Thinking about California’s Supreme Court Decision and Prop 8

Generally speaking points of law get ignored when there is a good freak out to be had. Not only are they complicated but relatively few people even bother to read them and even fewer really have any idea what it is the court system does. The recent decision in CA about Prop 8 is a perfect example of it.

The freak out in some communities is in full swing. There were calls for protests in more than 100 cities for example. I am not sure what, if anything, these folks think that will accomplish but why let reality stand in the way of a good march? No doubt they fully believe that if they just scream loud enough the legal issues at hand will go away. Then again, the defining factor of so many activists worldview is the belief that as a society we are supposed to make decisions based on who screams loud enough. Emotion defines reality for these people.

Case in point? This blog post by Jerry Kolber…

God only knows what those California judges were picturing in their minds as they shuddered in disgust and handed down their decision.  Pigs in a blanket? Oil rigs drilling mercilessly into soft mounds of earth? Two pink coin purses locked together in a dark handbag? Double meat sausage platters?    Regardless of what lustful imagery they (and all the folks who voted for Prop used to enable their decision, there’s only three explanations for creating  and supporting laws that deny others their happiness, and none of them have anything to do with whether  your taste includes oysters, snails or both. – Prop 8: Sexual Positions for Gay Married Couples

Let’s skip for now the deeply amusing irony of someone getting all worked up about intolerance while declaring that anyone who doesn’t agree with him is a brainwashed, screaming homophobe. Instead look at that post because it is a perfect example of someone absolutely failing to grasp the issue before the court, or what the ruling presented actually means.

The CA court really had only one decision to make – whether Prop 8 was an “Amendment” or a “Revision” if the CA constitution.

“The opinion further emphasizes that the principal legal issue in this case is entirely distinct from the issue that was presented in the court’s decision last year in In re Marriage Cases (2008) 43 Cal.4th 757.  There, the court was called upon to determine “the validity (or invalidity) of a statutory provision limiting marriage to a union between a man and a woman under state constitutional provisions that do not expressly permit or prescribe such a limitation.”  In the present case, by contrast, the principal issue “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. – NR29-09

In short, the California Constitution grants the citizenry there huge latitude to amend itself – one of the reasons CA is a Petri dish for stupid activism based legislation and facing a total financial meltdown.So the core question was whether excepting the term “marriage” to apply only to heterosexual couples was so large an issue that to adopt it would have counted as a Revision”.

The majority opinion then analyzes the quantitative and qualitative effect of Proposition 8 on the preexisting provisions  of the state Constitution.  Petitioners concede that the measure does not amount to a quantitative revision, but maintain that it constitutes a qualitative revision.  Addressing this contention, the opinion explains that the distinction between an amendment and a revision does not depend upon the relative importance of the measure in question, pointing out that “(1) the right of women to vote in California, (2) the initiative, referendum, and recall powers, (3) the reinstatement of the death penalty, (4) an explicit right of privacy, (5) a substantial modification of the statewide real property tax system, and (6) legislative term limits — to list only a very few examples — all became part of the California Constitution by constitutional amendment, not by constitutional revision. – NR29-09

The exception to this would have been if Prop 8 was going to result in the removal of the equal protection of law from homosexuals. In other words, a simple constitutional amendment in CA cannot remove the rights granted by that constitution. For that you would need to revise the document.

The thing is despite the screaming Prop 8 in no real way removes the equal protection in CA of homosexual couples.

Analyzing the scope of Proposition 8, the majority opinion explains that, contrary to petitioners’ assertions, the initiative measure does not “entirely repeal” or “abrogate” the aspect of a same-sex couple’s state constitutional right of privacy and due process discussed in the majority opinion in the Marriage Cases – namely, the constitutional right to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” — nor does it “fundamentally alter” the substance of state constitutional equal protection principles recognized in that opinion.   

Instead, it carves out a limited exception to these constitutional rights by reserving the official designation of the term “marriage” for the union of opposite-sex couples, but leaves undisturbed all of the other aspects of a same-sex couple’s constitutional right to establish an officially recognized and protected family relationship and to the equal protection of the laws.- NR29-09 (emphasis added)

Essentially this re-enforces the reality of California state law that a homosexual couples domestic partnership is legally equivalent to a heterosexual couples marriage – the difference being entirely semantic. Some compromise and rationality on this would be a good idea since acting like militant assholes is much of what caused the political swing in favor of Prop 8 to start with.

More importantly, as a minority the last thing you should want is a supreme court system that is beholden to mob protests in the streets, rather than the law. Think about it. The folks who dislike you outnumber you, and they can breed.

What is needed is a cool, rational and intelligent political campaign. The fundamental rights of homosexual couples in CA are safe and secure (as they should be, of course).

Links of interest…

• GayPatriot » CA Supreme Court Upholds Prop 8
• GayPatriot » CA Supreme Court’s Prop 8 Decision & the Way Forward on Gay Marriage
• <
  a title="Anger, Leadership and Change « Law Dork, 2.0" href="http://lawdork.wordpress.com/2009/05/26/anger-leadership-and-change/">Anger, Leadership and Change « Law Dork, 2.0

note: NR29-09 is a summary published by the CA Court. The full ruling is here and a downloadable PDF is here.

note 2: the image for this post is Pamela Anderson and Lindsay Lohan kissing. Still totally legal in California.