In another blow for same-sex marriage advocates, the oral arguments before the California Supreme Court yesterday indicated that the majority will uphold controversial Proposition 8 and its ban on same-sex marriage.
Two justices who previously voted in favor of same-sex marriage under the state constitution indicated that they would reluctantly vote to uphold the new law. Chief Justice Ronald George and Justice Joyce Kennard, who were part of the 4-3 majority that vote for same-sex marriage in 2008, stated that they would have to yield to the will of the people. Kennard stated “Our task is quite limited. The people are those who have created the Constitution and what you are overlooking is the people’s broad power to amend the Constitution.”
The decision is likely to spur similar legislation in other states and may reduce the calls for a U.S. constitutional amendment. In the meantime, it is not clear what will happen to all of the couples who were married during the period between the two rulings. This could make for some interesting fights and a U.S. Supreme Court challenge. Those couples have already been married and have a claim to that prior status that would raise viable federal questions — even if it did not raise the core equal protection issue of same-sex marriage generally.
For the full story, click here.
Clarity is all I ask for Larry.
BIL –
Who bites troll bait?
This evasive non-answer comes from the person who just said “Obfuscation is the tool of propagandists and apologists.”
:sigh: But still I have to assume, based on your prior behavior, that it was addressed to me. So here’s the short version of my answer:
Say what?
Here’s the longer version:
Are you so set on trying to trash whatever I say that you can’t even be bothered to understand it before you go running off at the keyboard?
I noted Chief Justice George’s hypothetical – intended to criticize the arguments of those who wanted to overturn Prop8 – which suggested they would create a “one-way street” where it was easier to recognize a right than to deny or remove that recognition.
I said that would be a good thing. I said that “The history of human rights has been one of … increasing recognition of rights previously ignored or denied.” And I said that suggesting a right can be taken away by a simple majority is to denigrate it as being not a right “but a mere privilege dependent on current political winds.”
I suggested no equivalence between rights and privileges, in fact I counterposed them.
As for
you are claiming that the religious have the privilege of depriving the minority of their rights because it does not comport with their belief,
I have absolutely no clue where that came from. None.
What I said was that requiring a 2/3 vote of the state legislature (I assumed everyone would realize that was the 2/3 to which I referred) rather than a simple majority in a referendum “only raises the bar for stripping away rights, it does not eliminate it.” That is, it would still be legally possible to strip away those protections. Which is why, I said, it’s important to remember that what is at issue in the case are the legalities of recognizing a right, not the right itself. We are not, that is, arguing about the right of same-sex couples to marry but about the legal recognition of that right.
All of which means, you dodo, that I agree with you that human rights exist outside of the framework of law and that law is related to the recognition of such rights, not their creation (or elimination). And I fully agree that “Homosexuals have the right to seek love and happiness as much as heterosexuals,” a human right that exists with or without legal recognition of it.
(If you still doubt it, I invite you to follow the link to my blog and do a search on “same-sex marriage.”)
I will accept that I was not at clear as I could have been, but I didn’t think detailed explanations were necessary because I believed – and believe – I would be easily understood by anyone reading with their eyes instead of their biases.
As I’ve read and re-read all the comments in this thread a thought occurred to me. The essence of this whole issue is the
Californian propensity to have these special ballot initiatives. On the face of it there seems to be a good principle behind it: i.e. Let the people decide. I think though if an examination of these initiatives would be made, the result would be three-fold.
1. They allow special interests (In this case The Mormon Church, et. al.) to wage well-funded propaganda campaigns that inflame public opinion and raise false demons.
2. The biggest beneficiaries of this process are Corporatists and fundamentalist religious groups. Not the public need or good.
3. They actually interfere with the democratic process rather than support it.
There are other States that also have these special votes and my sense, with only the impression of memory to go on, is that they usually involve issues where big money proponents and/or opponents carry the day with propaganda and false characterizations. Our governmental system as constituted is of course far from perfect, but it works to a good degree, I believe this “voters choice” process often negates process and replaces it with emotionally charged debate that distorts the issues. This is what happened with Prop 8 in California and its’ sister Prop 2 in Florida.
Finally, although not quite the same thing (but of the same idea) we see the California recall of Grey Davis as Governor. It was based on a financial crisis that we later learned was deliberately caused by Enron’s greed. At the low point of his public disapproval he was recalled. The resultant gubernatorial election circus elected a famous action movie star, whose career was on the wane and who ran against a field of candidates that bordered on the farcical. How does that feel now Californians with your State on the verge of bankruptcy and your economy in the tank? You replaced a boring person with a charismatic one who promised fiscal reform. A man who in reality had close ties to Enron. The reform they’re getting is certainly fiscal
Who bites troll bait?
BIL –
Who are you addressing?
Rights are inalienable and inherent to the human condition. See Thomas Jefferson and the Declaration of Independence.
Privileges are rooted in a sense of entitlement, usually self-imposed and/or taken without consent of the totality.
There is is a difference.
While it’s true that the recognition of rights by the totality is an incremental process, there is no argument to be made for their equivalence. Go on down that path. It’s a dead end. Just because those with privilege don’t recognize a right does not mean that right does not exist. That’s at the core of both the French and American Revolutions – the “privileged” decided to piss on the rights of others for their benefit. It worked out so well for those claiming privilege. And that is what you are claiming, that the religious have the privilege of depriving the minority of their rights because it does not comport with their belief. It’s the same argument they used to make about blacks. Again, see how well that worked out.
Homosexuals have the right to seek love and happiness as much as heterosexuals. No “law” set by those with privilege to do so will change that fact. They have that right simply because they are human. A law that restricts a fundamental inalienable right like that is not a just law, but tyranny.
Contrast to the right of women to vote. Or the extinct right of primogeniture. One is a right, one is a privilege despite both bearing the label “right”.
Just to be clear.
Obfuscation is the tool of propagandists and apologists.
Self congratulation for pointing out the obvious isn’t analysis.
Jill –
Thank you.
LarryE,
I think you’ve made several good analysis of cases presented here.
Oops!
Sorry for the double post. The first one didn’t appear after a few minutes so I thought the comments couldn’t handle the blockquote, so I reposted without it. My bad.
The point that struck me in the linked article was when Chief Justice Ronald George
posed a hypothetical in which same-sex marriage wasn’t upheld by the court, and then was followed by two initiatives – one that legalized such marriages and a subsequent one that outlawed them.
Wouldn’t it be a “one-way street,” he asked, if one group was allowed to extend rights while another was prohibited from removing them?
I’m very tempted to say “Yes. And Good.” The history of human rights has been one of expansion, one of gradual but increasing recognition of rights previously ignored or denied. A “right” that can be taken away by a simple majority vote is not a right at all but a mere privilege dependent on current political winds.
(And yes, I am aware that requiring a two-thirds vote only raises the bar for stripping away rights, it does not eliminate it. That only serves to emphasize that what we are talking about here is not actually rights or right-and-wrong but legalities. And as we all know, the law and justice are not the same thing.)
CCD –
what a maroon!
Just FYI, as far as I know that phrase originated in a Bugs Bunny cartoon. 🙂
The point that struck me in the linked article was when Chief Justice Ronald George
I’m very tempted to say “Yes. And Good.” The history of human rights has been one of expansion, one of gradual but increasing recognition of rights previously ignored or denied. A “right” that can be taken away by a simple majority vote is not a right at all but a mere privilege dependent on current political winds.
(And yes, I am aware that requiring a two-thirds vote only raises the bar for stripping away rights, it does not eliminate it. That only serves to emphasize that what we are talking about here is not actually rights or right-and-wrong but legalities. And as we all know, the law and justice are not the same thing.)
CCD,
Amen! Starr is a “maroon”!
Discrimination — in any form — is unjust and illegal.
The battle for equality suffers a temporary set back.
LGBT civil right will triumph.
Kenneth Starr, what a maroon!
(Yes that looks like a typo, but the guy with the Jets logo used it a while back, and for me it captures the contempt Starr displays for civility.)
I was hoping that I never had to see or read anything about Ken Starr. He is one of the sleasiest people I have seen or read about. The idea that the state can take away human civil rights is scary. Why doesn’t it surprise me that Ken Starr is behind the movement to take away civil rights?
This will eventually become a Federal issue and then we can take the old Supremacy Clause out for a spin. Maybe the Commerce Clause too – think Heart of America all you lawyers out there. I always thought the next State’s Rights battle would be over marijuana laws, but this particular stupidity may now be the leading contender.
Ken Starr is a sleazy human being, who smugly believes he is principled. I think that even if the court upholds prop 8 it will only be a Pyrrhic Victory against the rising tide of freedom and equal justice for homosexuals. In our justified outrage against the ignorance that is homophobia, we lose sight of the fact that it is only a Potemkin Issue thrown up as a cover for a philosophy of giving the most to those who already have. It is a distraction to make people forget the real purposes of faux conservatives and faux Christians, which is to get people to vote against their own best interests. The mass of Americans from both the left, right and center are catching onto this game.
“The State of the Nation on Same-Sex Marriage: Key Court Losses Mean It May Be Restricted to Massachusetts For Now”
By JOANNA GROSSMAN (Circa 2006)
http://writ.news.findlaw.com/grossman/20060808.html
Good summary of the cases on this topic and contains a link to Chief Judge Kaye’s dissent in Hernandez v. Robles.
From the Article: “Rights are important, but they don’t go to structure,” Starr said. “If you tinker with the structure and undermine the authority of this court, you’ve gone too far. But, your honor, rights are ultimately defined by the people.”
Starr raised a few eyebrows when he suggested that voters could likely ban anti-discrimination laws, prevent gays from adopting children, and just about any other thing they want — as long as it doesn’t affect government structure.
“Under our theory,” he said, “the people are sovereigns and can do unwise things.”>>>
I’m rendered speechless.