As many of you heard, Connecticut’s supreme court ruled in favor of same-sex marriage today. Awesome.
However, next month Californians will be voting on prop 8, which seeks to eliminate same-sex marriage here. For the last couple of months, polls have been looking good, but earlier this week support for the proposition jumped by ten points. 47% of Californians are now in favor of eliminating same-sex marriage rights, with 42% opposing. If this proposition passes, it’ll reverse the supreme court’s decision and once again make same-sex marriage illegal. Now, the numbers are inexact, and pollsters are saying it’s still too close to call. But we need to pay attention to this.
A couple of quick notes: contrary to the lies supporters are spreading, the existence of same-sex marriage does not mean that officiants are now forced to perform these marriages. One thing you hear fairly often is that theoretically, people can now sue their places of worship if said place of worship won’t marry them. Sure, they could file a lawsuit – they could absolutely take the paperwork down to the courthouse and hand it to the clerk. But it’d be laughed out of court. Rabbis aren’t forced to marry Jews and non-Jews, even though that’s legal.
Also. This whole thing about forcing teachers to tell their students that homosexuality is okay? Please. The reasoning goes like this: since teachers sometimes talk about marriage in the classroom, teachers would theoretically be required to teach that same-sex marriage is just as good as hetero marriage. I actually wish that were the case, but no – the police aren’t going to break down the doors of classrooms in which teachers aren’t extolling same-sex marriage. It just isn’t going to happen.
My husband put it very nicely: supporters of prop 8 are framing all of their arguments as theoretical – as if Californians haven’t already been living with gay marriage (in our state, cities, neighborhoods, or homes) since June. They don’t want us to think about the fact that it’s a reality: first off, because that would call attention to the fact that they’re trying to take away actual rights, and secondly, because people might start to notice that civilization hasn’t crumbled to pieces yet.
And don’t get me started on that party-A-party-B-is-ruining-straight-marriage bullshit.
If you live in California, please volunteer to phone bank with the No On 8 campaign. And if you live in Connecticut, pay attention to this – the bigots are showing their cards.
Stay tuned for my diatribe against prop 4! Also opposition to prop 2, which people are claiming will force us to eat Mexican chickens. No, I’m not making this up.
(Cross-posted on Modern Mitzvot)
There’s been a wave of ads on TV about all these lies of what people, churches, schools etc. would be forced to do if Prop. 8 didn’t pass in the past several weeks. I’ve seen a couple anti-8 ads like the one between two women where one’s educating the other but not many of them.
I really hope 8 and 4 don’t pass. People should be more concerned about the economic picture and state budget crisis than in restricting abortions and same-sex marriage. But then maybe it’s all connected.
I know there’s not a lot of money floating around here, but if you have a few extra dollars, here’s the no-on-8 campaign donation link:
http://www.noonprop8.com/page/?id=0052
One of the main things Proposition 8 does do is put the power back in the hands of the people to decide societal issues.
In 2000, Californians decided overwhelmingly against gay marriage but were overturned by 4 judges who decided thousands of voters couldn’t possibly know what they wanted. By legislating from the bench–effectively removing voter choice EXCEPT for a grass-roots proposition–these 4 people imposed their will on thousands.
Proposition 8 is the chance for voters to make their voices heard rather than be told their voices don’t matter because the court will make all of the decisions anyway.
Excellent post, thanks for the comprehensive info!
I won’t, I won’t! They’ll never make me eat chickens! NEVER!!!!!
(sorry, couldn’t resist)
Can’t wait to read this one too.
M wrote:
M, do you think the popular vote should decide all questions?
Suppose that 51% of Californians voted to take the right to marriage away from Jews or Muslims. Would you say that it would be wrong for the Court to overturn that law?
People should be able to have the chance to change things themselves–via voting and other grassroots campaigns–instead of simply relying on the courts to hand down authority. Maybe the ruling will stand and will be upheld by the voice of the people. Maybe the ruling will be overturned because of the vote, though I anticipate that the battle will go on no matter the outcome of the vote. Both sides will continue to press their agendas.
But without the ability to challenge decisions–or show that voters have the desire to challenge these decisions–we are not far from tyranny of the judiciary and our vote–already something many citizens devalue–will not matter.
M, it would be good of you to answer Ampersand’s question.
Do you think that if the citizens of California prohibited Jews from marrying or prohibited interracial marriage, the courts should not have the authority to declare that law unconstitutional?
—Myca
Like Myca, I feel you haven’t answered my question, M. I hope you will answer it.
But to respond to your most recent comment:
I agree. But you’re attacking a straw man, because no one here is arguing that voters shouldn’t have the legal right to amend the state constitution. (Although some, me included, think amending the constitution should take a supermajority rather than a simple majority).
Who do you mean by “they?” If you mean gay and lesbian voters – and you can provide evidence that the majority of gay and lesbian Californians voted against same-sex marriage – then by golly, I’ll start volunteering for the other side.
If by “they” you mean straight voters, however, then it really doesn’t matter what “they” want, because what gay and lesbian people do with their own lives is none of straight people’s business.
In honor of all the people who will be arguing it is up to the voters to decide same sex marriage, I present you a quote from Gay Marriage Killed The Dinosaurs, my favourite group on Facebook by far for its brutally honest expose of the fire and destruction caused by homosexual rights:
“Gay marriage should be decided by the people and their elected representatives, not the courts. The framers checked the courts, which represent mainstream public opinion, with legislatures created to protect the rights of minorities from the tyranny of the majority. Interference by courts in this matter is inappropriate, just as it has been every time the courts have tried to hold back legislatures pushing for civil rights.”
I’m glad there’s finally a group to represent the terror of those of us in Mass who have felt the effects of same sex marriage. There is blood flowing through the streets as I type this. Gushing rivers of hot blood. Is this what America has come to?
Unfortunately, it seems we have gone beyond “theoretically” teaching about gay marriage to actually taking field trips of gay marriages. This past Friday, a class room of first graders was taken on a school sponsored field trip to witness a lesbian marriage at city hall. http://www.protectmarriage.com/article/first-graders-taken-to-san-francisco-city-hall-for-gay-wedding
Protect children. They should not be pawns to politics. Vote yes on proposition 8
In response to M’s contentions, can anyone think of a major civil rights decision that was *first* established by a ballot initiative, as opposed to presidential proclamation, judicial decision, or legislative vote? Majorities of voters don’t generally decide one day, “I’m going to protect a minority population’s rights”– privilege means they don’t have to.
It bears repeating once again that we have a *constitutional* democracy, designed by the framers for just such an occasion as this. Here’s from Answer.com (not my preferred source of info, but it’ll do):
And now, although the state’s high court says that the constitution protects gays as a minority with full equal status under the law, some Californians want do an end-run-around human rights principles enshrined in the constitution by vote of a simple majority. And some people say that they HAVE to do so because gay and lesbian relationships are SO appalling and SO frightening and SO perverse that they have to be written in as a very special singular exemption from the normal human rights guaranteed by the state constitution.
It’s all legal, but it sure is hypocritical, short-sighted, and hateful.
Sigh.
A parent organized a trip of the teacher’s class to her wedding — you can read about it in the newspaper here. No child was forced to go, and every child who went, went with their parents’ permission.
What, exactly, is harmful about children being able to attend their teachers’ wedding, with their parents’ permission?
Needless to say, nothing about this story supports the claim “teachers would … be required to teach that same-sex marriage is just as good as hetero marriage.”
If you actually had a case to make, you wouldn’t need to lie so much.
Well, that’s hetero-normativity at work right there: if the teacher had been marrying a man, it would’ve been considered perfectly lovely that her class had come to the wedding. But because she’s marrying a woman, it becomes some subversive political act? It’s a WEDDING, it’s not a political statement. Voting no on Prop 8 will keep weddings out of politics, thanks.
I think it’s telling that the anti-gay crowd have so very little to say about the effect of 8 upon those whose rights they want stripped. They’re happy to scream, “Won’t somebody please think of the children!!!”, but they’re just as happy to ignore the pain they are planning to inflict.
Why is that? Have they not thought the matter through? Or is the dickishness of their actions simply incompatible with their naive view of themselves? If the latter, I can see why it’s easier for them to ignore the effects of their actions, rather than change their actions or the way they see themselves.
Here’s the Courage Campaign’s latest ad against Prop 8:
And here’s Molly Pier, the “Jewish Mother against Prop 8”:
tyranny of the judiciary
California’s Supreme Court justices are subject to retention elections (i.e., the voters have to approve keeping the justices on the court). If you think they got it wrong, you can throw the bastards out via ballot at the next general election after their appointment or, if they were appointed before the previous general election, at 12 year intervals. This is rarely a feature in most tyrannies. For reference, the justices who found a right to marriage are Chief Justice Ronald George, Justices Joyce Kennard, Kathryn Werdegar and Carlos Moreno.
Prop. 8 is of course constitutionally legitimate; if the California Constitution currently contains a right to same-sex marriage, and voters prefer that it not, they can amend it so it no longer says that. But moaning over “tyranny” diminishes the meaning of the term; ask someone who lived in Saddam Hussein’s Iraq if they got to change their Constitution or vote out governors, legislators or judges who had overstepped.
Amp:
Suppose that 51% of Californians voted to take the right to marriage away from Jews or Muslims. Would you say that it would be wrong for the Court to overturn that law?
If that law violated the Constitution it operates under, then yes. If it did not, then no.
Caoifornia law was created with the clear intent to regulate how heterosexual couples would marry. There was certainly no thought at the time by any of it’s framers that anyone could possibly interpret it to include homosexual couples. For some reason (I’m sure it’s actually well documented, but I don’t have the information at hand) it because obvious that it was now necessary to make plain what had already been plain; the law was meant to only give heterosexual relationships the state sanction of marriage. A few individuals on the State Supreme Court decided to do interpret the State Constitution to change this. The people, as they should, are now going to have the final say.
The people have always had the final say on rights. The Constitution itself was adopted by our representatives. The Bill of Rights was adopted on our behalf by our elected representatives based on open demands of the people. The final question of whether something is or is not a right has always – and in a democracy will always – be decided by the people or their representatives. California has given it’s people direct access to the legislative process, so this one is going to be determined by direct democracy instead of via republican democracy, but the principle that unelected officials will not have the final say on what is or is not a right will be preserved.
Don’t forget, too, that in this case we do not have a right recognized by the people that was then taken away by the legislature, executive or judiciary and which is now being challenged by the people – an example of which would be Kelo or Miller or various First Amendment cases. That’s the classic scenario on this. What we have here is a behavior that the people (most recently) or their representatives (in the case of the original marriage law) defined as NOT a right – that they have never defined as a right – that the unelected judiciary twice decided to redefine. It is not up to the judiciary to grant a right. That is the purview of the people, either directly or through their representatives.
marmalade:
some Californians want do an end-run-around human rights principles enshrined in the constitution by vote of a simple majority
But that’s the crux of the matter – and why, BTW, IMO you see such continuing controversy over abortion. A great many people believe that the California Supreme Court was wrong – that the California State Constution does NOT enshrine such an act as a right, and that just because the California Supremes says so makes it neither true nor correct. We’ll see whether they carry the day. For the people, not the courts, are the final authority on this.
Amp, I think overall you’re right that it should take more than a simple majority to change the California State Constitution. But given that in this case it was effectively changed by a bare majority of a handful of unelected people, I think it’s just for a bare majority of an entire state to be able to overrule them.
I just tried mentally replacing ‘heterosexual’ with ‘same-race’ and ‘homosexual’ with ‘different-race’ there. Do you think that’s a valid comparison? And if not, why not? Even Mildred Loving saw the two situations as analogous.
public opinion?
No, I wouldn’t say it’s valid. Race != sexual orientation. It’s also not clear to me that the framers of California’s marriage laws would never have dreamed that disparate-race couples would or should have the right to marry equal to that of same-race couples.
Hey, Amp – the “Click to Edit” clock claims to give you 30 minutes to edit your comment, but the actual time seems to be around 10 minutes.
M said:
Okay… So the homophobia is pretty appalling.
But you know the part that offends me MOST about this bullshit false rhetoric that the Pro-H8ers spout?
The part where anyone who paid a single damned second of attention in Civics or Government class knows that M’s whole statement is a BIG FAT LIE and purposely intended to mislead, and yet they keep saying it anyway.
Do you people even UNDERSTAND how law works? Is it that hard to figure out? Most of you had to take the class to graduate high school, so I can only assume that you either flunked out or… well, I can’t finish that statement without getting booted here.
But let me explain it to you in simple words and short sentences (wouldn’t want any of you to get confused, you know).
The Constitution takes priority over EVERY SINGLE LAW in the U.S. The California Constitution takes priority over EVERY SINGLE LAW in California. So, when the majority of voters enact a law that violates those constitutions, that law is, by dint of its violation of a “higher law”, now illegal to enforce and therefore struck down.
4 judges did not go MAVERICK in order to throw down the will of the voters. The will of the voters was illegal as it took away the equal rights guaranteed by the state constitution (and by the U.S. Constitution further up). The constitutions take priority when the judges had a question as to whether the law was legal. Constitutions are designed that way for a reason. Mostly to stop hate-filled bullshit like this… or at least stymie it a bit.
So the judges didn’t “legislate from the bench”. They did their job, which is to strike down unfair laws in order to protect a minority from the tyranny of the majority.
Now, you pro-H8ers are trying to use an actual legal way of changing that. But you’re basing your entire platform and reasoning on lies, bigotry, and hate. Which makes the rest of us a little suspect of your arguments (which are pretty much just the spouting of more hate and lies and bigotry).
So please… PLEASE!!!! Make sure you actually understand how law and the U.S. legal system (designed to protect us ALL from the government) actually works before you start throwing out clear mistruths in order to “justify” your support of hatred, inhumanity, intolerance, and cold, vicious bigotry.
I don’t have time for a full comment right now, but I wanted to point out — as I understand it, and I’m no Californian — that California’s judges are appointed, true, but they have to be elected to retain the office.
So all the complaints about “unelected” judges are mistaken or misleading; the judges do in fact face the voters.
Mister Mephisto, I appreciate and agree with your argument.
But regarding “But let me explain it to you in simple words and short sentences (wouldn’t want any of you to get confused, you know),” could you please turn down your tone a few notches?
(And I know it’s not easy. I feel your frustration, believe me.)
Forget Mildred Loving; twenty years before her case, the California Supreme Court had to strike down miscengenation laws as a violation of the federal constitution, even though folks like RonF knew that the framers of the state constitution didn’t foresee it being used to marry whites to Chinamen or Mexicans to Negroes. See Perez v. Sharp. That case notes that the first California miscegenation statute was enacted in 1850, the same year as California’s statehood, which is pretty indicative of the “original intent.”
No, I wouldn’t say it’s valid. Race != sexual orientation. It’s also not clear to me that the framers of California’s marriage laws would never have dreamed that disparate-race couples would or should have the right to marry equal to that of same-race couples.
Race isn’t the same as *sexual orientation*, but in the federal Constitution it is equivalent to sex. Compare the 15th and 19th Amendments. A prohibition on same-sex marriage is parallel to a prohibition on mixed-race marriage. In both cases, those who wish to preserve discrimination say that there is no discrimination because people of both races/sexes can marry, and that the limitation is equal on both races/sexes — it’s just that your race/sex determines whom you’re allowed to marry.
Mr. Mephisto:
So, when the majority of voters enact a law that violates those constitutions, that law is, by dint of its violation of a “higher law”, now illegal to enforce and therefore struck down. 4 judges did not go MAVERICK in order to throw down the will of the voters. The will of the voters was illegal as it took away the equal rights guaranteed by the state constitution (and by the U.S. Constitution further up).
I’m going to guess that you misunderstand the thought process that’s going on. I say that even though I don’t live in California and I haven’t followed the rhetoric. However, as I said above, I draw an analogy to the abortion debate. What the 4 Califorina Supreme Court justices did was to offer their opinion on how the California State Constitution should be interpreted in the absence of an explicit statement in it regarding the right of homosexuals to marry.
It’s my guess that at least a great many (if not the majority) of the opponents of their decision aren’t saying to themselves “The California Supreme Court got it right – the California State Constitution guarantees the right of homosexual couples to marry. That law was unconstitutional, so let’s change the Constitution.” They’re thinking “The California State Constitution does NOT contain a right to homosexual ‘marriage’. Those a——s got it wrong. They’re just slapping up reasoning to support their preconceived liberal notions. Now we’ve got to fix this.”
The decision of the California Supreme Court stands as the definitive statement on what the California State Constitution means. Right now. That’s their job, and they did it. But that’s only what the California State Constitution actually means until the people or their representatives change it. This isn’t an end-around. A Constitutional amendment passed by popular vote is as up-front as a legislative change gets.
Preface: I’m gay. I’d like to get married. I live in California. I’ll be voting No on 8.
“In response to M’s contentions, can anyone think of a major civil rights decision that was *first* established by a ballot initiative, as opposed to presidential proclamation, judicial decision, or legislative vote? Majorities of voters don’t generally decide one day, “I’m going to protect a minority population’s rights”– privilege means they don’t have to.”
That’s a pretty narrow construction in response to the proposed idea that the CA Supreme Court created the right.
A less straw-man question would be about whether or not major civil rights decisions was first established or otherwise decided by a consitutional amendment. The answer to that is clearly the 13th, 14th, and 15th amendments. It certainly is not the case that all and/or most of the civil rights have come to us by judicial pronouncement.
I happen to believe that gay marriage SHOULD be a right, but I’m actually kinda skeptical that it really was always hiding in the California Constitution until just recently discovered by the California Court–surprise! Just as it is possible for some people to believe that there ought to be a right to abortion without necessarily buying into Roe’s fairly crapy legal reasoning, I think there OUGHT TO BE a right to gay marriage without believing that such a right actually is easy to find in the California Constitution.
I also think that this is especially unfair: “*first* established by a ballot initiative”.
This isn’t just a ‘ballot initiative’. This is one of the progressively enacted methods for amending the state Constitution. Now you may have problems with the method by which California amends its Constitution–I think the allegedly progressive initiative system is a perfect example of craziness-in-governance, but there you are.
O.K. I was unaware of that, Amp. Given the length of their terms, had any of these justices faced the voters prior to this decision (i.e., have any of them in fact been elected)? Have any of them done so since? And from my experiences in Cook County I can say that there’s a big difference between having been elected to a position and being appointed and getting through a retention vote.
PG, I don’t understand your analogy of comparing the XV and XIX Amendments. They deal with securing the right to vote based on one’s biological status as either black or female. What’s that got to do with this discussion?
RonF, they don’t actually say that. Please go back and read the Constitution.
15th: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
19th: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
This indicates that the Constitution treats race/ color and sex similarly — neither is a permissible ground of distinction for the right to vote, and by extension through caselaw the Supreme Court has found that they are not permissible grounds of distinction for other laws as well.
This is relevant to marriage law, because the California Supreme Court and later the U.S. Supreme Court determined that the U.S. Constitution forbade limiting an individual’s choice of marriage partners on the grounds of the individual’s race relative to that of a desired partner.
I am saying that because sex and race are treated similarly in the federal constitution, the same analysis applies to sex: the U.S. Constitution forbids limiting an individual’s choice of marriage partners on the grounds of the individual’s sex relative to that of a desired partner.
Seems the LDS campaign’s Yes on 8 vinyl yardsigns finally arrived from China, where they were manufactured. Two went up on my street this weekend. So I’ve got a US-made (by me) No on 8 sign out–actually two, there’s one in the window–just to keep up.
RonF said:
RonF, you’ve been to some kind of government or civics class, I’m sure. So I’m also sure that you’ve heard the term elastic language.
Elastic language, for those of you who don’t know, is the legal assumption that the writers of the Constitution (and later state constitutions as well) wrote that document with the understanding that they couldn’t know everything and were not RIGHT on everything, and, therefore, the language is intended to be extended to cover reasonable instances wherein the SPIRIT of the law does not match the EXACT WORDING of the law.
In this case, the SPIRIT of the law is equal rights for all. The EXACT WORDING does not mention gay marriage. But equal rights = equal rights (and if you disagree, then there is a bigger issue at hand and you should take some college classes in logic and rational argument).
Thus, just because the wording does not specify gay marriage, it does not, by dint of not specifying, exclude it. Just like we can assume that even though the Constitution does not SPECIFY when it says “We the people…”, it was actually intended to include Blacks, Chinese, Mexicans, Jews, Kurds, Christian Scientists, Muslims, women, and children, and others… even though at the TIME it was assumed to exclude exactly those “people”. And just like we can assume that, when the Bill of Rights says “freedom of the press,” it does not exclude televisions and radios just because they hadn’t been invented yet.
What you are suggesting is that we should completely destroy 200 years of legal precedence and theory, just so that you can cut some homosexuals out of marriage.
Personally, I hope the judges decide to declare all marriages not recognized by the state as a result of Prop 8.
After all, in their last ruling, they determined that either all marriages be recognized or none at all. Maybe this time they’ll decide to stick with the latter.
Also: When it comes to constitutions, there are revisions and amendments. Most of you seem to be applying the definition of “revision” to “amendment”. If the Constitution of CA is at all being rewritten, then that is a revision, and to try and attempt to change the Constitution in such a way through the amendment process is illegal.