Subscribe to Breaking NewsRuby-Sachs: Left-leaning California judge votes against hearing Proposition 8 cases
The California Supreme Court has agreed to hear a number of cases dealing with Proposition 8. But, as the LA Times reported, not all judges are on board to hash out the vote in the courtroom.
Specifically, Justice Joyce Kennard, a long-time supporter of gay rights, voted not to review the Prop 8 challenges. Instead, she hoped that the court would limit its review to the validity of existing gay marriages.
It may seem that this proves that even ardent supporters of equal rights don’t think that Proposition 8 is a revision to the Constitution. However, the actions of Justice Kennard and others on the court are more indicative of the impossibility of the task to come, than a personal change in views about gay marriage.
It is political suicide for a Court to overrule a majority of the state’s population. Huge outrage will be directed at the courts, not just by conservatives, but by all citizens who would rather see law made in the legislature, and not in the courtroom. If the court is going to take the leap for equal rights that we believe they should, it is not politically viable for the most left wing judge to lead the charge.
When it comes to controversial tactics, better to have an irreproachable, centrist or right leaning adjudicator decide in favor of the minority. This will lend more legitimacy to the decision and will insulate it more from partisan accusations.
I still assume that the court will not have the courage to overrule the voters in California. But so far, it seems that Justice Kennard is playing the right game.
It would appear that democracy is dead in the United States. Courts are an essential part of the democratic process and are supposed to be independent, making rulings without fear or favour. It appears US courts have become a place where decisions are taken on whims, personal preferences, political pressure and career aspirations, rather than on the spirit of the law. Are there now only two branches of government left in the US, or is there the real danger(as was almost the case under Bush) that the executive and legislative will effectively be collapsed into one branch of government? This does not bode well for any human rights in the US, gay or otherwise.
I’m a California appellate attorney who has, for the last couple of years, been working on the same-sex marriage cases in the Supreme Court (I drafted an amicus brief on behalf of over 32,000 lawyers in CA, prior to the May 15 decision legalizing same-sex marriage; I drafted an amicus letter that filed last week, urging the Supreme Court to hear the Prop. 8 challenges).
I believe you are reading Kennard’s unwillingness to grant review incorrectly. Here’s the bit in yesterday’s Supreme COurt order about Kennard: “Kennard, J. would deny these petitions without prejudice to the filing in this court of an appropriate action to determine Proposition 8’s effect, if any, on the marriages of same-sex couples performed before Proposition 8’s adoption.”
This doesn’t say anything about the merits of the constitutionality question. By saying she would deny the writ petition, she is just saying that she doesn’t think the Supreme Court should exercise original jurisdiction over the matter (except as to determining the status of the currently married same-sex couples).
This isn’t necessarily an ominous sign. All it means is that Kennard doesn’t think determining the constitutionality of Prop. 8 needs to be fast-tracked. Rather, it should be allowed to wind its way up through the court system.
The only reason for the court to take the unusual step of hearing a case right off the bat, rather than letting it go thru the lower courts first is if there’s some pressing, immediate need for it to do so. She thinks there’s such a need as to the presently married couples – people who even as we speak are proceeding as if they’re legally married. She doesn’t think there’s an urgent need to address the constitutionality of Proposition 8. She may want to let another panel take a look at it first. She might want to buy time so that people can continue to evolve on this issue. Hopefully that’s all it means.
Lest forget Colorado Amendment 2’s fate in 1995 with the U.S. Supreme Court. It would have effectively prevented any laws banning discrimination against gays, and thereby nullified gay rights laws that already existed. The case, Romer v. Evans held in Justice Kennedy’s majority opinion that: ” the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint” and “It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.” I am sure this is being used to help us win this case.
Give me a f**king break. The state legislature in CA has already sent legislation to the governor’s office TWICE allowing gay marriage. Both times it was vetoed by that Governor Terminator. I imagine if that had happened the same rabid hate mongers would have worked to change their state constitution to overturn that law, passed by their elected representatives.
This whole issue is just a matter of time. Gays and lesbians are never going away, but thankfully the hateful people and right-wing Un-American extremists are slowly dying off. In another 5-10 years they will be in the minority and won’t be able to whip up the voting population they way they were barely able to this time around. It’s just a matter of time.
And a matter for 3 or 4 scary Supreme Court jurists to pass away as well.
From the article:
“Huge outrage will be directed at the courts, not just by conservatives, but by all citizens who would rather see law made in the legislature, and not in the courtroom.”
Excuse me, but didn’t the california legislature vote FOR gay marriage not ONCE but TWICE? And didn’t AhHHHHNOLD veto it not ONCE but TWICE????
Seems to me that the legislature has done it’s part already and been rebuffed. The COURT is the proper plce for this to be decided and their May 2008 ruling makes plain and clear that any attempt to pass a majority-rule proposition to eliminate equal rights for gays would be rejected – again.
From the article:
“Huge outrage will be directed at the courts, not just by conservatives, but by all citizens who would rather see law made in the legislature, and not in the courtroom.”
Excuse me, but didn’t the california legislature vote FOR gay marriage not ONCE but TWICE? And didn’t AhHHHHNOLD veto it not ONCE but TWICE????
Seems to me that the legislature has done it’s part already and been rebuffed. The COURT is the proper plce for this to be decided and their May 2008 ruling makes plain and clear that any attempt to pass a majority-rule proposition to eliminate equal rights for gays would be rejected – again.
Proposition Hate basically comes down to this:
“You cannot enter into a civil contract, like everyone else, because it has the same name as a ceremony in my church, for which you would be ineligible, if you were a member, which you are not.”
In other words, it doesn’t make sense.
It not only violates the equal-protection clause of the California constitution, it also violates the equal-protection clause of the fourteenth amendment to the US constitution, which explicitly regulates the states’ laws. True, the judges on the California Supreme Court are not federal judges and cannot adjudicate federal laws, but as residents of the US, they can’t violate them, either. That means they have to make a good faith effort to make a decision that is not illegal on the federal level.
If the judges fear the electorate, then they are not fit to be judges anyway.
All this proves is that the proposition process in California is not a tool of democracy, but of mob rule.
Sorry Ruby, but I don’t agree with you on this one. Actually, the court system is exactly where this kind of issue SHOULD be decided. Regardless of the emotions that some of the general public may feel, it is the duty of the state judiciary to uphold its constitution AND to be exceedingly careful when attempts are made to amend it. In this instance, the rites of a minority classification of people have been put up to a popular vote by the majority. Amending the state constitution to deny a whole classification of people a basic human rite should NOT be an option available solely through the legislative process (if at all). It very much IS the duty of the judiciary to protect a minority group of people from the overreaching of the majority, especially when it comes to enshrining less than equal status into their constitution.
This entire case shows the major weakness in the public referendum system. We have allowed the only check against the tyranny of the majority to be how large the checks are written to either side. Our elected officals balance one another out, gridlock forces compromise and discussion – granted not all of it is productive – but without that discussion you have knee jerk legislation and admendments that are not written but bought. We all are paying that price now. I hope that the justices of the CSC will realize their unique position as the only check avaiable to the people wronged and give this case the consideration and dicsussion it deserves.
“Huge outrage will be directed at the courts, not just by conservatives, but by all citizens who would rather see law made in the legislature, and not in the courtroom.”
But the CA legislature voted in favor of gay marriage. There is a big difference between lawmaking by a deliberative legislative body, in which representatives are tasked to represent the greatest good for greatest number the people, and lawmaking by initiative, which could be termed “mob rule” or “tyranny by the majority”. In Massachusetts, marriage equality was saved by a 4 year deliberative process in the legislature. In fact, at the end, many of our legislators voted for marriage equality in order to prevent the kind of media free-for-all generated by a referendum. Perhaps the excess reliance on initiatives in California is to blame for loss of marriage equality there.
Order can be born from chaos.
Emma, I gotta go with Cindy Tobisman on this one. Not to mention that Kennard is now on record as having kicked prop 8 challenge to the trial curb. It is all good.
There is a time in all our lives when we are called upon to stand up for what is right. These justices are in such a position. It is better to pray that they have enough personal strength and to send them some positive vibes then it is to be negative about the outcome.
You kind of remind me of my neighbors who said there was no way Obama could win because he was part AA.
Try imagining what is possible and believe it can happen…and it will.
GAY MARRIAGE OR CIVIL UNIONS WITH FULL EQUAL RIGHTS THATS MY VOTE
Another reason not to read too much into Kennard’s statement is what she said when she concurred with the majority in May, recognizing same-sex couples’ fundamental right to marry. In her concurrence, she described application of the equal protection clause as one of the gravest and most important of all judicial functions.
These judges are, hopefully, more courageous than letting the threat of recall sway what they know to be the correct result: The majority cannot be permitted to vote on minorities’ fundamental rights. This isn’t a “gay” issue. This is an issue that affects ALL minorities. If Prop. 8 is valid, what’s next? Prop. 9 is an amendment to prohibit immigrants from having access to social services. Prop. 10 is an amendment to preclude women who have ever had a divorce from marrying, etc.
This should be an easy case. People can take issue with the Cal. Supremes’ initial decision to get involved – to decide that same-sex couples had the right to marry. But that genie is already out of the bottle. Now, the question is much more basic: Can the majority strip rights from minorities. The answer is easy: NO.
P.S. The initiative process in California is a complete disaster. The voting public should not be legislating. The voting public does not have a legislative analyst. It doesn’t have caucus recommendations re: the unintended consequences of a piece of legislation. Basically, all propositions are just a shot in the dark. I’d like to see an initiative to end the initiative process. (It’ll never happen, but it would be good if it did.)