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  • « The Week on GNW (Nov. 2-8) | Main | Prop 8 strains gay race relations »

    November 10, 2008

    Prop 8 and common sense

    Posted by: Andoni

    Prop_8_hateCalifornia Governor Arnold Scwarzenegger thinks the battle of Prop 8 is not over. Yesterday on CNN  he said preventing gays from marrying was "the same as" preventing interracial marriages in 1948.

    In fact, he seemed to urge the California Supreme Court to again lead  on the rights of people to marry the person they love by invalidating Prop 8:

    "It's unfortunate, obviously, but it's not the end. I think that again maybe we will undo that, if the court is willing to undo that and then move forward from there and again lead in that area.

    I'm with Arnold. The court should lead again just as it did earlier this year  and in 1948.

    From the very beginning I could never understand how Prop 8 could be valid if it passed. From a strictly intuitive point of view, how could it be that a simple majority can take away the rights of a minority? In its landmark decision the CA Supreme Court said that the right for gays to marry was found in the state constitution as a basic civil right. How can a fundamental right  be stripped away by a mere simple majority of the voters?

    Looking at this absurd situation from a different angle, in the year 2000 Californians passed Proposition 22 which defined marriage as between a man and a woman. It passed 61.4% to 38.6%. That proposition was invalidated as unconstitutional by the California Supreme Court (above) earlier this year which then opened the door to same sex marriage.

    Jump forward to Prop 8. It was the exact same wording as Prop 22, only this time they labeled it a constitutional amendment. It passed by only 52% to 48% --- much much less support support than Prop 22. But this time they called it a constitutional amendment instead of a ballot initiative. The same wording passed with less support. Does it make sense in any legal scheme that simply changing what it is labeled on the ballot (and getting fewer votes) should allow it to "stick" this time? Not in my law book of common sense.

    The lawsuit by the ACLU and Lambda Legal bases it challenge on the fact that Prop 8 was a major change to the constitution rather than a minor tweak, therefore the procedure for getting Prop 8 on the ballot was invalid. That makes sense too. An explanation of the lawsuit as well as links to the legal briefs can be found here. Additionally, my friend David Cruz has a nice blog in the Wall Street Journal explaining the aftermath of Prop 8 here.

    I certainly hope the California Supreme Court finds its backbone to invalidate Prop 8 after making its landmark decision that the right for gays to marry is a fundamental right under the state constitution. Surely, such a fundamental right cannot be allowed (either from a constitutional law point of view or a common sense point of view) to be revoked so easily.

    UPDATE (after an email from Evan Wolfson) : All judicial decisions have a political component and we need to make sure the political climate is as good as it can be to empower the court to do the right thing. To help the court find its backbone, we need to engage the public, our communities, and our families on how important this fundamental right to marry is for us. The bottom line is that we have a role in this too. We can't smply sit back and expect the court to do all the heavy lifting.

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    Comments

    1. Ken on Nov 10, 2008 10:01:27 AM:

      Great blog

    1. Tim C on Nov 10, 2008 10:17:45 AM:

      I've never understood how the writers of any constitution, the basic governing document of the political body commissioning it, would set things up to allow for changing it as easily as some may be changed. In Georgia, when the marriage ban was added to the state constitution, it was done by a two-thirds of both houses (the House actually approved it on a do-over - it failed the first time) and then a majority (50% plus 1) of the voters. Religious conservatives were able to shove through the amendment from April to November. Amendments should be harder. At least in FL, to pass an amendment on the ballot, it requires 60% approval. That their marriage ban squeeked by by 2% is just unfortunate.

      The framers of the US Constitution have it right. Amending it requires two-thirds of both houses plus three-fourths of the state legislatures. All that does not come easily.

      California is just awful. A ballot referendum to amend the constitution can be placed on the ballot with just 8% of signatures from the total number of votes cast in the previous gubernatorial election, and then it is passed by a simple majority (50% plus one). Obviously, a well-funded, well organized campaign can be quite successful here.

      The lesson here is to know the ground you are fighting on. CA marriage equality proponents were not fighting on good ground. Accurate voter attitude research should have told them the time was not right. At it's height, the anti-Prop 8 forces could show less than 60% support, and that's just not enough. On a touchy, emotion-driven subject like this, unless you can demonstrate solid support, you don't go. A three or four year wait could have had much different results. It's a shame some influential, cool heads could not have headed of the lawsuit that started the whole thing.

    1. Strict Scrutiny on Nov 10, 2008 11:10:09 AM:

      Does it make sense in any legal scheme that simply changing what it is labeled on the ballot (and getting fewer votes) should allow it to "stick" this time? Not in my law book of common sense.

      It does make some sense. The CA supreme court invalidated Prop 22, a state law, on the grounds that it was unconstitutional. The Prop 8 bigots correctly realized the only way they could successfully rip away our marriage rights was to amend the constitution -- which they did. And now anti-marriage discrimination is part of our state constitution.

      Surely, such a fundamental right cannot be allowed (either from a constitutional law point of view or a common sense point of view) to be revoked so easily.

      Actually, it can. And the fact that marriage rights can be taken away so easily exposes a terrible flaw in our state constitution.

      The CA constitution can be amended by a simply, majority vote. Period. It's like Tim C says -- just get a proposed ballot initiative together, collect enough signatures to equal 8% of voters of the last gubernatorial election, file with the Secretary of State, and presto! The prejudiced electorate gets to vote on our civil rights!

      Obviously, this is giant problem because it allows for precisely this type of situation -- an unpopular political minority has its rights stipped away by a prejudicial majority. This also hampers the courts' ability to assume its role as a protector of minority rights.

      That anti-gay discrimination was approved by a majority of voters does not make Prop 8 legitimate or democratic. Civil rights can never and should never be put to a vote of the masses. As we have now seen, this leads to a tyranny of the majority situation, key word "tyranny."

      Tim C is 110% correct in what he says -- it is far too easy to amend the CA constitution. In fact, it's a joke. This needs to be reformed to require something like a 60% majority, at least. It's the freekin' constitution after all.

      I hope Prop 8 is thrown out or overturned. It's garbage legislation and deserves to be wadded up and thrown into the trash heap of history. However, I think it will stand.

      At this time, I fear our remedy will have to be a new initiative to repeal or amend Prop 8. If we have to do another ballot initiative, I sincerely hope this stinging loss will jolt the GLBT community out of its complacency.


    1. mademark on Nov 10, 2008 12:24:37 PM:

      I wish the California Supreme Court had ruled on whether Prop 8 was an amendment or a revision before the election. As much as I hope they overturn it, their reasoning seems to have been that had it failed, a decision on its status would be moot. But exactly the opposite happened: it passed, and were they to throw it out now they will be seen as 'overturning the will of the people' in a much harsher light than had they ruled it invalid in the first place. I don't think they they'll overturn it at this point - they should have done that when they had the opportunity (which also makes me inclined to think they considered it valid). Whatever their grounds might be for throwing it out existed three months ago and I honestly think they'll let it stand.

    1. Strict Scrutiny on Nov 10, 2008 12:44:50 PM:

      I wish the California Supreme Court had ruled on whether Prop 8 was an amendment or a revision before the election.

      I thought they already looked at this question and said it had no merit. Which is why I was puzzled to hear people brining this up again.

      Does anyone else know for sure?

    1. Andoni on Nov 10, 2008 2:02:24 PM:

      To answer Strict Scrutiny, this is what Wikipedia says about why the Supreme Court did not rule on Prop 8 before the vote:

      On July 16, 2008, the California Supreme Court denied, without comment, a petition calling for the removal of Proposition 8 from the November ballot on the grounds it was a constitutional revision that only the Legislature or a constitutional convention could place before voters. Opponents also argued that the petitions circulated to qualify the measure for the ballot inaccurately summarized its effect. The court denied the petition without comment.[49] As a general rule, it is improper for courts to adjudicate pre-election challenges to a measure's substantive validity. (Costa v. Superior Court (2006) 37 Cal.4th 986, 1005-1006.) The question of whether Proposition 8 is a constitutional amendment or constitutional revision remains unresolved, and a new petition arguing that Proposition 8 is a revision was filed by civil rights groups on November 5, 2008.[15]

      http://en.wikipedia.org/wiki/California_Proposition_8_(2008)

    1. A Black, Gay, Jewish Conservative. on Nov 10, 2008 2:59:50 PM:

      Hey,

      I've got some new figures for you. It turns out that a larger sample indicates that Latinos out-voted blacks on 'YES' by four percent. Thank god we had the gay press to send those figures halfway around the world and incite racial slurs against blacks, eh? But then again, I doubt you'd subject Latinos to what you did blacks in WeHo. That is trust you can't buy back....

      "1,200 voters from 50 precincts in Los Angeles in Tuesday's election, estimating that 50 percent of Latinos voted for Proposition 8 and 39 opposed it, while 47 percent of African-Americans voted for it and 40 percent against it."

      http://www.dailynews.com/ci_10910908

    1. Pender on Nov 10, 2008 10:21:06 PM:

      Arnold Schwarzenegger is a coward of monumental proportions. Supposedly he supports marriage equality -- yet he vetoes two bills that would legalize it and begs the state supreme court to answer the question for him.

      It does. He says he opposes any effort to overturn the decision via constitutional amendment, and then promptly disappears until after the amendment passes.

      Now he's whining that the state supreme court should step in again.

      Unbelievable. If you think the proposition was unconstitutional, WHERE THE FUCK WERE YOU DURING THE CAMPAIGN?

      For that matter, where the fuck is the state attorney general in the ACLU's litigation?

      Arnold Schwarzenegger: biggest girlie-man of them all.

    1. North Dallas Thirty on Nov 11, 2008 1:31:17 PM:

      To help the court find its backbone, we need to engage the public, our communities, and our families on how important this fundamental right to marry is for us.

      And they're doing a fine job of it. Truly exceptional.

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