Ambivalence about Prop. 8 trial

I am not quite sure whether I think the tactic of challenging California's Prop. 8, which barred same-sex marriage, in court on federal constitutional grounds was a good idea or not. It's not that I'm not for gay marriage; the Register opposed Prop. 8 and I thought it was going to fail until late election night. There's simply no case against it that has more intellectual heft than that feeling of ickiness most of us had about "queers" when we were 14 or so. But I'm not sure every right I think is valid is a constitutional right, though you could make a case that the 10th amendment covers a lot of rights ground, and the right to marry just might be included. But the courts pay no attention to the 10th.

The case is being brought, however, on 14th-amendment grounds -- equal protection of the laws and due process. It's not a bad case, as Cato's Robert Levy, who is a constitutional lawyer, points out in this op-ed.

I would prefer that the State had nothing to do with marriage, but it does, and since it does it should treat same-sex couples equally. Politically, however, having gay marriage imposed by the courts is arguably less desirable than having it done legislatively or by referendum, which would reflect a pretty strong consensus. Court decisions to date have led to backlashes -- that's how Prop. 8 was filed -- and one worries that it could set the cause back.

On the other-other hand, if it's a right, and especially one that doesn't harm others when exercised (my definition of a real right), which gay marriage certainly wouldn't, despite ahistorical and ignorant claims to the contrary, a majority, no matter how large (and this one is shrinking) doesn't have the right (though it may have the power) to violate it. Justice delayed is justice denied, so maybe going to court is the best way to vindicate this right.

Prop 8: California Supremes change tune

Even though I (along with the Register) opposed California's Proposition 8, outlawing same-sex marriage, last year, in the belief that if the state is going to sanction marriages it should sanction all that people choose to enter into, I'm not as unhappy as some that the Supreme Court chose not to invalidate the measure today. The argument used by Prop. 8 opponents -- that this was a change so momentous that it needed to be designated a "revision" to the California Constitution, requiring a 2/3 legislative approval, rather than a mere amendment, of the kind that get voted on almost every election -- was always a big reach, if not without at least some justification. The differences between a revision and an amendment turn out to be rather subjective.

It's fascinating how much the court had to contort itself to get to this decision, however. Last year it was forceful in saying that marriage, including use of the world, was so fundamental and basic a right that denying it to same-sex couples was not just unconstitutional but downright indecent. This decision said, in effect, "it's only a word, after all, and through civil unions gays have virtually all the legal rights heterosexual couples have," an argument it rejected with force (and, I thought, some eloquence) in last year's decision legalizing gay marriage.

I consider this a temporary setback for the cause of gay marriage. Today's decision brought out protestors in West Hollywood, but a right to marriage granted by the courts in the face of majority opinion against it was politically (if not necessarily intellectually) vulnerable. I think, of course, that the State should have nothing to do with marriage, that it shuld be up to individuals to deciude if they want to marry and churches to decide if they want to solemnize marriages. But the State, the great imperialist aggrandizer of power, is so intertwined in so many aspects of marriage that the best practical approach is equal treatment.

The strongest (politically speaking) way to earn this privilege is through the ballot box, not the courtroom. I think it will happen in California, and reasonably soon. Most observers expected Prop. 8 to lose last November, and there's an argument that it would have without the heavy intervention of the Mormon church (and all those evangelical blacks who came out in droves to vote for Obama while opposing gay marriage, ironically enough). I don't know if 2010 is too soon to put it back on the ballot or 2012 would be more appropriate. But gay marriage will get onto and eventually it will prevail.the ballot and

Angry gays: Where were they when it counted?

I just cross-posted this at the Register's Orange Punch blog and thought it might be of interest here also:

We’ll have a piece in either Sunday’s or Monday’s opinion section (I read so many proofs today I’m a bit bleary-eyed), but it echoes some of my thoughts. We’ve seen all these angry demonstrations organized (and/or arising spontaneously) by gays in Los Angeles (and in San Francisco and Long Beach), including one centered on the Mormon Temple in West L.A. It’s not that it isn’t legitimate to criticize the Mormon church, whose members (not all of them, of course) reportedly kicked in about $20 million of the $30-million-plus the Yes on 8 side raised, some in huge quantities from out of state (yes, I recognize contributions for the No campaign came from out of state, and it’s not illegal or fundamentally illegitimate, just interesting). All this was well known before Tuesday. Where were these protesters before Tuesday? I’ll wager they weren’t out walking precincts or making phone calls or donating money or stuffing envelopes. This was a close race. If there had been this kind of enthusiasm — a little more controlled and a little less angry, to be sure — shown before the election I suspect Prop. 8 would not have passed. As it is these after-the-fact demonstrations look a bit like childish rants and I suspect are more likely to discredit the cause than to advance it.

I have a few more criticisms of the No on 8 campaign — from somebody who wanted that side to win. I think it was too timid, hardly ever (at least in the TV ads) uttering the words “gay marriage” or “same-sex marriage,” which to my mind conceded the moral high ground to the other side and made it seem as if the proponents of gay marriage were ashamed of it and maybe even figured others would find it shameful. I think the “teach gay marriage in school” issue could have been confronted more straightforwardly too, conceding that if Prop. 8 were defeated those schools that had marriage in the curriculum would probably have to mention the fact that gay marriage is legal in California, but this wouldn’t be “indoctrination” or “recruitment” or propaganda about how kids had to approve it and love it. Not doig so left the campaign open to charges of being dishonest.

There was no way to get rid of the footage of Moron Mayor Gavin “whether you like it or not” Newsome of San Francisco, which I think was the single most effective thing the Yes on 8 people had going for them. But all those “taking away a right” commercials without mentioning what the right was confused people, I suspect. It might not have been a bad idea to have a few couples interviewed on just what marriage meant to them. I think the No campaign underestimated the tolerance of the people of California and that’s part of the reason it lost — besides the fact that a lot of gays who could have been involved sat on the sidelines until it was over.

Obama torpedoed gay marriage in California?

If you have any fondness for irony, this should appeal to you. It looks as if Barack Obama's campaign was a big key to the (apparent) success of Proposition 8 in California, which eliminated the right of same-sex marriage to be recognized by the state, even though Barack Obama himself late in the day said he was against it.. It seems blacks supported Prop. 8 by a 69-31 margin according to exit polls (whites opposed it 55-45 and Hispanics were evenly divided) and an unusually high number of blacks voted on Tuesday because Obama was running for president. If that hadn't been the case Prop. 8 would probably have lost.

I'm sad that this is a political issue at all. If I had my way the State would not be involved in marriage at all, but it is, at many levels. I do wish Prop. 8 had been defeated.

Endorsing gay marriage

Here is the Register's editorial on Prop. 8 on the California ballot, which would add to the state constitution the provisions that California recognizes only marriage between a man and a woman. Such a provision passed as a statute in 2000, but this May the Calif. Supremes overturned it, arguing (correctly in my view) that it violated the equal-protection clause in the California Constitution. (The same clause was used in 1048 to overturn a ban on interracial marriage.) Naturally, then, we urged a No vote, which would leave the legalization of same-sex marriage intact.

The polls actually show No ahead on this measure, 55-38 in the most recent poll, probably because gays have been getting married steadily since May, and nobody has felt the institution of marriage crumbling. It's hard to understand the hysteria that remains on the topic, but as you can see if you peruse the comments, it's alive and well.

Same-sex marriage in California -- smooth so far

Here is a link to the Register's editorial on the beginning of legal same-sex marriage in California. We observed that it has gone fairly calmly so far -- oh, there was some joke yelling at the first couple in Beverly Hills that they "burn in hell," but such incidents have actually been fairly rare. Both sides in the issue that will be on the ballot in November, to make man-woman marriages the only kind the state recognizes as part of California's already-cumbersome constitution rather than simply a statute, as was done in 2000,m have reasons not to alienate voters with too much flamboyance of disturbances.

We again defend the California Supremes' decision on equality-before-the-law grounds (having actually read the decision and all the dissents). I'm fascinated that among our commenters are several defenders of gay marriage. I don't know. It's been eight years since the last vote and opinions are changing. The Field Poll shows, for the first time, a 51 percent bare majority in favor of gay marriage. Of course the campaign hasn't started yet. But I'm not sure that initiative is a sure thing.

Register approves gay marriage decision

Here's a link to the Register's editorial on the California Supreme Court's decision that a law restricting marriage to man-woman couples was invalid under the California constitution. This should be a "teaching moment," reminding people that a written constitution, and especially one that includes a bill of rights or sets forward a set of protected individual rights, exists partly to limit government power, as a protection against government, by whatever majority, violating those rights. Thus a supreme court using a constitution to invalidate a law is not being "activist," but doing its job. Courts have been known to go over the line and invent "rights," but having read the decision, I don't think that's the case here.

California Supremes validate gay marriage

The California Supreme Court handed down its decision today on the subject og gay marriage -- or perhaps more precisely, whether California's constitution allows the government, whether through initiative or legislative action, to forbid same-sex marriage or refuse to grant it equal standing. The court (4-3) concluded that it could not. I think it was a good decision.

I haven't read the full 172-page decision yet, but I read enough of it to get the gist. The court (Chief Justice Ron George wrote it), after disposing of some procedural and standing matters, noted that the constitution contains an equal-protection-of-the-laws provision, and the court in previous decisions had affirmed that various constitutional provisions recognize the right to marry as a fundamental individual right of such importance to society and of such value to individual people that government cannot restrict it. To deny it to a class of people because of their sexual orientation is discrimination of a kind that demands "strict scrutiny" (the highest standard of review) of laws that deny or restrict it. The state could show neither "compelling" nor "necessary reasons to deny it, therefore the laws that did so could not stand.

I found it pretty persuasive, and the Register's editorial tomorrow approves it. We'll hear a lot about activist judges inserting themselves into a policy decision that is rightly the province of the legislature and the people. After all, an initiative declaring that only marriage between a man and a woman may be valid or recognized in California passed by a healthy margin in 2000, and the Supremes just invalidated it. But in this case that argument doesn't hold. One of the purposes of a constitution -- the most signal simple example is the Bill of Rights of the national constitution -- is to declare which rights of citizens are so fundamental that the government may not violate them. If the legislative power enacts a law that does so it is the court's duty -- its most important duty -- to invalidate it and uphold the integrity of the constitution. That's what the court did here.