There really isn’t all that much new to be said about the decision.
We all knew the likely outcome after oral arguments. We all knew the absurdity of such a monumental question being decided on downright silly parlor debates about “amendments” versus “revisions.”
We all knew what wasn’t at stake: The all-important finding that sexual orientation is a suspect class entitled to heightened scrutiny still stands in California (and now in Iowa as well). And the “separate but equal” domestic partnership option will remain available to future same-sex couples in California.
We all knew that the activists would come charging out of the gate with their plans to get a repeal initiative on the ballot.
So are there any bangs to be crafted out of this field of whimpers? Perhaps:
–The very-oft-repeated refrain from the majority that “only” the word marriage was at stake, and that the “separate but equal” domestic partnership regime endures, seems to me obviously intended, with disdain and even hostility, for the bigots. One can almost see, emerging from the margins in faint font, “Okay, you win — for all the good it will do you…”
(Someone had a deliciously snarky suggestion yesterday: The California legislature could, consistent with Prop 8 and the decision, limit the words “marriage” and “married” to heterosexual couples but still enact a new status called “wedding” and “wedded” to gays. I’m sure Maggie Gallagher would have a conniption over that.)
–As time passes, it will become increasingly clear that the most tragicomic character in this farce was Jerry Brown, already a laughable and pitiful politics addict long before Prop 8. The court was merciless in its impatient dismissal of Brown’s asinine “the constitution is unconstitutional” argument. The lopsided vote notwithstanding, one can only wonder how the case might have played out had Brown not tried to be — well, a politician — and simply toed the “revision not amendment” line. Idiot.
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Most of the voluminous decision addresses the otherwise uncaptivating “amendment versus revision” question and is nowhere near quoteworthy. Two exceptions deserve highlighting, however:
First:
Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution. [Emphasis added; internal citations omitted.]
This merely restates the California constitution itself:
All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require. [Emphasis added.]
As I noted previously, both passages confuse, horrifically, the words right and power.
It is true, as an axiom, that all political power resides in the people. It is true, as an axiom, that the mob always has the ability to behave like a mob. But these observations are mere matters of unambiguous fact. They are on a par with saying that a person with a gun has the ability to kill. That is a metaphysical statement, not an ethical one — and certainly not a political one.
But such statements, such factual observations, are totally orthogonal to the question of the legitimacy of what “the people” (nee “the mob”) do.
Might does not make right. Neither does majority make right.
Second:
As we have observed in past cases, “The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900’s.” The progressive movement, both in California and in other states, grew out of a widespread belief that “moneyed special interest groups controlled government, and that the people had no ability to break this control.” … The initiative was viewed as one means of restoring the people’s rightful control over their government, by providing a method that would permit the people to propose and adopt statutory provisions and constitutional amendments. [Emphasis added.]
In their quest to abridge property rights and freedom of contract, the progressives — and their modern-day liberal heirs — inadvertently enabled the abridging of marriage rights and equal protection by a new category of nefarious “moneyed special interest groups” (i.e., the Mormon and Catholic churches). Go figure.
I, qua libertarian, can’t help but feel just a little bit smug over that thought (though I would gladly have traded that emotion for a different outcome here).
The case is Strauss v. Horton, No. S168047 (Supr. Ct. Cal., May 26, 2009) (PDF – 185 pages)
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Two of the nation’s top litigators who opposed each other in the Bush v. Gore election challenge in 2000 have joined forces to seek federal court intervention in California’s gay marriage controversy.
Theodore B. Olson and David Boies have filed a U.S. District Court lawsuit on behalf of two gay men and two gay women, arguing that the California constitutional amendment eliminating the right of gay couples to marry violates the U.S. constitutional guarantee of equal protection and due process.
Olson said today that he hopes the case will wind up before the U.S. Supreme Court.
The lawsuit seeks a preliminary injunction against California’s Proposition 8 until the case is resolved.
The only way this becomes a federal case is by invoking Romer v. Evans — which of course is entirely on point and which, under any impartial reading, clearly requires that Prop 8 be invalidated.
But are (“activist”) federal judges ready to acknowledge that Romer demands that all bigot amendments (and not just California’s) be struck down? The smart money (e.g., Lambda Legal) says no. But Olson and Boies are no slouches either — or are they just hired guns, as Kenneth Starr was a hired gun for the bigots in this lawsuit?
Stay tuned…
Previously:
–On the [Original] California Gay Marriage Decision
–On the Petition to Overturn Proposition 8
–On the Brown Proposition 8 Brief
–Thoughts Going Into the California Oral Arguments
2 responses so far ↓
Link Tony // May 27, 2009 at 11:17 am
The federal case will be interesting to learn whether people understand that "too much, too soon" and "know thy enemy" aren't the same. As you say the federal reasoning is clear, but the federal courts as currntly populated may be too full of cowards (and/or hypocrites).
Link jaysays // Jun 1, 2009 at 2:09 pm
I recently wrote about the federal challenges and attempted to ignore the fact that the Fed. Courts are likely going to find a way out of being labeled "activist judges" in spite of the fact that Romer is, as you say, on point. Putting the ideology of the court aside, I still think it is better to fight that fight than not. We cannot be afraid of what the Fed Courts may do considering it's all already being done to us. If they rule outside of the law, let history be their judges as it surely will.