[The rest is below the fold if you care to read it.]
But even before the court acts, gay rights activists -- braced for defeat -- are preparing to use the occasion to jump-start the next political campaign for marriage [neutering], which could come in 2010. They are planning news conferences, vigils and marches from South Los Angeles to the Oregon border.Get ready for hysterics, whining, and endless badgering. Very little logic will be used. It will mostly be appeals to emotion and an insistence that you comply with the wishes of a friend, coworker, or family member, or otherwise you will be considered some sort of hateful bigot – despite the fact that they will not be at all concerned about your convictions.
Opponents of gay marriage said they were anticipating a court ruling in their favor.Notice how that is framed. We are not people who esteem marriage, prefer tradition, prefer self-government. We are "opponents of gay marriage". I am no more an opponent of "gay marriage" than I am an opponent of dry water.
During the six months that the court has been reviewing the case, the national picture on [neutered] marriage has shifted substantially.That should make no difference in the ruling.
"Whatever the court does . . . we have roughly half the state that doesn't yet believe that gay people are equal," said Jenny Pizer, Marriage Project director for Lambda Legal.This is a lie. I believe gay people are equal, and so do most people who understand that marriage is something that unites the sexes. Don't let these professional manipulators try to saddle you with a guilt that does not belong to you. These are people who don't believe your vote should matter.
You can check out the Orange County Register article by Martin Wisckol here.
Apparently having exhausted their options in California courts, the marriage neutering advocates will finally do what they should have done all along, and try to take it to the ballot.
I agree that the Court should most likely uphold Prop 8---unless they're letting things other than the law influence them, like the threat of mass demonstrations. Which is possible.
ReplyDeleteThe problem with declaring Prop 8 a "revision" because it limits a "fundamental right" is glaring. If the right to marry is fundamental, how can any state limit the qualifications on who can marry at all....by setting age limits or consanguinity limits.
California allows first cousin marriages. Many other states do not. California does not allow parsib/sibchild marriages. Doesn't this also violate the "fundamental right to marry"? Okay, if you find that argument too much, would the "fundamental right to marry" be saying that California would have no right, if it chose to do so, to not allow marriages between first cousins but allow them between second cousins? This matter has always been left to the states, and it has never been claimed that even first cousins have a "fundamental" right to marry even though many states do allow it.
California allows anyone over 18 to get married without parental consent, but requires a parent to be present if either bride or groom is under 18. Doesn't this violate the "fundamental right to marry?" Would California have no right to limit marriage to those over 18, period? Does the State or voters have no right to set any of these limits? If marriage is just a "fundamental right", the answer has to be no. If this is not addressed and the Court overturns Prop 8, they are saying that the right is "fundamental" only for questions of the gender of the participants and nothing else. They are also really saying that the right is "fundamental" not because of established pre-existing law but because of something they just decided. Their only basis for this decision would be their recent decision which Prop 8 was directly responding to.
R.K.,
ReplyDeleteActually, there's ample SCOTUS case law upholding marriage as a fundamental right. Loving v. Virginia is of course the most famous and important example, but this right was upheld in several other decisions including Zablocki v. Redhail and Turner v. Safley. As far as the California Supreme Court goes, this right was also recognized long before in Perez v. Sharp, and of course more recently in In Re Marriages Cases. That last one is actually quite an interesting read, and addresses some of the concerns you mention in your comment; at the very least it establishes the fundamental right to marriage as more than "something they just decided." I strongly recommend it to anyone interested in the same-sex marriage debate.
The reason that government can enforce restrictions on marriage with regard to age and consanguinity is that even fundamental rights are not absolute. The classic examples are for free speech: you can't yell "Fire!" in a crowded theater, or commit libel or slander, the First Amendment not withstanding. Under the strict scrutiny standard of judicial review, government may restrict even fundamental rights under certain conditions: that it be justified by a compelling interest, that it be narrowly tailored to achieve that goal, etc. In the case of marriage, I expect that these interests include preventing genetic inbreeding, and protecting the rights of minors.
More to the point, you may be surprised that I'd actually be quite uncomfortable myself if the Court overturned Prop 8. As unhappy as I was with Prop 8's passage, I'm more than a little disturbed by the idea that a court can deem a constitutional amendment itself constitutional, and I oppose this on the grounds of both democratic liberty and political strategy (I simply shudder at the charges of "judicial activism!" that will inevitably result). That being said, I actually find that the revision/fundamental right argument to be legally compelling, and I've yet to hear a convincing argument against it. Like most, I don't really expect the court to overturn Prop 8, but I'm curious to see what justification the court will end up using.
Carlo: Actually, there's ample SCOTUS case law upholding marriage as a fundamental right.
ReplyDeleteUpholding marriage quo marriage as a fundamental right, to be precise. Redefining words to transform something into a fundamental right is no less than amending the constitution itself. One does not create a right to armed robbery by calling it, say, an exercise in free speech. Loving, Zablocki, etc., all link marriage with procreation and that is the basis of marriage as a fundamental right. Neutering marriage is not a "fundamental right."
But let's not forget that the anti-Prop 8 campaign also argued in front of the CA Supreme Court and elsewhere that eliminating the state recognition of marriage is also an acceptable outcome, which amounts to eliminating a "fundamental right," by these precedents.
I oppose this on the grounds of both democratic liberty and political strategy (I simply shudder at the charges of "judicial activism!" that will inevitably result).Would impinging on "democratic liberty" constitute judicial activism, yes or no?
I actually find that the revision/fundamental right argument to be legally compelling...Since the California Constitution does not explicitly define what constitutes a "revision," no argument based on that can be "legally compelling."
Several times the California Constitution has been completely rewritten when the sheer volume of amendments has made it unwieldy. These rewrites are intended just to simplify while maintaining the meaning of the original, document with its amendments at the time. These are clearly to what the (re)writers of the most recent version of the Constitution referred when they used the term "revision." They clearly did not intend it to mean the court vetoing amendments it doesn't like. Even the Attorney General, who in this case is arguing for overturning Prop 8, finds the "amendment vs. revision" argument to be baseless.
op-ed,
ReplyDelete"Upholding marriage quo marriage as a fundamental right, to be precise. Redefining words to transform something into a fundamental right is no less than amending the constitution itself. One does not create a right to armed robbery by calling it, say, an exercise in free speech. Loving, Zablocki, etc., all link marriage with procreation and that is the basis of marriage as a fundamental right. Neutering marriage is not a "fundamental right.""
Perhaps you didn't get that I was responding to R.K.'s comment, specifically his argument that no fundamental right even to traditional marriage exists. If you also wish to insist on the existence of that right, take it up with him, not me.
Although on a more abstract level, I don't agree that having a more expansive (or restrictive) interpretation of a fundamental right necessarily amounts to redefining the word that encapsulates that right, or that it amounts to a constitutional amendment. Constitutions and the meaning of words are both open to changing interpretations, after all; not all of these new interpretations are necessarily amendments and redefinitions, respectively. In any case, while your example on armed robber/free speech is absolutely correct, I believe that a court has a stronger obligation to protect fundamental rights of citizens than to protect the definitions of words. If SCOTUS had found it necessary to change the meaning of the word "marriage" in order to come to its decision in Loving v. Virginia, I would have been ok with this.
"But let's not forget that the anti-Prop 8 campaign also argued in front of the CA Supreme Court and elsewhere that eliminating the state recognition of marriage is also an acceptable outcome, which amounts to eliminating a "fundamental right," by these precedents."
I imagine they must have felt that due process requires government to respect rights in substance rather than form. Eliminating all state recognition of marriage would have then respected the fundamental right to marriage while simultaneously dealing with the equal protection violation. As an intellectual matter, it would have been interesting to see the Court's response to such an argument, but they explicitly set this issue aside in In Re Marriage Cases, if I recall correctly.
"Would impinging on "democratic liberty" constitute judicial activism, yes or no?"
Well naturally that would depend on the judicial reasoning used to justify the impingement. I don't throw around accusations of judicial activism simply because I don't like the outcome of a court's decision.
"Since the California Constitution does not explicitly define what constitutes a "revision," no argument based on that can be "legally compelling.""
Fair enough. Perhaps my phrasing "legally compelling" was too strong, I meant only that I found the argument compelling because of my own understanding of the meaning of "revision." I readily acknowledge that there can be reasonable disagreement on that matter, and I even admit that the legal definition of "revision" isn't something I had seriously looked into before. Clearly, the majority of the CA Supreme Court disagreed with my understanding. Which is fine, I defer to their judgment.
Carlo: Perhaps you didn't get that I was responding to R.K.'s comment, specifically his argument that no fundamental right even to traditional marriage exists.
ReplyDeleteIrrelevant. Your conversation with R.K. is for you and he to work out. My point is that even when the courts are interpreted as finding a "fundamental right" to marry, the context of that right clearly does not extend to neutering marriage. If you dispute that fact, you fail to do so in your response to me.
I believe that a court has a stronger obligation to protect fundamental rights of citizens than to protect the definitions of words.
Wrong. It is the role of the court to interpret the law, not redefine it. It is the role of government to secure our unalienable rights, and governments do that best when government powers are separated. Expansive powers vested in any one branch of government have proven in every case to corrupt and diminish individual rights, not preserve or defend them.
I don't throw around accusations of judicial activism simply because I don't like the outcome of a court's decision.
Nonresponsive. I did not ask whether disliked outcomes constituted judicial activism. I asked whether impinging on "democratic liberty," particularly in this case, constituted judicial activism.
I meant only that I found the argument compelling because of my own understanding of the meaning of "revision."
What understanding is that and why do you think the framers of California's constitution would have understood the term similarly?
"Irrelevant. Your conversation with R.K. is for you and he to work out. My point is that even when the courts are interpreted as finding a "fundamental right" to marry, the context of that right clearly does not extend to neutering marriage. If you dispute that fact, you fail to do so in your response to me."
ReplyDeleteAnd my point was that your response to my comment was similarly irrelevant to its intended purpose, which was to respond to R.K. Just because you wish to pick a fight with me while I'm speaking with someone else on a different topic doesn't actually obligate me to respond to you. But since you insist, then yes, I dispute it to an extent. I completely agree that Loving, Zablocki, Turner and Redhail only recognized a fundamental right to man-woman marriage, but In Re Marriage Cases obviously recognized a similar right for same-sex couples. I haven't read the Massachusetts and Iowa decisions on the same issue, but I expect that they had probably argued along similar lines.
"Wrong. It is the role of the court to interpret the law, not redefine it. It is the role of government to secure our unalienable rights, and governments do that best when government powers are separated. Expansive powers vested in any one branch of government have proven in every case to corrupt and diminish individual rights, not preserve or defend them."
I agree that the role of courts is to interpret the law, but I believe this can entail taking an expansive view of its full meaning, and not merely adhering to its strict letter, or worse, playing semantic word games. I also agree that it is the role of government to secure inalienable rights, but further believe that the judiciary, as a branch of government, has a share in that role.
"Nonresponsive. I did not ask whether disliked outcomes constituted judicial activism. I asked whether impinging on "democratic liberty," particularly in this case, constituted judicial activism."
And my response was crystal clear. Let me repeat: whether or not the outcome of a court's decision constitutes judicial activism, in this or any other case, would depend on the reasoning used to arrive at that outcome. In this case the court decided the other way, so that reasoning is unknowable, in fact it doesn't exist.
"What understanding is that and why do you think the framers of California's constitution would have understood the term similarly?"
Simply that amendments constituted small or minor changes, and revisions constituted major or fundamental ones. And I had believed that establishing a precedent permitting a majority to take away a previously recognized fundamental right from a minority counted as a major change. I would have thought that the Framers would view it similarly, because I expect that they would have disliked making it easy to enshrine inequality in the Constitution. Clearly my views need clarification, but I'm going to seek that from yesterday's decision, not from you.
Perhaps you didn't get that I was responding to R.K.'s comment, specifically his argument that no fundamental right even to traditional marriage exists.x
ReplyDeleteA fundamental right to traditional marriage was upheld in Loving, yes. But not a fundamental right to any arrangement that wished to call itself marriage. That was my point, and you essentially agreed to it by stating that that right did not have to include marriage between closely related persons, or polygamy, or marriage to minors. I understand that in your opinion, same-sex marriage is somehow a less important distinction (a highly debatable point), but the point is, the right in Loving only covered the issue of interracial and perhaps interfaith marriage, and was not a blanket statement that marriage is a right for anyone who wishes to so declare it even when they go outside other parameters.
I will get back to you later, Carlo.
Carlo: Just because you wish to pick a fight with me...
ReplyDeleteTemper, temper. My intent was to clarify a point you raised. That does not constitute "pick[ing] a fight" with you. It was not a foregone conclusion that you would disagree. It was your choice to do so and your choice to "pick a fight."
I haven't read the Massachusetts and Iowa decisions on the same issue, but I expect that they had probably argued along similar lines.
Both disagreed with you in that they first redefined the term "marry" so that it would include same-sex couples then invoked Loving, etc., to claim that redefined right was "fundamental." You claim, above, that was not a valid conclusion based on the precedents cited.
I also agree that it is the role of government to secure inalienable [sic]] rights, but further believe that the judiciary, as a branch of government, has a share in that role.
And that role is not to legislate or amend the constitution but rather to interpret the body of laws and the constitution as written. Should either need to be modified due to an evolving culture, only the legislature has the right to evolve the laws to match and only the people have the right to evolve the constitution. The court is neither capable of nor responsible for measuring the social climate in fulfilling their role.
Let me repeat: whether or not the outcome of a court's decision constitutes judicial activism, in this or any other case, would depend on the reasoning used to arrive at that outcome.
In short, whether or not you approve of said reasoning. How then is your use of the term not outcome based.
And I had believed that establishing a precedent permitting a majority to take away a previously recognized fundamental right from a minority counted as a major change.
This gives to the court a veto power over the people that was clearly unintended. This would allow the court at any time to find some "fundamental right" that retroactively invalidated some past amendment and, instead of altering its finding, simply deleting the inconvenient amendment. Granting any body an unchecked right to amend the document limiting its powers is anti-constitutional and leads ultimately to totalitarianism.
You are not the first member of a democratic society who, disappointed with the outcome of a vote wished for some more totalitarian form of government to force the outcome in the direction you wanted. I would hope that on reflection you would not trade away your overall right to self determination just to change the outcome of a single issue. Once you create a dictatorship on a single issue, you will not be able to revoke that dictatorship on the next one.
R.K.,
ReplyDelete"A fundamental right to traditional marriage was upheld in Loving, yes. But not a fundamental right to any arrangement that wished to call itself marriage. That was my point, and you essentially agreed to it by stating that that right did not have to include marriage between closely related persons, or polygamy, or marriage to minors."
Yes, I think we're essentially in agreement. I would phrase it differently, and say that citizens have a right to marry even family members or multiple partners, but that this right is overriden by compelling interests. But I'll agree that this interpretation isn't recognized in Loving or other decisions, and in any case it amounts to the same thing as what you said, so the distinction probably isn't important. And yes, I agree that Loving was not a blanket approval of all conceivable types of marriages, and any existing right to same-sex marriage would have to be recognized through additional interpretation of the Constitution.
op-ed,
ReplyDelete"My intent was to clarify a point you raised. That does not constitute "pick[ing] a fight" with you. It was not a foregone conclusion that you would disagree. It was your choice to do so and your choice to "pick a fight.""
Perhaps I did view your comment as antagonistic disagreement rather than a mere request for clarification, and my accusation of your "picking a fight" was unfounded. But in the same manner, my acquiescence to your request, even in the form of disagreement, cannot reasonably be construed as "picking a fight" either, since you were the one who made the request. In any case, arguments regarding "who started it" are childish and useless, and we'd be better off abandoning it.
"Both disagreed with you in that they first redefined the term "marry" so that it would include same-sex couples then invoked Loving, etc., to claim that redefined right was "fundamental." You claim, above, that was not a valid conclusion based on the precedents cited."
I'd have to read the decisions before I agree or disagree with the first sentence. But the second one isn't necessarily correct. I don't consider adopting a more expansive view of the meaning of a word (what you refer to as redefining), especially words loaded with complex meaning like "privacy", "speech", or "marriage," as a necessarily illegitimate task for a court to take (even while I acknowledge the dangers of such a practice). Furthermore, one can expand on the meaning of a right established by a precedent without saying that the precedent itself established that right.
"How then is your use of the term not outcome based."
Because it is based on the reasoning and not the outcome? I can dislike the outcome of a decision and still hold the reasoning to be valid. My approval of the reasoning would be based on, among other things, its foundation in constitutionally protected principles as elucidated in past case law.
"This would allow the court at any time to find some "fundamental right" that retroactively invalidated some past amendment and, instead of altering its finding, simply deleting the inconvenient amendment."
Not necessarily. I don't believe that a court can just invent fundamental rights out of whole cloth, or even that they can redefine words willy-nilly. Any invalidation of past amendments would have to have an extremely solid Constitutional foundation (especially because of the dangers you cite), and should never be unchecked.
"You are not the first member of a democratic society who, disappointed with the outcome of a vote wished for some more totalitarian form of government to force the outcome in the direction you wanted. I would hope that on reflection you would not trade away your overall right to self determination just to change the outcome of a single issue."
I don't understand where you get this idea. I APPROVE of yesterday's decision to uphold Prop 8., as a necessary defense of democratic liberty, even while I'm unpleased with one of the practical effects of that decision. And while I also claimed that I found the revision argument to be compelling, I quickly conceded that this was due to an incomplete understanding of that issue, and I explicitly deferred to the judgement of the court in its disagreement with me on that matter. Nor does adopting the view that courts should have greater leeway in interpeting the meaning of constitutionally protected rights necessarily amount to an embrace of tyranny; there is substantial debate on this very point among untold numbers of highly respected legal scholars. My entire line of argumentation has been nothing but an embrace of both democratic principles and constitutionally protected rights. It says much of you that you would construe any of this as a desire for totalitarianism.
Carlo: Perhaps I did view your comment as antagonistic disagreement rather than a mere request for clarification...
ReplyDeleteI did not request clarification, I provided it. You could then agree or disagree with that clarification.
...my acquiescence to your request, even in the form of disagreement, cannot reasonably be construed as "picking a fight"...
Can leveling "unfounded" accusations be so construed?
I can dislike the outcome of a decision and still hold the reasoning to be valid.
So is there reasoning valid enough for a court to, say, order the governor to veto a bill? Is there reasoning valid enough for a court to, say, impinge on our "democratic liberty?" In short, is there reasoning sufficient to allow the court to step beyond its constitutional limits?
I don't understand where you get this idea.
Because you so readily adopted, with incomplete understanding, an interpretation of "revision" vs. "amendment" that would give the courts unchecked power over the people. By the definition you readily adopted, the people would have no recourse if the courts invented a right out of whole cloth, no recourse short of disbanding all of government and writing an entirely new constitution via constitutional convention. However incomplete your understanding was, you could not say you did not understand this consequence at the very least since it was this consequence that created the "revision" vs. "amendment" argument you readily adopted.
Whether you believed the courts would be justified in wielding that unchecked power in this case, once the courts had that power there would be other cases, and those would likely not turn out as well for you. Such is the destiny of unchecked power.
"So is there reasoning valid enough for a court to, say, order the governor to veto a bill?"
ReplyDeleteI understand the spirit in which you're asking this question, but the question really makes no sense. How can anyone sue government for a bill that hasn't even passed (much less have that case make it to the Supreme Court)? Lack of standing would quickly strike that case down. I will say that a Court is empowered to strike down a Governor's executive order if it infringed on constitutionally protected rights.
"Is there reasoning valid enough for a court to, say, impinge on our "democratic liberty?""
Absolutely yes. In the Massachusetts Constitution, for example, it states that "No proposition inconsistent with any of the following rights of the individual, as at present declared in the declaration of rights, shall be the subject of an initiative... petition", and then lists a number of rights. If the people passed a ballot initiative infringing on those rights, the MA Supreme Court would be well within its power to strike it down. And even in California, the court struck down a proposed amendment in McFadden v. Jordan, citing that it was so "far-reaching and multifarious" that it amounted to a revision.
More generally, in this constitutional democracy, even democratic rights are not absolute, and there will always remain a tension between the mixed majoritarian and anti-majoritarian nature of American constitutions.
"In short, is there reasoning sufficient to allow the court to step beyond its constitutional limits?"
The immediate answer that came to mind was, no, of course not, practically by definition. But it occurred to me that an odd quirk of this constitutional democracy is that a Supreme Court is the highest authority empowered to interpret its own power as defined in the Constitution, and is thus enabled to expand its own powers in light of that interpretation. The best example, I think, is Marbury v. Madison, in which SCOTUS established for itself the very power of judicial review that we're discussing, when no such power was previously recognized to exist. Do you disagree with its reasoning in that case? My answer to your question is, yes, in extraordinary situations sufficient reasoning can indeed exist.
"By the definition you readily adopted, the people would have no recourse if the courts invented a right out of whole cloth, no recourse short of disbanding all of government and writing an entirely new constitution via constitutional convention."
ReplyDeleteFirstly, even if I had readily and mistakenly adopted a set of definitions that, if followed to their logical conclusions, would grant the courts unchecked power, that unchecked power was not something I actually desired. In fact I explicitly expressed revulsion towards the consequences that I foresaw, and experienced relief upon learning that I was mistaken. So your claim that I wished for some more totalitarian form of government is both unfounded and contrary to reality.
Secondly, the converse of your argument is that, if the courts could never under any circumstances strike down an amendment based on the protection of fundamental rights, then any such right enjoyed by a minority is subject to possible removal through the amendment process; in other words equal protection rights would in effect be gutless and non-existent. You would trade the tyranny of the courts with another, and in my opinion more dangerous, form of tyranny, that of the majority. Protections against such a regime may not exist in the California Constitution, but they certainly can and do exist elsewhere. My reasoning was not as dismissive of the danger of unchecked power as you imply, it was merely overly concerned with that danger as coming from a different source.
Thirdly, a court so irresponsible that it would deliberately invent rights out of whole cloth in order to allocate to itself unchecked power could and would think of any number of ways to take that power anyway. It isn't necessary to adopt a flawed meaning of the words "amendment" and "revision" in order to engage in real judicial activism. So while my mistaken definitions might enable the totalitarianism we both rightly fear, their rejection would not necessarily prevent it either.