Will California’s Supreme Court overturn Proposition 8?
In view of Governor Paterson’s response when questioned about a bill in support of same sex marriage, I was encouraged to see that Prop 8 is being challenged in the California Supreme Court . From the ACLU’s website:
AN FRANCISCO - Attorneys for same-sex couples, civil rights organizations and the state Attorney General’s office appeared before the California Supreme Court today to urge the court to strike down Proposition 8, which took away the right of same-sex couples the right to marry. At issue in the case is whether the ballot initiative process can be used to take away a fundamental right only for one group of Californians based on a trait – in this case sexual orientation – that has no relevance to the group’s ability to participate in or contribute to society. Because the case has serious implications for the constitutional rights of all Californians, it has generated unprecedented support from many national and state civil rights groups as well as California legislators, local governments, bar associations, business interests, labor unions, and religious groups. The California Supreme Court, which has struck down several other initiatives in the past, is expected to issue a decision within 90 days.
Let’s hope that Prop 8 becomes a minor blip in the struggle for equal rights for all Americans. Let Sean Penn’s admonishment to the voters of California, who allowed this to pass, be a harbinger of change and hope:
In wrapping up his own speech, Penn mentioned the protesters who lined the streets of Hollywood near the Oscar festivities, holding anti-gay signs: "We’ve got to have equal rights for everyone," he said.
Backstage, when asked what he would tell those protesters if he could speak to them, Penn responded: "I’d tell them to turn in their hate card and find their better self."
We’re talking about people’s lives, here. Harvey Milk got it. Governor Paterson gets it. We can only hope that California’s Supreme Court will get it too.
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This is a very tricky issue. While I do support gay rights and the right to full equality, I can not endorse a court striking down a legal change to the California constitution by the votes of citizens. That is a precedent that violates the whole concept of the separation of powers between the judicial, legislative and executive branches of government and makes the court far too powerful.
My ultimate solution for the whole issue is to remove government from the marriage business entirely and reserve that as a religious function of the churches. If we must have any government involvement at all, the role should be limited to granting civil unions to any two consenting adults.
I do want prop 8 overturned, but I do understand your point. I just wish that the courts could decide on the consitutionality of a ballot measure before it goes to vote. That would make the most sense to me.
I agree, Andrea. That is the most sensible way.
Mike - the majority of the citizens can’t band together and go against the constitution regardless of how they vote. Sure then can amend the constitution but that is not what is happening here. As I understand it - the Citizens of California passed a Proposition (Law) against gay marriage. Trouble is that law may be against the constitution. So the Law itself must be vetted against the constitution. That is what the Supreme Court of California is doing.
Re Andrea’s point - on the surface that makes sense, however I’m thinking that it would involve the courts before the laws are passed. A sense of activism (getting Judiciary involved in legislative) I’m not sure I would want to see.
[...] Prop 8 in California get overturned? Hope so the Constitution is [...]
All I can think of now is all the money spent and most likely wasted on Prop 8, if the courts overturn it. Why can’t everyone think sensibly before spending money?
Proposition 8 is an amendment to the California Constitution. The right of voters to amend that Constitution is grounded in strong precedent. Accordingly, the Court is signaling that it is very leery when it comes to overturning the will of the voters expressed in a legal fashion.
Again, I don’t agree with the Proposition, but am simply looking at this from a legal standpoint and the adverse consequences of a Court over-ruling the will of the voters. Here is a pretty good article covering the whole issue.
I understand but this paragraph is also important.
This is the argument.
So the issue isn’t gay rights per se but if such a ballot measure that broadly affects the constitution can be on the ballot in the first place.
Tough spot that California Supreme Court.
Naturally advocates against Prop 8 are going to try to come up with an argument that will win. The judges, however, are supposed to base their decisions on legal precedent and written law, which according to the majority of legal experts, supports the legality of Prop 8.
The best victory, in my opinion, would be an eventual referendum by the voters that overturns Prop 8. That will take a bit longer, but it will be a better and stronger decision.
California does have a long history of ballot measures amending their Constitution.
Mike -
We may be discussing different points. Yes, California has a history of amending the Constitution but I’m guessing that per the argument I cited (that gay rights folks are citing) that history doesn’t include “sweeping changes” which I’m guessing are changes to one area of the Constitution that affect another area. That seems to be the argument. Strong or weak - that is why we have a legal system.
Now I do agree that another referendum overturning Prop 8 is the strongest or better decision if after the legal arguments are heard and say Prop 8 is upheld.
I think the notion that ANY majority can merely vote to take rights away from ANY disfavored minority is a dangerous one. The U.S. and state constitutions ALL have as a basic function, the protection of minorities from mob rule. There is no need to “protect” that which most people agree upon.
If the majority in CA voted to ammend the constitution so that all gays were to be encarcerated, would THAT be good, fair and just, simply because it’s what the MAJORITY wanted? Would those supporting the “will of the majority” at all costs, defend a VOTER APPROVED ammendment such as that? Would you expect the courts to simply respect it as the hallowed “will of the people”?
What if CA voters overwhelmingly approved initiatives that took away the rights of people who were part of certain political parties to marry? Political affilitation is NOT a “protected class”. What if CA voters overwhelmingly approved an innitiative that stripped drivers licenses from ALL people over 40, or an innitiative where the state took possession of all children born out of wedlock? I don’t see the courts going along with these outcomes, EVEN IF they reflected the oh so sacred “will of the majority”.
America was purposely NOT set up as a pure Democracy specifically to avoid such abuses by the masses. There is a reason we were set up as Representative Republic and a good reason our founders set up the courts as a CHECK to the other bodies of government.
If courts are not supposed to determine and have final say on what is valid, just, fair and constitutional, then why have them at all? Heck, why even have politicians and legislatures. If the “will of the people” should reign supreme on ALL issues then let’s just get rid of all of the branches of government. Let’s just let the people vote on any and all things. With computers and the internet, we certainly have the technology to collect the voters will on any and all issues almost instantly.
Throughout the history of this country there have been MANY issues where the courts have told the majority “sorry…you can’t treat people like that” just because you don’t like them for whatever reason. Do you know how many social issues that most of us are now ashamed of and now consider silly would STILL be huge issues had they been put to popular vote? All kinds of issues and discrimination involving women, racial minorities, religious minorities etc. WOULD STILL BE a vibrant part of America today!
What about the legality of interracial marriage? Majorities have a grand history of passing laws and props that are there for no other reason than to punish various minorities and unpoplular viewpoints. What about COURTS throwing out the MAJORITIES will to have Christian and only Christian prayer and mythology taught and promoted in PUBLIC schools? The courts are not supposed to reflect and defer to and work towards implementing or even backing up popular opinion. THAT is the job of the legislative branch of government! Perhaps there is a reason why our system of government has ALWAYS positioned the courts as a check to ALL of the other branches?
I suppose it’s a drag when you really hate a group of people and the state stands in your way of degrading them. Just remember, MANY of you screaming for the right to treat gays unfairly, because it’s popular, belong to some group that at one time, THE MAJORITY in this country wanted to treat differently too. In most cases, you can thank those terrible “liberal, activist” courts and the “malcontents” of the generation before you for the fact that you now have the luxury of being the oppressor and not the oppressed.
Beautifully written! Well done.