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.
no subject
Date: 2009-05-28 01:51 pm (UTC)