The battle for the right is unending
May. 26th, 2009 07:16 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumWell, it’s done. Not what I wanted, but pretty much what I expected. There will be bigots exulting. There will be the disappointed crying. There will be those, like me, who think this was both wrong, and predictable, blathering.
I am disappointed by the numbers (6-1). I should have hoped for a more divided opinion.
Do I think it was the right decision? No. For the same reason I don’t think it was a good decision. It contradicts itself. It upholds the principle that sexual orientation is a thing for which discrimination is prohibited; but carves an exception in which, “separate but unequal.” There are a host of rights and privileges which are not afforded under the rubric of “domestic partnerships” and some of those are now enshrined as legal, whereas before they were merely questionable.
Married partners are entitled to things such as coverage for health care, access to records, presumptive powers of attorney and I don’t know what all else, which aren’t guaranteed (or in some cases, available at all) to those who are “domestic partners”.
So the Court, just over a year ago, said the right to marriage was fundamental, and today said abrogating that right was perfectly acceptable; a “minor,” change, not a major revision. That’s why I think it both bad, and wrong.
They present it as a very narrow question: , the principal issue before us 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.
Which is true, so far as it goes, but the real question is different, which they acknowledge:
At the same time, as numerous decisions of this court have explained, although the initiative process may be used to propose and adopt amendments to the California Constitution, under its governing provisions that process may not be used to revise the state Constitution. (See, e.g., McFadden v. Jordan (1948) 32 Cal.2d 330; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208; Raven v. Deukmejian (1990) 52 Cal.3d 336.) Petitioners’ principal argument rests on the claim that Proposition 8 should be viewed as a constitutional revision rather than as a constitutional amendment, and that this change in the state Constitution therefore could not lawfully be adopted through the initiative process.
They make the argument, in essence, that this is not a major change because the limits and abrogations are, ”not complete" in their effect on the rights to privacy and due process. In short, the law forbids everyone to sleep under bridge, and the chance to vote means it was a fair shake.
The nonsense is in this part of the decision, “). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
Which is bullshit. It’s provably bullshit because, in this same decision, they explain part of the reason for not dissolving the marriages already made is because such dissolutions would wreak havoc; because the laws don’t recognise the status of “domestic partner,” as being identical to that of, “spouse,” and all sorts of legal arrangements those 18,000 couples who managed to tie the knot before Prop 8 pulled the rug out from under would be also be undone by the conversion of those marriages to “domestic partnerships” (the law also infringes on the privacy of those who would like to marry secretly, or who live apart for some reason, and wish to be married in their separation. Domestic partners don’t have those options, couples who marry do, but I digress).
The crux of the argument they make is interesting: a revision has to have an effect on the way the gov’t is run. This is a clever end run: denying voting rights, redlining, etc., all affect the ways in which people participate in the gov’t. Marriage merely affects their private lives. So denying them the right to be married is not a revision; no matter the hardships it may impose on the (which until, and unless, the actual totality of rights, privileges and perquisites which the state renders to those who are granted the, “term marriage” are devolved in whole, to those who are, “domestically partnered” is the case).
Marriage is, in the law, more than just a word. It’s a legal relationship between the couple and the world. Not just with the State. The State acts to guarantee those right and privileges it says the married enjoy. Presumptive parentage, shared property, end of life decisions, automatic inheritance, visitations (in hospital and prison), etc. are all afforded the married, not the partnered.
Which was the point of the initiative. It wasn’t about the word, it was about the rights. It was, at its heart, an attempt to keep homosexuals from being afforded the same rights and status as straights. That’s a pretty serious change to the constitution which, according to the court, hasn’t been, “fundamentally repealed.” Ok, I got it. Minor repeals of minority rights are OK, just so long as they aren’t fundamentally repealed. Make a zoning ordinance which prohibits Baptists from having a church within half a mile of a school; not a problem, it’s a minor infringement of their rights, not a fundamental one.
Nonsense. Rights are rights. They are absolutes. That’s what separates them from privileges. I don’t have a right to drive. Those few places in which we say rights can be inhibited require serious hurdles be jumped. There has to be a pressing need, for the well-being of the body politic, to allow it. Some of those pressing needs have been stretched a long way (I don’t see why convicts lose the right to vote. I’ll bet they would be a lot more fairly treated if they were a constituency, instead of being dropped in a hole to be ignored; when they aren’t useful for beating up one’s political opponents by accusing the opposition of wanting to mollycoddle them, but that’s a whole ‘nother rant).
If, as they said in In re marriage marriage is a fundamental right, then I can’t see how removing it can be anything other than a revision. The argument that it doesn’t affect things in a more than superficial way is false, on its face. That it relates to a private, not a public, activity is no excuse. Privacy is a right.
The only silver lining is, this gives us, the people of Calif., the chance to fix the mess ourselves. We can stick it in the eye of bigotry. We can show the rest of the world we know we screwed up. This also removes the rallying cry of, “those activist Liberal judges in California hate us,”, which I am sure there are those who spent precious time and treasure to do this evil thing should have used, were the better decision reached by the Court.
Courts make mistakes. Some, like Plessey v. Ferguson take decades to repair. Some, like Dredd Scot v Sanford take more than time to redress (the start of that one took a war to get going, and isn’t fixed yet). The tide is turned, this ship will sail. The marriage of true minds will not always face impediments in my state.
Today is not a day to mourn. Today is a day to listen to Joe Hill; and organise.
I am disappointed by the numbers (6-1). I should have hoped for a more divided opinion.
Do I think it was the right decision? No. For the same reason I don’t think it was a good decision. It contradicts itself. It upholds the principle that sexual orientation is a thing for which discrimination is prohibited; but carves an exception in which, “separate but unequal.” There are a host of rights and privileges which are not afforded under the rubric of “domestic partnerships” and some of those are now enshrined as legal, whereas before they were merely questionable.
Married partners are entitled to things such as coverage for health care, access to records, presumptive powers of attorney and I don’t know what all else, which aren’t guaranteed (or in some cases, available at all) to those who are “domestic partners”.
So the Court, just over a year ago, said the right to marriage was fundamental, and today said abrogating that right was perfectly acceptable; a “minor,” change, not a major revision. That’s why I think it both bad, and wrong.
They present it as a very narrow question: , the principal issue before us 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.
Which is true, so far as it goes, but the real question is different, which they acknowledge:
At the same time, as numerous decisions of this court have explained, although the initiative process may be used to propose and adopt amendments to the California Constitution, under its governing provisions that process may not be used to revise the state Constitution. (See, e.g., McFadden v. Jordan (1948) 32 Cal.2d 330; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208; Raven v. Deukmejian (1990) 52 Cal.3d 336.) Petitioners’ principal argument rests on the claim that Proposition 8 should be viewed as a constitutional revision rather than as a constitutional amendment, and that this change in the state Constitution therefore could not lawfully be adopted through the initiative process.
They make the argument, in essence, that this is not a major change because the limits and abrogations are, ”not complete" in their effect on the rights to privacy and due process. In short, the law forbids everyone to sleep under bridge, and the chance to vote means it was a fair shake.
The nonsense is in this part of the decision, “). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
Which is bullshit. It’s provably bullshit because, in this same decision, they explain part of the reason for not dissolving the marriages already made is because such dissolutions would wreak havoc; because the laws don’t recognise the status of “domestic partner,” as being identical to that of, “spouse,” and all sorts of legal arrangements those 18,000 couples who managed to tie the knot before Prop 8 pulled the rug out from under would be also be undone by the conversion of those marriages to “domestic partnerships” (the law also infringes on the privacy of those who would like to marry secretly, or who live apart for some reason, and wish to be married in their separation. Domestic partners don’t have those options, couples who marry do, but I digress).
The crux of the argument they make is interesting: a revision has to have an effect on the way the gov’t is run. This is a clever end run: denying voting rights, redlining, etc., all affect the ways in which people participate in the gov’t. Marriage merely affects their private lives. So denying them the right to be married is not a revision; no matter the hardships it may impose on the (which until, and unless, the actual totality of rights, privileges and perquisites which the state renders to those who are granted the, “term marriage” are devolved in whole, to those who are, “domestically partnered” is the case).
Marriage is, in the law, more than just a word. It’s a legal relationship between the couple and the world. Not just with the State. The State acts to guarantee those right and privileges it says the married enjoy. Presumptive parentage, shared property, end of life decisions, automatic inheritance, visitations (in hospital and prison), etc. are all afforded the married, not the partnered.
Which was the point of the initiative. It wasn’t about the word, it was about the rights. It was, at its heart, an attempt to keep homosexuals from being afforded the same rights and status as straights. That’s a pretty serious change to the constitution which, according to the court, hasn’t been, “fundamentally repealed.” Ok, I got it. Minor repeals of minority rights are OK, just so long as they aren’t fundamentally repealed. Make a zoning ordinance which prohibits Baptists from having a church within half a mile of a school; not a problem, it’s a minor infringement of their rights, not a fundamental one.
Nonsense. Rights are rights. They are absolutes. That’s what separates them from privileges. I don’t have a right to drive. Those few places in which we say rights can be inhibited require serious hurdles be jumped. There has to be a pressing need, for the well-being of the body politic, to allow it. Some of those pressing needs have been stretched a long way (I don’t see why convicts lose the right to vote. I’ll bet they would be a lot more fairly treated if they were a constituency, instead of being dropped in a hole to be ignored; when they aren’t useful for beating up one’s political opponents by accusing the opposition of wanting to mollycoddle them, but that’s a whole ‘nother rant).
If, as they said in In re marriage marriage is a fundamental right, then I can’t see how removing it can be anything other than a revision. The argument that it doesn’t affect things in a more than superficial way is false, on its face. That it relates to a private, not a public, activity is no excuse. Privacy is a right.
The only silver lining is, this gives us, the people of Calif., the chance to fix the mess ourselves. We can stick it in the eye of bigotry. We can show the rest of the world we know we screwed up. This also removes the rallying cry of, “those activist Liberal judges in California hate us,”, which I am sure there are those who spent precious time and treasure to do this evil thing should have used, were the better decision reached by the Court.
Courts make mistakes. Some, like Plessey v. Ferguson take decades to repair. Some, like Dredd Scot v Sanford take more than time to redress (the start of that one took a war to get going, and isn’t fixed yet). The tide is turned, this ship will sail. The marriage of true minds will not always face impediments in my state.
Today is not a day to mourn. Today is a day to listen to Joe Hill; and organise.
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no subject
Date: 2009-05-26 11:49 pm (UTC)1) File to repeal. I'm sure this is in the works.
2) File to remove the designation of "marriage" from EVERYONE, on the grounds that it's already been decided it's unfair to give it to mixed-gender couples only.
3) Work to make domestic partnership *actually* the same as marriage instead of the name--make it work for people who don't live together, allow minors to become DP's with parental consent, allow confidential DP's, require solemnization for the beginning & a judge's ruling to break it up. If the the anti-marriage crowd are telling the truth, they won't object to making DP work just like marriage except for the name.
In the meantime, point out how much money Massachusetts is making off same-sex marriages, how much California made last summer, and how many more same-sex couples would love to pour money into California's businesses if they were allowed to get married.
no subject
Date: 2009-05-28 01:51 pm (UTC)no subject
Date: 2009-05-27 11:37 am (UTC)Thanks for this write up. I will be pointing more folks this way.
no subject
Date: 2009-05-27 02:04 pm (UTC)Two, a legal contract between two people.
The laws relating to it deal only with the latter aspects. This is the thing the court addressed. It's the aspect which the passage explaining why they weren't going to dissolve the extant marriages (which might have, God forbid, given someone standing to move this; purely state matter, to the US Supreme Court).
The more important aspect of marriage has always been the contractual. That the church so thoroughly intruded into tihs is a huge part of the problem (just look what a mess it made when Henry VIII needed a divorce). To correct this they way you think it should be fixed isn't possible.
Every aspect of the law which relates to marriage would have to be rewritten. THe Federal Code would have to change. It would cause upset, in ways unforeseen, for decades.
no subject
Date: 2009-05-27 03:04 pm (UTC)no subject
Date: 2009-05-27 03:14 pm (UTC)They chose the more reasonable one.
Which leaves the other. And it's the same right? That's what the apologists for bigotry say... it's just the word we're protecting. Well, they can have the word, all to themselves, just as they wanted. It will be safe as houses. The rights (such as they are) will go to everyone.
But they won't be happy; because it was always about the rights.
The number of people who really don't care right now (because it's abstract, they have no dog in the fight) will change. They will have a dog in the fight, because they will suddenly have an ox being gored. Prop 8. would be repealed so fast it would make the bigots head spin like Linda Blair's.
no subject
Date: 2009-05-27 03:26 pm (UTC)And I doubt it would change the balance. Far too many people on our side of this argument think that giving up the word "marriage" would be a reasonable compromise.
no subject
Date: 2009-05-27 03:36 pm (UTC)They don't give a damn about the word. They are using the word to get what they really want; denial of full-status as members of the community. Give them what they say they want, and they lose the battle.
They want to keep homosexuals in a second class condition. Because of the difference in legal status conferred by marriage, they can do that by staking claim to the word. Take the legal status away and the word loses the talismanic property.
It also, immediately, becomes an issue those who have been mostly silent on the subject care about. Because now the bigotry has affected them, not the outgroup.
no subject
Date: 2009-05-28 02:17 pm (UTC)Those who want to keep homosexuals in second-class citizenship have already lost the battle as far as California is concerned, because as has been noted, Prop 8 doesn't take away the co-equal to marriage rights of registered partnerships. And even by using the word "marriage" the state can't grant the federal rights.
Yet the passage and court affirmal of Prop 8 has been treated as a defeat by our side. Why? Because the word "marriage" is important to the same-sex couples who want to get married too.
To prohibit the word "marriage" from applying to same-sex couples is to set up a Separate But Equal regime. And that is inherently noxious, because Separate But Equal is never actually equal.
no subject
Date: 2009-05-27 02:26 pm (UTC)no subject
Date: 2009-05-27 03:02 pm (UTC)The same argument could be used to justify an amendment re-establishing slavery. (Which would presumably be prohibited by the US Constitution's 13th amendment; but my point is it could be justified by this reasoning.) After all, only a minority of persons were slaves, and some eligible for slavery had already been freed.
no subject
Date: 2009-05-27 03:06 pm (UTC)So that sort of change wouldn't be acceptable.
But barring churches from being in certain places probably could.
So too could barring churches from performing legal marriages.
no subject
Date: 2009-05-27 03:24 pm (UTC)Again conflating the US and state constitutions for purposes of this discussion, it would surely be possible to repeal the 18-year-old vote and return the age to 21 without it being taken as "removing them from the ability to freely take part in the government."
no subject
Date: 2009-05-27 03:33 pm (UTC)Which makes the restrictions not a "revision" of the constitution, which was the argument made to the, "Prop 8 is invalid on its face because it wasn't an amendment, but a revision."
So, yes, you could say "everyone who wishes to vote has to travel to the county seat, within thirty days of the election to register with the recorders office." It would, however have to be done by revising, not amending, the constitution.
Saying blacks can't get married wouldn't.
no subject
Date: 2009-05-28 02:22 pm (UTC)no subject
Date: 2009-05-28 03:38 pm (UTC)The distinction isn't, I think, artificial. It's been strained, but there is a difference between adding to the constitution, and rewriting it. I think the jurisprudential history has been too broad in what constitues amendment, which is why parsing out the difference has been so difficult.
To be honest, I didn't give the argument more than 50/50 chance, which was a bit less after the oral argument. Had I dug up the actual case law, I'd have dropped it to 70/30.
Not DOA, but showing up pretty ill.
no subject
Date: 2009-05-27 03:30 pm (UTC)My read is that the court was saying that the only thing prop 8 takes away is the _name_ 'marriage', and that any of the _rights_ associated with marriage remain available to non-het couples. It seems to me that the court is saying 'we read prop 8 very very narrowly, and with this narrow reading then it becomes a valid constitutional amendment', implying that if they were to read prop 8 broadly then it would have become a revision, and thus not a valid change to the constitution.
They explicitly say that, except for the designated word marriage, that their rulings in the previous 'Marriage Cases' stand, and that they will continue to enforce _all_ of the provisions of the state constitution. I read this as saying that if it reaches their desk, they will support any and all 'marriage rights' for non-het couples, with the exception of the word 'marriage' itself.
This doesn't render prop 8 meaningless or moot, unfortunately. Because over and over again these issues will have to go to a court to get adjudicated. But in my mind it sets things up to move in the proper direction without giving the bigots more ammo in the form of 'the court ignores the vote of the people'.
-ETR
no subject
Date: 2009-05-27 03:44 pm (UTC)How long to get a case on probate, and automatic inheiritance trough the courts? The thing is, "Marriage" has a lot of small things which go with it. Things which only come up in rare circumstance, some of which only become known when they happen.
Those things are denied. If you never find out you weren't getting it (see Lily Ledbetter) how will you know to sue for it? Futhermore the court seems to think the present Domestic Partnership laws are equal, which they aren't, so I am not so sanguine in my estimation of future rulings.
The victory can only be phyrric if the slow evolution of the laws makes it so. Right now, they've won.
no subject
Date: 2009-05-27 06:00 pm (UTC)-ETR
no subject
Date: 2009-05-27 07:10 pm (UTC)I hope you are wrong on this. I don't want justices carving decisions in an effort to create, "an avalanche of change."
I want them to read the briefs address the question before them, and enquire deeply into the details at argument and debate it in chambers to close the question.
Building a decision to create open questions so they can later rule on would be stepping outside their lane.
no subject
Date: 2009-05-27 07:46 pm (UTC)"Equal rights after you jump through an extra set of hoops" is not equal rights.