moreno concludes that upholding Proposition 8 - a ballot measure that concretely denies equal protection and creates a legal distinction between two groups for no other reason than a fear and hatred of a minority by the majority – will “emasculat[e] the equal protection clause of the California Constitution as a provision of independent force and effect. ”
If one agrees that a legal distinction between two similarly situated groups is nothing to scoff at, it is quite possible that Proposition 8 was a revision.
Justice Moreno explains that revisions to the Constitution may be structural, but are not limited to structural changes and may also include amendments that, “substantially alter the substance and integrity of the state Constitution as a document of independent force and effect.”
Justice Moreno’s point – and it is an important one is that if you refuse to dismiss the pain and suffering caused by Proposition 8 and address the legal discrimination it enshrines in the Constitution as being important and dangerous, you cannot consider Proposition 8 a simple amendment.
The majority never addresses this point. It calls the ballot measure a minor change that carves out a discreet exception to the equal protection clause and moves on to a detailed description of case law that ceases to be relevant when the court using that case law refuses to engage with the human outrage and controversy surrounding the subject of their decision.
Failing to uphold equal protection rights for same-sex couples is one thing, but doing so without engaging in the real debate over the importance of marriage, rather than civil unions, is a disservice to California’s people and to the body of jurisprudence that forms the basis of many legal rights and responsibilities enforced in the State.
Justice Moreno is a man of courage and integrity. Now if there were only three more individuals on the California Supreme Court with similar qualities Proposition 8 would have been rejected.
A-men Sister. Separating two groups will only cause more problems. isn’t this country build on “ONE nation under god?” Not two seperate peoples in one country.
We Will have out time.
The Supreme Court of California provided a clear plan for the LGBT community of California, to claim the word marriage for their own.
Show that harm is done to LGBT couples by being denied access to the word marriage to describe ones civil union, as has been done in New Jersey, and which is now possible for 18,000 married Californians, who are legally married, as contrasted with the experience of those who are not legally married but have civil unions, or no single descriptor at all.
Use the word marriage in everyday life to describe ones civil union so that, in the minds of the general public, the the relationship that civil union currently points to is indistinguishable from the relationship that the word marriage points to. Claim the word marriage as your own. Use it, embrace it, and let it be the only word used to describe ones relationship with ones spouse. And soon, marriage will be claimed legally as well.
The lone dissenting opinion of the California Supreme Court got it right. The rest of the Justices were mere cowards simply trying to fashion and cobble-together some arguments to support abdicating their responsibilities in upholding rights of the minorities in the face of oppression by the majority.
The conservatives got the pretty box of the word marriage, emptied of all its contents, and the California Supreme Court provided a clear plan of action for the LGBT community in California, to not only get the pretty box, but to make sure it can’t ever be taken away again. The California Supreme Court justices basically gave their full support to the future of minorities in California, while staying inside the law and addressing only the question before them. They are working for you, not against you. They have provide all the material needed to settle the question of same-sex marriage in California once and for all, with no possibility of making an error because one doesn’t know where the Supreme Court stands on many issues that may have been overlooked. They have also clearly told the opposition that their case is hopeless and to move on.
Very disappointing, but its a small battle lost. This isn’t about the word marriage, its about gaining acceptance in a society that is still frequently hostile to same-sex couples. A court decision would have been little progress. It would have just resulted in more idiots screaming “activist judges”.
What we need is a successful voter initiative in 2010 to repeal Prop 8. It will put the issue to rest once and for all in CA and make a statement to the rest of the country.
The full decision is worth reading in its entirety.
http://www.courtinfo.ca.gov/opinions/documents/S168047.DOC
First of all, have you actually talked to a lawyer before you wrote this.
Second, you don’t know what you are saying. The court is bound by certain laws and rules. And they can’t overturn them without those being met.
Third, this court laid out a road map on how to succeed within the parameters.
Fourth, you get one day to be pissed and hysterical and protest. TOmorrow, get to work to overturn this.
Put the issue back on the ballot for November- and keep putting it on until you win.
1) Boycott Calif. products including Calif wine. 2) Referendum time for st8 marriages=outlaw ALL divorce.
The biggest problem I saw, in reading the majority decision is how clear they made it that they really weren’t ruling on the law. They start of by stressing that they are ruling on the law, and not their personal opinions. In a Supreme Court opinion, one would expect that that would go without saying. The fact that they had to point it out is telling.
Moving on to the case law they cite, they totally missed the boat. It uses ridiculously flawed logic to suggest that ONLY changes to the structure of Government can be considered revisions. The case law that they say supports that conclusion never addressed that question, and furthermore, it’s ludicrous to suggest that those who framed the California constitution would have reserved a much higher standard for administrative changes than for sweeping changes to the core values embodied in the constitution.
While it is accepted that any constitutional change that alters the structure of government may be considered a revision, that does not mean that ONLY those changes that alter the structure of government can be considered revisions. To use an age old analogy, if can apply the logic of the majority as follows: all cats have four legs. My dog has four legs. Therefore, my dog must be a cat.
If we sit down and use our brains for just a moment, we realize how ridiculous this sort of thinking is, but that is EXACTLY what the majority on the Court did. In fact, even Justice Werdegar, who ultimately sided with the majority, refused to sign onto the majority opinion and wrote her own, criticizing other justices for taking such a ridiculous view of what did and did not constitute a revision. While that opinion ultimately arrived at the conclusion that Proposition 8 still didn’t meet the threshold, it is noteworthy to see that these guys can’t even agree what is and isn’t a revision, let alone whether Proposition 8 met the standard.
Further, the majority basically said that it’s ok to have an exception to the Equal Protection Clause so long as it is narrow. Pardon me for just a moment, but that clause does not guarantee equal protection for some people, or most people. It guarantees equal protection under the law for ALL people. Proposition 8 alters that fundamental underpinning of the California Constitution. If you so much as take rights away from even ONE person, then the Equal Protection clause is not being properly implemented. This is one of the few cases where things are actually black and white. You’re either protecting everyone’s rights or you aren’t.
The ruling is even messier when we now consider the fact that it creates three tiers of citizens in California. You have heterosexuals who can marry when they want (and who could conceivably divorce and remarry). Next, you end up with the 18,000 or so same-sex couples who got married before Proposition 8 passed. They’re married, but if any legal changes were made to their unions, it’s not clear whether such changes could be rescinded in the future. Finally, you have the same-sex couples who can’t marry at all. What a mess. What Californians don’t seem to realize is that they are a global laughing stock. They have managed to amend their constitution over 500 times since 1849. The US Constitution has been amended 27 times. California has the dubious distinction of requiring a 2/3 vote to pass a budget, but any minority can be stripped of fundamental and “inalienable” rights by a simple majority. Perhaps the majority on the court needs to look up the word “inalienable” but if any of them are reading, I will provide them with a definition here:
adj. not alienable; not transferable to another or capable of being repudiated: inalienable rights.
You cannot say that a right is inalienable unless someone votes it away. If it can be voted away, then it was never truly inalienable to begin with.
There are more problems with this ruling than I can even begin to outline. But with every day that goes by, California is turning itself more and more into an international disgrace. Its institutions of government are paralyzed. It’s bleeding red ink as never seen before. It’s an example of the worst risks associated with mob rule. It’s time for them to scrap their existing Constitution, hold a Constitutional Convention and start fresh, with a document that takes the handcuffs off government, lets politicians and judges make the difficult choices needed to govern, and severely curtail the initiative process.
Finally, one way or another, I encourage every Californian to use their power at the ballot box. I don’t just refer to the likely Prop 8 repeal effort coming next year. I refer as well to the judicial retention elections. Vote against every one of those justices who violated their oath with today’s ruling. Only one of them remembered his duty, and that is Justice Moreno. As the lone holdout against Proposition 8, he is to be commended for his courage in standing up while his colleagues disgraced the bench as they sought cover.
Such a sad day in history
Maybe the term “marriage” between a man to a woman (forget civil unions, domestic partnership) all very ‘exclusive’ can be changed to some sort of a one-all inclusive universal contract like something in latin (since some legal terminology is in Latin-Civilis vinculum omnimodus humanus which roughly translates universal human bonding contract
” Solomon in the Bible ” In this case the court just cut the Baby in half and both sides are highly disappointed. Bizarre you can’t pass a state budget or an income tax increase without a 2/3 majority vote. Yet you can deny two consenting same sex adults the right to marry with just a 52% vote. Yet maintain old same sex marriages ? Now we have: The Haves, Have Not’s and May Never Have without a much further fight will be ?
2010 Ballot Measures with more simple majorities ?
Mark H. * Long Beach, CA
The Problem with this is … Plain and simple… the GLBT Community will never see CUPPING ( Civil Union Partnerships) as Marriage.. It isnt marriage… It will never be marriage.. so its bogus for them to try and make us say oh lets get cupped and call it marriage… In reality its propeganda from the Breeders of America… just so they dont have to Legalize Marriage for the GLBT Community… and we will accept second rate Marriages..