Same-sex marriage (SSM) and
"Dan White: Hero. Killing a queer." Sign carried in front of the California Supreme Court building on 2009-MAR-05. Cited in an Equality California's mailing as an example of "...how much work we have to do in some places to effectively education Californians about our humanity and right to live as well as the freedom to marry."
The state senate approved a resolution that described Prop 8 as an major revision of the constitution that is unconstitutional because it was not pre-approved by the Legislature. The vote was 18 to 14 in favor of the resolution. The LA Times reported:
"Sen. Mark Leno (D-San Francisco) said the initiative is a fundamental revision to the document, not an amendment, and therefore required deliberation by the Legislature and a two-thirds vote of both houses to put it on the ballot."
" 'Do we have a constitutional democracy in California, or do we have mob rule?' Leno asked his colleagues..." 1
The House passed HR 5 by a vote of 44 to 27; it is similar to SR 7.
|Assemblyman Van Tran, (R-Garden Grove) said: "As a non-binding resolution with no force of law, HR5 does nothing except further politicize this process a few days before the court hearing," said|
|Assemblyman Joel Anderson, (R-Alpine), said: "Stealing the term marriage from people (is) not a right. That's going over the brink." 2|
Anderson's statement is interesting, because marriage itself was stolen from same-sex couples by Prop. 8, not just the term "marriage."
Court structure: The court currently consists of six Republicans and one moderate
Attorney General: The normal practice for attorneys general is to support whatever constitutional amendments and other measures are passed by public vote. However, Attorney General Jerry Brown decided to break with tradition by opposing the implementation of Prop. 8. He argues that it violates inalienable or natural rights, and that Prop. 8 basically creates an internal conflict within the California Constitution. Some sections guarantee equal rights to marry, and Prop. 8 takes them away.
Aurelio Rojas of the McClatchy Newspapers states:
"Brown is contending that the [Prop. 8] measure violates the California Constitution's inalienable rights to liberty and privacy that cannot be eliminated without compelling reasons. He maintains those rights include the right to marry, which same-sex couples had for five months last year [in mid-2008]. ... Brown ... is citing the California Supreme Court's decision to strike down Proposition 22 -- the same court decision that Proposition 8 overturned.
Pro-equality organizations and cities: Lawyers of civil rights groups, homosexual advocacy
groups, the City of San Francisco and other local governments are arguing from a
different perspective. They assert the Prop 8 is a major revision to the
state constitution not a minor amendment. Major revisions must be first
approved by the state Legislature by a two-thirds vote before being placed on
the ballot. This was not done in the case of Prop. 8; which was a citizen
initiative that picked up a sufficient number of supporting signatures to be placed on the ballot.
Religious and social conservatives: Some groups have announced
that they will target for impeachment any judge who votes against the
constitutionality of Prop. 8.
Past statement by the court: In 2009-MAY, when the California Supreme Court overturned Prop. 22, it stated:
"... we conclude that, under this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process." 3
The intent of Prop. 8 was to eliminate the right to marry for one group in California -- same-sex couples. At first glance, it might seem that if the court were to support the implementation of Prop. 8, it would be overturning its own ruling. However, Prop. 8 was not a "statutory initiative" like the earlier Prop. 22. It was an alteration to the Constitution.
Legal experts: They differ about the court's likely decision:
Gerald Uelmen, a law professor at Santa Clara University suggests that the court will reject both arguments, and rule in favor of the constitutionality of Prop. 8.
Erwin Chemerinsky, dean of the University of California Irvine School of Law, predicts that the court will decide whether Prop. 8 is a revision or amendment, and act accordingly. 3
Kenneth Starr, professor at the Pepperdine School of Law believes that there is inadequate precedent for the court to Prop 8 either as a result of the revision/amendment argument, or based on a violation of separation of powers. 4
We normally try to objectively report all sides to each issue, and keep our own opinions to ourselves. But this is a very important court decision that could forcibly divorce almost 40,000 Californian adults against their will and make marriage a special privilege that is once more restricted to opposite-sex couples.
One of the main functions of a state constitution is to protect the rights of minorities from the will -- often called the tyranny -- of the majority. Mark Rosenbaum, legal director of the ACLU of Southern California, said:
"It is one of the most important cases in the history of the California Supreme Court. The core tenet of our constitutional democracy is that fundamental rights of historically disadvantaged minorities are not dependent on the whim of the majority." 5
Today, there is widespread animosity by some of the public against various minorities: homosexuals, bisexuals, transsexuals, transgender persons, Muslims, anyone who looks Middle Eastern, Agnostics, Atheists, Mormons, Roman Catholics, fundamentalist and other evangelical Christians, etc. In the state and throughout the nation, the percentage of persons who identify themselves as Christian is decreasing even as the percentage of Atheists, Agnostics, and NOTAs (None of the Above -- people not affiliated with any religion --) is increasing. Today's majorities could easily become tomorrow's minorities.
If Prop 8 is upheld by the court, then any group could target any minority that is even temporarily in disfavor. Any of the minority's freedoms could be restricted. 50% plus one vote would be the only requirement for almost any proposition to alter the state constitution.
Another factor is the instability that acceptance of Prop 8 might bring to the state. It passed by a mere 2% of the vote in 2008-NOV. Because of the makeup of the voters in that election, there is every likelihood that if the vote were repeated today or in 2010, a proposition similar to Prop 8 would be rejected. One could imagine propositions restricting or restoring fundamental freedoms being voted upon every two years with unpredictable results.
Pepperdine law school Dean Kenneth Starr, commented in his brief
to the court on the narrow win of Proposition 8:
"The people ultimately decided. Under our system of constitutional government, that is the end of the matter." 5
But he is clearly wrong. According to the Los Angeles Times:
"If justices uphold the proposition, gay marriage backers plan to put their own measure before voters perhaps as soon as 2010 to re-amend the state Constitution to allow the marriages. If the justices toss out Proposition 8, some gay-marriage opponents have talked of putting something on the ballot themselves, either to again ban gay marriage or to oust Supreme Court justices or both." 6
It is within the long term interest of every citizen of California that Prop. 8 be declared unconstitutional. If Prop. 8 is not a major revision, I don't know what would be.
Mara Dolan of the Los Angeles Times has suggested that the court may have already decided the case, on the basis of written submissions and amici curiae.
"... California Supreme Court may reveal Thursday [2009-MAR-05] whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex marriages will remain valid, during a high-stakes televised session that has sparked plans for demonstrations throughout the state.""One conservative constitutional scholar has said that the court could both affirm its historic May 15 ruling giving gays equality and uphold Proposition 8 by requiring the state to use a term other than 'marriage' and apply it to all couples, gay and straight."
"By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. The ruling is due in 90 days. ..."
"Most legal analysts expect that the court will garner enough votes to uphold existing marriages but not enough to overturn Proposition 8. The dissenters in May's 4-3 marriage ruling said the decision should be left to the voters. ..."
" 'The alternatives are for the court to accept Proposition 8 and authorize the people to rewrite the Constitution in a way that undermines a basic principle of equality,' said Pepperdine law professor Douglas Kmiec. If the court overturns Proposition 8, 'that is the short course toward impeachment'." 5
The California Supreme Court heared oral arguments on the validity of Prop 8. Web sites eqca.org and http://www.calchannel.com broadcast the session. It was also shown on the California Channel. The National Center for Lesbian Rights (NCLR) had blogging coverage at: http://overturn8.nclrights.org/
During the oral arguments, only Justice Carlos R. Moreno and Kathryn Mickle Wergegar suggested that the court could invalidate Prop. 8 as an illegal constitutional revision. Chief Justice Ronald M. George commented that constitutional amendments had stripped away individual rights in the past. Justice Joyce L. Kennard indicated that those working for equal rights for persons of all sexual orientations could create a new proposition for election day in 2010 that would repeal Prop. 8.
On the other hand, most -- perhaps all -- of the Justices appeared to support allowing the almost 40,000 gays lesbians and bisexuals that married same-sex partners in California be allowed to continue to be married.
Raymond C. Marshall of the Asian Pacific American Legal Center argued that Prop. 8 was an unconstitutional deprivation of the right to marry that targeted same-sex couples. He said that that nothing is more fundamental than the Constitution's equal protection doctrine.
Former Whitewater special prosecutor Kenneth Starr argued in favor of Prop. 8. He said that the people's power to change their Constitution overrules the court's ability to invalidate Prop. 8. He said: "One of the inalienable rights articulated in the Constitution is control over the Constitution."
Christopher E. Krueger represented the office of Attorney General Jerry Brown's and opposed Prop. 8. He argued that neither an amendment nor a revision to the Constitution can deprive people of a fundamental right, including the right to marry.
The court ruling is expected within the next 90 days; i.e. by early 2009-JUN. 7
The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
Copyright © 2009 by Ontario Consultants on Religious
Original posting: 2009-MAR-04
Latest update: 2009-MAR-11
Author: B.A. Robinson
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