Monday, November 10, 2008

Some More Prop 8 Comments


Taking it to the courts is what resulted in Proposition 8, and likely its passing as well. Americans don’t like having what they feel should be legislative issues decided in courts.

So you’ve lost any further court cases before you’ve begun. You can’t amend a state constitution with a state court. The best you can hope for is the Supreme Court ruling that demands all states conform, and I doubt the Supreme Court will be willing to touch it.

So barring that, you need to return to the legislative process, and thus, Andrew Sullivan is exactly correct. You have to persuade the people, not a judge, because a judge can’t do anything more for you.


Re: Brown v. Board of Education–there was this funny little thing called the 14th Amendment that happened well before Brown v. Board. The South, arguing that not only had the Amendment been shoved down their throat (that whole Reconstruction thing) but that their society required blacks and whites to be separate, took matters to court and won (Plessy v. Ferguson).

It was only after decades of quietly trying to persuade people as well as that little matter of fighting ably in a World War, desegregation of the military, the Cold War, and the Southerners absolutely crapping the bed on separate but equal that SCOTUS decided to “restore the rights of the minority.” Even then, Brown does not say what you think it says–but I’m not going to give a history class in the comment section.

So, to wrap this around to the Prop 8 situation–there is no Amendment in the California state constitution that the California SC can point to and say, “Nope, unconstitutional.” Indeed, if you start having the courts say, “The voters can’t amend the Constitution…” or that actually CA is ran by whichever 5 justices decide to vote on an issue, you’re probably going to end up doing a whole lot more harm than good. Notice that all the shamrocks and shenanigans of amending state constitutions didn’t start until the Mass. Supreme Court decided to make its ruling? Do you happen to remember what effect all those ballot initiatives had on the 2004 election as far as getting out the conservative vote? Now you’re wanting to, after the second more definitive rejection of gay marriage, have the California Supreme Court once again tell voters to go screw themselves? That, “Oh, we don’t like how the vote turned out, so now we’re going to basically say you shouldn’t have voted anyway”? Not a good plan, methinks, especially with regards to what it’s going to do for future voter turnout, secondary effects, rule of law.



Frankly I’m a fiscal conservative and I personally couldn’t give a rat’s a– about gay marriage...At least that is how I used to feel until gay marriage proponents went to the courts.

Here’s the deal. Any change in -laws- is irrelevant without a corresponding change in the -people and culture-. Why? Because a change in law forced by a court decision will only anger the people even more.

IMO you face the very real probability that doing this will end up having the state constitution, and possibly even the US Constitution, forcibly amended in an irreversible process.

*shrug* up to you folks. After all your tactics certainly have been so successful up to now.




Your battered wife comment, in addition to being hyperbolic, misses the point the rest of us are arguing. By going to the courts, you are doing the equivalent of pulling out a gun, shooting the bastard, and then expecting society to just accept your side of the story without question. While apparently this works in TN, in some places that would lead to the battered wife going to jail.

Quite frankly, if you can’t see the fact that giving the courts more power (i.e., allowing a handful of judges to overturn the will of millions) isn’t a shortcut to having the entire libertarian wing of this country turn against you, you’re lost. Yeah, it sucks. Trust me, as someone whose marriage greatly resembles the term miscegenation and whose grandparents can tell some wonderful stories of segregation, I understand why you may think that the courts are a panacea to the social ills. However, once again, how did that turn out for you in 2004? Do you think Arizona’s amendment didn’t suddenly grow a whole bunch of support in part because of what happened in CA (as well as the pro-side reframing the issue)?

So, yeah, rather than making crazy analogies to battered women and the civil rights movement as you go to court _again_, why not figure out ways to try and make people see that this has real human impact? Just a thought, but a little patience might ensure that not only you but thousands if not millions of homsexuals after you never have to fight this fight ever again.

Or, hey, keep shoving stuff down people’s throat via the legal system–then enjoy life in CT, MA, NJ, and maybe CA as your opponents shut the door in every other state in the union while they have the odds and examples of state supreme courts reversing the will of the people are fresh in others’ minds. Keep taking people’s kids to gay marriage ceremonies or trying to get things passed into school’s code of ethics–then acting surprised when parents pay you back in the voting booth. Let the mayor of San Francisco tell people things are going to happen whether they like it or not–then watch as they make sure the hill you have to climb to do so grows steeper and steeper.


As a practical matter, I do not believe the California Supreme Court will throw out this election or find ways of overturning the decision. The measure itself is a simple sentence with no wiggle room to reinterpret, and it is clearly a constitutional amendment (the argument that it’s a constitutional revision appears pretty weak to me). At least one of the justices who ruled in favor of gay marriage (in a 4-3 decision) will switch and support the validity of this vote.

If I’m wrong and the state Supreme Court does overturn it, there will be recalls initiated against those four justices. Many voters who were against Prop 8 would nevertheless be outraged that the Court was preventing the citizens from amending the constitution. The Court dares not be too blatant in substituting personal opinions for plausible legal interpretations. And the justices know that all too well; their jobs are on the line. They have the example of Rose Bird and two other justices who were recalled in 1986 over their categorical opposition to the death penalty (based purely on their personal philosophies).

What is much more likely to happen is a counter-initiative, targeted for the 2010 or 2012 general election, which would repeal Prop 8. And it will probably pass, since that’s clearly how public opinion is moving. In 2000, an identical legislative measure, consisting of the exact same sentence about marriage, was approved by 61% of the voters. Prop 8 received only 52% of the vote. Moreover, it laid down a precise blueprint for a future reversal.

The main argument by the Yes-on-8 side was that gay marriage would inevitably be taught in the schools if it remained legal. This was extremely effective, despite the No-on-8 attempts to pooh-pooh it. So now all a counter-measure needs to do is include language which strictly forbids the teaching or advocacy of gay marriage in public schools (at least without the explicit approval of parents). That will be sufficient to shift 2% of the vote.

Passing an initiative measure to allow gay marriage will be far more effective in the long run than relying on court rulings. Once such a measure is approved, much of the opposition will be eviscerated. After all, the majority will have spoken, and many people who oppose the idea will nonetheless acknowledge its legitimacy. Whereas if gay marriage is imposed by the courts, we’ll have another situation like the abortion controversy, which will fester for decades and contain the continuing threat that a realignment of justices could overturn the past decision.



In this case, yes, trying to overturn Prop 8 via the court system _is_ like using extrajudiciary measures. The court derives its authority from the CA constitution. If you say that it is unconstitutional to amend the constitution and, therefore, the will of five justices counts more than those of millions, than said justices are conducting a vigilante action with a thin veneer of authority.

Put a different way, the predominant reason for the courts’ existence is to adjudicate the rule of law. If the courts now say, “Well, you know, the rule of law says that the people get to change things as they see fit, but we don’t agree with that…” then the justices will have undercut the very document that their authority is based upon.

I’m glad that you feel a 14% cut is a victory–but I’d look at it as the SSM side just motivated the people of California to actually enshrine a definition of marriage in the constitution. Moreover, if the Supreme Court and the supporters of SSM had simply shown a little restraint and said, “Fine, let’s see what the people think before we start issuing licenses”, I strongly suspect that the measure would have failed spectacularly. However, since there was a rush to perform marriages followed by actions that basically amounted to taunting of the Prop 8 proponents…well, ye reap what you sow.

What you are apparently failing to understand is I am _not_ saying that you should just be good little victims, lie back, and take whatever happens. If that’s what you keep hearing–well, that imposed disability may be what’s harming your cause also. What I _am_ saying is that looking for another 5-4 decision that will inevitably be followed by a recall and reversal that will be tacitly approved by many who would otherwise be your allies isn’t exactly prudent. Nor is not immediately and ruthlessly suppressing those in your movement who are calling for attacks against blacks, Mormons, or Catholics. (Because nothing will screw you over faster than some idiot attacking some Catholic family with a Yes to Prop 8 sticker on their van and subsequently forcing some car crash that kills the mother or children.)

Instead, once more for the hearing impaired, I am saying that you need to actually look at the whole Civil Rights movement (not just the parts you like) and realize there were many things that set the ground work for Brown v. Board and allowed to make it stick. No one likes being told to wait…wait…wait, but only petulant children get the luxury of stomping their feet, screaming, and making life uncomfortable for everyone around them in order to get their way. In short, you have had a tactical defeat–but don’t let that lead to you deciding to try and seek the same kind of victory King Pyhrrus achieved.


Daniel Wiener, it would be quite surprising to me (refreshingly so) if any counter-proposition did contain a prohibition of teaching about so-called “gay marriage” in schools. An awful lot of us suspect that indoctrinating the normalization of homosexuality in schools and in society at large (via force of law as applied to churches, etc, regarding “illegal discrimination” and “hate speech”) is really the whole point of the agenda, with so-called “gay marriage” being the convenient vehicle. Although most people have ample tolerance for homosexuals and their lifestyle, and even compassion and affection for gay individuals, they absolutely do not look with enthusiasm at the prospect of “coerced approval”. Now, maybe I’m wrong about the real agenda. But these are the kind of concerns that are going to have to be answered.



Same sex marriage is simply not an underlying concept of the CA Constitution. Equal protection is, and the simple fact is that homosexuals are not banned by law from participating in the institution of one-man one-woman marriage. They do in fact, enjoy equal protection with respect to this institution. It really is that clearcut.

Now, since it is *your* side that wants to make fundamental changes to long established meanings and practices, and to create an unprecedented new institution that must be recognized under penalty of law by the citizenry, even going so far as to usurp the name of a different institution, isn’t it *your* side that should be seeking *not an amendment*, but a *revision* to the CA Constitution?


“Human rights are not the kind of thing that are subject to popular opinion, and our system of government is set up to prevent that as much as possible.”

The problem is that there is no consenus as to what consitutes human rights. Hell, I would like to have the “human right” to a million dollars and a fast car.

The HBLT community are essentially arguing that setting up a social institution that doesn’t cater to their sexual preferences is equivalent to taking away the vote from blacks.

The problem is that gays do get equal rights - gays don’t lose the right to vote, or any other right guaranteed all other members of society. Gays do have preferences that are not catered for by some social institutions (they want to marry members of the same sex, not members of the opposite sex). But society catering non-homogenously to a small minority preference group doesn’t mean society is denying that group their human rights.

Let’s for example say that I am a collector of Bolivian stamps. I have a hard time to see it is valid to claim that my “human rights are being violated” because the city decided to build a football stadium and institute a “footballer of the year” award instead of a Bolivian Stamp Center and a BSCoTY award.

And yes, that goes even if you care really deeply about your preferences, or if your preferences have a genetic component (newsflash: Most preferences have a genetic component).

Finally, making end runs around the most important social institutions, such as the ballot box, is a violation of basic social norms and the rights of others far more flagrant than not getting your way with regards to the defintion of marriage.

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