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Wednesday, May 27, 2009

The California Supreme Court's Illogical Prop 8 Decision


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Tuesday, May 26, 2009 will go down as an eventful San Francisco day, sunny, and yet dark, and one that saw a lot of people marginalized who didn’t want to be. But then, who does. Before I turn to who said what, and who got arrested, I stick my head right into the belly of the beast, the California Supreme Court’s decision.

Today, in first upholding Proposition 8, the voter-approved initiative to make same-sex marriage illegal that passed in November 2008, and yet protecting the 18,000 same-sex marriages that were done before the passage of the initiative, the California Supreme Court successfully stood logic on its head. I’ve just read the Court’s entire 167-page decision, and while I understand the reasons given by the majority of justices (six supporting the decision, one against it and even then the six judges that agreed were not perfect in their union) I’m concerned with the logic behind them.

To cut to the chase, the Court has placed the 18,000 same-sex marriages in a legally questionable second-class status of rights that, even though the Court claims to protect their rights under marriage, didn’t even consider if those rights would be maintained if the couples elect to divorce or remarry each other for the sake of the children they have.

First, even though I’ve read the full document, I encourage you to do so as well. Even if you think you can’t understand what’s there, challenge yourself, read it, talk about it with your friends. And most of all learn from it.

A Three-Pronged Decision

The California Supreme Court based its decision on three considerations, if the initiative was a constitutional amendment or revision, the validity of the initiative process itself, and if Proposition 8 itself is retroactive, applying to existing same-sex marriages.

In upholding Proposition 8, The California Supreme Court tried to get itself out of a legal pickle created in early 2008, when it protected same-sex marriages in a case called “The Marriages Cases”. To recap, the Court determined that marriage was not limited to a man and a woman.

But later in the same year, Californians passed Prop 8, which earned 52 percent of the vote. Then, California Attorney General Jerry Brown challenged Prop 8 in the California Supreme Court, most famously. (Brown used the observation that “natural law” was over the California Constitution, and since Prop 8 eliminated the rights of a group of Californians, it was in violation of the “unalienable rights” granted by the California Constitution and “natural law”. In today’s decision, The Court wrote that while Brown’s argument was creative, and I would add logical, it was “without merit.”)

And there we have the Court’s pickle: upholding their own decision protecting existing same sex marriages, and yet protecting the initiative process of which Proposition 8 is a part.

In the Decision the majority of judges argue that the initiative process itself is part of The California Constitution and thus can’t be considered something that alters and is outside of the California Constitution. Moreover, the Court writes that Proposition 8 itself is not a constitutional revision, but just an amendment. Why? Because the Court’s majority claims it only concerns marriage and doesn’t call for a large number of word additions or changes. The decision outlines a number of case examples where the Court’s decision backed the idea that an initiative was an amendment and not a revision to the California Constitution, as some of Prop 8’s attackers have claimed.

Finally, the Court majority asserts that even though the framers of Prop 8 may have intended otherwise, the way it was written itself prevents it from being retroactively applied. Thus, existing same sex marriages are upheld.

But here’s where the problem starts, even if one agrees with the other aspects of the majority’s decision. The Court writes “a retroactive application of the initiative would disrupt thousands of actions taken in reliance on The Marriages Cases by these same-sex couples, their employers, their creditors, and many others” (p. 134) and then goes on to mention that such would result in “undermining the ability of citizens to plan their lives according to the law as it has been determined by this state’s highest court.”

But I argue in upholding Prop 8 and existing same-sex marriages, the Court has placed the rights of the existing married couples in disarray and damaged the California Constitution in the process: it’s not for all Californians. If same-sex married couples chose to divorce, they can’t then marry someone else of the same sex, or remarry the same person even if it would be to the benefit of the family they established! There’s no evidence in the Court’s decision – and I looked for it - that this was taken into account.

The dissenting opinion by Justice Moreno focused on the stripping of rights to a minority group, but since the reality is that being gay or straight is really more fluid than fixed and the choice of the individual, the Court’s decision impacts a much broader group of the population and one that’s hard to quantify.

Peaceful Protests in San Francisco

The decision left a lot of people scratching their heads in and around San Francisco City Hall and the California Supreme Court building just next door. While a peaceful protest complete with pre-arranged arrests amassed on Van Ness Avenue between the City Hall and Davies Symphony Hall, a large press conference was held in the South Light Court in City Hall.

California Supreme Court There, many of the lawyers who worked to combat the passage of Prop 8 shared their observations with the audience. San Francisco City Attorney Dennis Herrera, who played a key role in the battle against Prop 8, said I’m disappointed... I think the Court in my view focused on procedure rather than arguments. And that fundamental rights are part of the debate.” He said it was back to the ballot box, a view shared by the Court itself in the decision issued today.

A Shameful Intellectual Display

The Court’s majority decision was shameful, to say the least. I told someone that people will develop an intellectual argument to support their raw emotions, and this California Supreme Court did just that. The Court’s emotional bent is to protect what was decided by it and by the voters in the initiative process rather than challenge it, even if such an alteration would protect the full state constitutional rights of all Californians.

Some conservatives have interpreted the California Supreme Court’s decision as the Court defining marriage as between “a man and a woman”, but that’s wrong. The Court is protecting the initiative called Proposition 8 which claims marriage is between a man and woman because it interprets the California Constitution as consisting of these constitutional amendments and the Court has stated that its job is to interpret the state constitution and that it’s not above it. That distinction is important because should voters pass a new initiative that overturns Prop 8, the Court would be legally inclined to protect it as well.

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