While the California Supreme Court recognizes the constitutionality of Proposition 8 it simultaneously violates the Constitution by stating that 18,000 same-sex "marriages" will be recognized in California. This is a bizarre maneuver that demonstrates that the court has no interest in altering its judicial activism posture. It saw clearly that it could not overturn Proposition 8 but refused to accept what the amendment actually says.
Proposition 8 clearly and unequivocally states:
"Only marriage between a man and a woman is valid or recognized in California."
So how on earth can the Supreme Court rule that 18,000 same-sex couples have marriages that are valid and recognized in California? This is an interpretation direct from the twilight zone of Orwellian reasoning.
On one side of its mouth the court states that Proposition 8 is constitutional and on other side states "but we, by judicial fiat, will make 18,000 exceptions to the Constitution."
Now here is a case that needs to be taken to the US Supreme Court. This contradictory ruling needs to be overturned. The California SC cannot be allowed to continue creating law and exceptions to law.
Let's put this in perspective by a couple of examples. If the law states that you must be 18 years old to drink alcohol but then a law is passed that says everyone must be 21 years old to drink, can that possibly be interpreted to mean that an exception will be made for everyone not yet 21 without that being stipulated in the new law? If a state law says you must be at least 16 years old to marry but then a law is passed stating you must be at least 18 years old, can that be interpreted that everyone still 16 or 17 is exempted? Similar examples by the hundreds could be given.
If Proposition 8 is constitutional then it must be applied to everyone. For some reason 18,000 same-sex couples, unqualified for marriage, are in a privileged class that is above the law.
Thank you. This needed to be addressed, and your example is a good one. Here's another one:
ReplyDeleteAmendment 13:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Should the court have interpreted this to mean that slaveowners can keep their existing slaves -- just not aquire any new ones?
Ridiculous.
Marty, I like that you brought up slavery. A while back in one of our conversations you told us slavery is right if the majority wants it.
ReplyDeleteIt took a constitutional amendment to repeal slavery, another amendment could reenact it just as well.
ReplyDeleteI didn't say it was "right", I said it was A right -- of The People.
Apparently, the Court reasoned that the marriage amendment was just about the word, marriage, and was otherwise superificial.
ReplyDeleteThat, it said, saved the amendment from being a revision. What a crock.
But when it came to the interim SSMs, suddenly the amendment was this huge looming threat of chaos.
On one hand the Court intervened in the amendment campaign and refused to stay its pro-SSM order until the people had voted. But now the Court claims to be impotent to order the legislature to transition these interim SSMs to domestic partnership status.
The Court has made a political power play in the name of identity politics. It was wrong in its pro-SSM reasoning and wrong here as well.
But it once again threw crumbs to the People for whom the Court acts as if it is the master rather than the servant.
In other words, the Court chose to create an "interim" mess and has refused to clean it up. It dumped the mess on the doorstep of the People. It blames the People.
ReplyDeleteMarty, slavery is an evil that should not be allowed -- no matter how many of the people want it.
ReplyDeleteAmerican slavery involved denial of personhood. It violated the rights of the individual. I do believe that someone should be free, if they so choose, to consent to their own enslavement (to pay off a debt, for example). This would involve some sort of contract so that the terms could be spelled out. That is different from snatching someone and putting them in chains.
ReplyDeletePeople (usually males) who conceive children that are born and not given up for adoption are regularly compelled to labor for someone else - their children. We call that child support.
I do not believe there is a right to own another adult human being, especially against their own will. I do not believe human being are proptery.
I would hope our Constitution would strive for the protection of actual rights as much as possible, not what I call imaginary rights. As such, I would not want the Constitution amended to create a "right" to enslave others in the sense that once existed in the USA (and most of the world). However, it would be entirely possible (though extreme unlikely) that the proper process of amending the Constituion could be employed to re-institute slavery. I would fight against it, as would probably every person engaged in discussion here.
The various pro-SSM court opinions have as their predecessor the Dred Scott decision which used "substantive due process" to see in the constitution what was not there.
ReplyDeleteExcellent post. I hadn't thought of it just this way, there are some good soundbytes in this one that in a nutshell put things into context.
ReplyDeleteThe only way we could totally prohibit even the possibility of an amendment allowing slavery would be by an amendment to the Constitution specifically forbidding the adoption of any such amendment.
ReplyDeleteBut that too, could conceivably be removed through another amendment.
Sorry, Arturo, but that's the best we can do. You apparently would like it to be up to judges to just throw out any constitutional change that they felt was wrong, which would effectively make them the dictators.
There has been no even half-serious attempt by the people to reinstitute slavery. It's also interesting that there has never been any serious movement by the people to overturn Loving, or (from what I know) to overturn California's Perez decision (or anything similar in other states) before Loving was decided.
Is it legally possible? Yes. Likely to happen? Not by a long shot.
The people must retain at least the method to say when equality has been stretched to an absurd extreme. And any good principle can be stretched to an absurd extreme.
It wasn't "the amendment process" that ended slavery. It was a war, with half a million dead, and martial law after.
ReplyDeletehttp://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution
ReplyDelete"Lincoln and others were concerned that the Emancipation Proclamation would be seen as a temporary war measure, and so, besides freeing slaves in those states where slavery was still legal, they supported the Amendment as a means to guarantee the permanent abolition of slavery."
Playful Walrus,
ReplyDelete"American slavery involved denial of personhood. It violated the rights of the individual.
...
I do not believe there is a right to own another adult human being, especially against their own will."
You argue, and of course I am powerfully inclined to agree, that slavery violated core rights possessed by those individuals who were subjected to the vile practice. But this begs an important question: where did these rights come from? Were they unalienable rights endowed by their Creator, as the Declaration of Independence suggests? Or are those rights granted by the Constitution? To put it another way, did the passage of the Thirteenth Amendment create a right to freedom from slavery that previously did not exist, or did that amendment merely recognize an existing right possessed by slaves (indeed by everyone) by virtue of their status as human beings?
The reason I ask this is, to argue that a person possesses rights not (yet) granted by or recognized to exist in the Constitution, is to essentially make a moral rather than legal argument regarding a person's dignity and worth. Slavery may have been legal before, but we can all agree that it was certainly never moral. And moral arguments are, of course, perfectly fine; it is the burden of every thinking person to struggle with the difference between right and wrong, and to advocate the former and disavow the latter, even when these run counter to existing law. But when it comes to rights that exist in a moral rather than legal sense, and rights that you hope the Constitution would uphold and protect, who gets to decide which rights are "actual", and which "imaginary"? To whom do we extend our moral concern, and how far do we extend that concern?
Which brings me to your argument on the non-existence of equal protection rights for same-sex couples. I commend you for at least taking the time to address the issue, when hardly any other opponent of same-sex marriage has bothered. But it seems to me that, even if this argument were correct from a strictly legal perspective (which I dispute, see my latest comments in that thread), it fails utterly as a moral argument. Allow me to quote your words back at you:
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ReplyDelete"It packs the most emotional punch, given the desire of the average American to support “equality”. But law is about logic and facts, not emotion.
ReplyDelete...
I understand that some individuals do not want to marry someone of the opposite sex, and want to get a marriage licensing with someone of the same sex. However, that someone wants something other than what is available does not mean what is offered denies equal protection and must be changed.
...
While appealing to "fairness" and insisting that it is what they want and it would make them happy ... the "equal protection" argument does not stand up to scrutiny from a Constitutional perspective."
It's one thing to argue, as many have including yourself, that current marriage policy is not actually discriminatory to gay and lesbian individuals. But my interpretation of your argument, and correct me if I'm wrong, is that discrimination does exist for same-sex couples (as opposed to individuals), but that's ok, because it's perfectly legal.. That this discrimination might pack "emotional punch" in offending one's sense of equality and fairness, but from the standpoint of "logic and facts", it is constitutionally permissible. Which can be an admirable perspective for a judge to adopt, but to a citizen such as yourself I feel compelled to state the obvious response: even if it were legal, it would still be unjust!
You appear to have chosen to dismiss an inequality that you can perceive in society and law, an injustice demanded by a minority to be addressed, favoring instead an appeal to cold logic and and a literal reading of the law. The inescapable conclusion, and please understand that I mean on offense when I say this, is that the dignity and equality of gays and lesbians, our desire to have our love and commitment recognized in an equal manner to our heterosexual peers, are simply outside your sphere of moral concern. The question then, is why? How do you justify such moral complacency in a country that was founded on the principle that all are created equal, and endowed with unalienable rights life, liberty, and the pursuit of happiness? Why does your moral concern extend to slaves prior to the Thirteenth Amendment*, but not to gays and lesbians who wish only to marry, and desire not the slightest bit of harm upon you or your family? Why is it morally justifiable for opposite-sex couples to have a constitutionally protected, fundamental right to marry, but for same-sex couples to not be allowed to enjoy the same? Because it seems to me that a claim of injustice within our society demands from each of us, if not necessarily restitution, at the very least a meaningful response that addresses the real concerns of the victims of that injustice, not just a mere recitation of the law. Anything less strikes me as a moral failing of the highest order.
*I feel I should point out that I don't mean to belittle in any way the suffering that many experienced due to slavery. Historically, gays and lesbians have had a difficult time, but the suffering of slaves was incomparably worse.