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    March 06, 2009

    Dred Scott & the CA Supreme Court

    Posted by: Andoni


    I watched online the entire oral arguments at the CA Supreme Court yesterday challenging the legitimacy of Prop 8. I must say, I was quite disheartened when it was all over. Our side's argument that Prop 8 was a constitutional revision (major change requiring a higher bar) versus an amendment (simple change requiring a lower bar) pretty much fell on deaf ears.

    Chief Justice Ronald George pretty much summed it up when he suggested that maybe the real problem is that the California constitution is just too easy to change by amendment, having been done over 500 times, and that maybe it should be made more difficult to amend. My first thought was well, yes, but please don't change the rules now that we will probably have to go back to the people to amend again in order to get Prop 8 out of the constitution. Wouldn't that be the irony of ironies... they change the rules to make amendments more difficult to pass after we've been screwed, just in time for when we have to get something passed to undo the damage. Wouldn't that be great?

    There was a line of reasoning during the case that didn't pass my logic test. The California constitution refers to the inalienable rights of all Californians to life, liberty, etc. But the justices also kept referring to the inalienable right of the people to change the constitution. The justices chose to think that the inalienable right of the people collectively to change the constitution (a simple majority) outweighed any inalienable rights of any individual or minority. This translates into the inalienable rights of the majority is more powerful than the inalienable rights of the minority. That means the majority rules the minority, regardless of inalienable rights.

    Conclusion: there are no inalienable rights -- it's simply a matter of majority rules.

    I can't imagine that is what the framers of the CA constitution had in mind when they wrote the constitution and described inalienable rights. If the that is what the CA Supreme Court decides, then the document is internally inconsistent.

    Another point that got me angry was that the justices seemed to admit that it was indeed unfair for a simple majority to take rights away from a minority. They also said it would be unfair to those already married to have their marriages nullified. Both things unfair. But they chose reasoning that seemed to indicate that they would allow the first unfairness to stand, and somehow were finding reasons that the second unfairness should not stand.

    My take-away is that the court would rule against the Prop 8 challengers (our side) and say Prop 8 is valid, but allow those 18,000 marriages to stand. Maybe they believe that by doing this they will seem more moderate, coming down on both sides of the issue giving the Prop 8 supporters a win, while also giving us a little something.

    From my personal perspective (not married in CA or living in CA), I would rather that if we are defeated on Prop 8 the question, that they also rule to un-do all those marriages already performed. My reasoning is that this will demonstrate to the public more fully the damage they have wrought by voting for Prop 8 and it will demonstrate the real agenda of the religious right. If those 18,000 marriages are undone, I believe, we have a better chance of winning in 2010 when we try to overturn Prop 8. It will be crystal clear to the voters in the middle how damaging Prop 8 really was.

    Finally, I was dismayed by the totally slavish way the justices felt their hands were tied by precedent (in the amendment versus revision question) even as they were simultaneously saying how they could see that it was unfair that a simple majority could remove a fundamental right from a minority. And they were simultaneously acknowledging that this was a totally unique case- nothing like this had ever come before them. They were certainly in new territory.

    Well, news flash to the justices. When you are in totally uncharted territory you cannot go to the field manual they gave you in school. Old maps, precedents, etc don't apply! They won't work. Trying to apply old charts, rules, doctrines, to a totally new situation is what chained to the past people like Herbert Hoover do. In truly uncharted territory, smart people and true leaders find new ways to do the right thing and get to the right solution, even if it's not in the books. Think Abraham Lincoln during the Civil War or FDR during the Great Depression and World War II.

    I'm afraid that the CA Supreme Court is going to act more like bureaucratic lemmings using  inapplicable precedents to tackle a never before seen situation, rather than incorporating logic, wisdom, and creativity.

    In one of the most monumental cases ever before the CA Supreme Court, I'm afraid these justices are going to think like the justices who produced the Dred Scott decision, rather than the Brown v the Board of Education decision. The Dred Scott justices based their decision on the old manual; it was tethered to precedent and the past. The justices in Brown used logic, wisdom, and new thinking to move the people to a better place.

    I certainly hope I am wrong and will gladly admit it if I am.



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    1. Lucrece on Mar 6, 2009 10:04:29 AM:

      With the exception of Theresa Stewart, who always kicks ass, our lawyers were very weak in comparison to Starr. Starr performed wonderfully.

      Anyways, I don't think if the 18000 marriages were invalidated, that we'd have better chances. When people voted on Prop 8, the sentiment was very clear: Only straight marriages are valid. The people who voted for this have no problem with forceful divorce because they never considered us married to be gin with.

    1. Strict Scrutiny on Mar 6, 2009 10:17:54 AM:

      I don't think the court has a choice here--it must uphold Prop 8.

      Our California constitution is horribly, horribly flawed because it allows a simply majority of voters to make any number of idiotic amendments, including amendments which strip GLBT people of their rights.

      I looked at all the arguments our side advanced and, as a lawyer, I was not persuaded by any of them. We were grasping at straws.

      I take some small comfort in knowing that we will eventually prevail at the ballot box. For now, this is a bitter pill we will have to swallow. The only thing Prop 8 has truly accomplished is that it has engendered a lot of hatred, ill will, and resentment in the GLBT community toward the people who passed this obnoxious initiative.

    1. Bucky on Mar 6, 2009 2:55:42 PM:

      I was disgusted by the question and answer with Starr about the ability of the CA voters to strip any group of their rights. Can the voters strip away the right to vote (nudge-nudge) from this or that ethnic minority? YES (wink-wink)! Take away rights from women (heh-heh)? YES (smirk-smirk)!

      It was Kabuki of the basest sort. Of course the CA voters can't strip any of these groups of their rights -- their rights are protected by the US Constitution.

      The Court will find that the voters can strip away the rights of any group and stripping rights away from gays is just one such exercise of those rights and there is nothing the poor justices can do. Boo-hoo.

      I think that trying to leave the current marriages intact but stopping future marriages is splitting the baby in half. You can't have it both ways. But they'll try.


    1. Lucrece on Mar 6, 2009 3:06:12 PM:

      Exactly. The other scenarios are not permissible by US Constitution. Sadly, gays aren't a suspect group protected by the US Constitution.

      I agree with Strict Scrutiny. Our lawyers just kept repeating the same answers in a different way. Stewart was the only one that seemed convincing. The others just crashed and burned.

      Let's hope their briefs were far more robust, or that our amicus briefs were. Remember that orla arguments are a formality. The meat and potatoes of the decision really comes from those bulky briefs that were submitted.

    1. Andoni on Mar 6, 2009 3:28:13 PM:

      Bucky, I support gay marriages in CA and I think Prop 8 should be invalidated, but I agree, you can't split the baby.

      For the justices to conclude that Prop 8 is valid they have to rely on some very strict construction interpretation of previous rulings (even though those don't apply to this case), some very narrow and focused thinking and no added reasoning or logic. That's what's necessary to say Prop 8 is valid.

      However, if you apply the same narrow, literal interpretation principles to decide whether those 18,000 couples are still married in CA, you have to conclude that they are not.

      Here is the wording of Prop 8: "Only marriage between a man and a woman is valid or recognized in California."

      It is in the present tense. So let's assume it's the day after the CA Supreme Court decides that Prop 8 is valid. Then on that day the law of CA is that "Only marriage between a man and a woman is valid or recognized in California." If you are a gay couple that got married on Nov. 3, 2008 (the day before Prop 8 was passed), then a strict, literal reading of the law says that that marriage is not valid in CA, that that marriage is not recognized in CA because it is not between a man and a woman. You are not married in CA.

      In order to come up with any other interpretation requires some logic, reasoning, creative thinking, alternative explanations --- THE VERY THINGS THEY ARE APPARENTLY NOT WILLING TO DO IN DECIDING THE BIGGER QUESTION OF WHETHER PROP 8 IS VALID.

      You can't have it both ways. But I guess a supreme court can have it any way it wants, simply because it is the supreme court. But wouldn't it be nice if it used the same standards for both aspects of its decision.

    1. Lucrece on Mar 6, 2009 5:07:53 PM:

      You have to understand the meaning of retroactive and proactive laws. It may seem like the split decision is not logically consistent, but it's a common case in law. Retroactive laws exist within the context of the logic in which they were passed on. Those marriages would be in a different realm of evaluation than future ones.

    1. Bucky on Mar 6, 2009 5:31:14 PM:


      Although not a lawyer, I certainly understand that it is not allowed to pass a law to retroactively make something illegal. But that only applies to statutory law. Things for which there are fines or punishment. So we can't suddenly lower the speed limit and then fine everyone who drove the old speed limit for the past twenty years.

      But this isn't statutory. There is no fine or punishment associated with this new provision of the CA Constitution. This is about a status. It's pretty simple: "Only marriage between a man and a woman is valid or recognized in California."

      As Andoni has pointed out quite well, either this is valid or it isn't. The fact that it was legal for two women to be married at one point is completely irrelevant to the wording of the new provision.

      It is the same as passing a provision stating "only women may have a license to drive." Doesn't matter that men once had a license and bought all those really cool cars to demonstrate how big their dicks were. Now they'll have to find some other way.

      This isn't statutory. It isn't punishing people for past deeds. It merely states current legal status.

    1. jb324j on Mar 6, 2009 6:38:15 PM:

      I'm inclined to agree with Andoni. In May the supreme court said gays can marry...and they did. That was an action. Now the people have redefined the constitution and gays cannot marry. Furthermore they have also changed the definition of marriage in calfornia. If only marriage between a man and a women is valid and recognized, I'm afraid that means that marriage between a man and a man or a woman and a woman is not valid and not racognized by the state of california. Maybe it's valid and recognized by another state, but those marriages cannot be recognized by california. That's a status.

      If you are likening it to contract law, maybe those couples can sue for damages for breach of contract. But they are no longer recognized marriages.

    1. Bucky on Mar 6, 2009 9:26:15 PM:

      Like Andoni, I don't live in CA and I'm not married. Or partnered. Or Civil Unionized.

      Hell, I'm just single.

      But it is a bizarre bit of mental and legal mind wrangling to declare in May that (1) people have inalienable rights; and then discover that (2) gays are people.

      To overturn their May ruling, they are going to have to decide that either of their earlier premises were wrong.

      They can't hide behind the "will of the people."

      Rights are inalienable or they are alienable.

      Gays are people or they are not people.

      So many difficult decisions for a Supreme Court Justice to make in a day!

      Damn those fags for making this an issue. Don't they know their place?

    1. Lucrece on Mar 6, 2009 9:55:14 PM:

      They never said in their previous rulings that any rights were inalienable. In fact, they questioned whether there was such a thing as inalienable in these very oral arguments.

      Fundamental=/= inalienable.

    1. Chuck on Mar 6, 2009 11:38:59 PM:

      Majority rules in America.

      And the majority are idiots!

    1. adamblast on Mar 7, 2009 10:42:26 AM:

      The justices really do seem to be arguing that no rights are "inalienable" by the current overly-broad ammendment process. My fear is that, in their minds, that ship passed when the public overturned their opinion on the death penalty. They kept asking: Is life any less inalienable than liberty in the litany of constitutional rights? They seem to know full well that our liberty is being subjugated, and are unwiling to stop it. They're washing their hands of it, and letting us be the sacrifice.

    1. Strict Scrutiny on Mar 7, 2009 11:53:18 AM:

      There seems to be a lot of anger here, and rightly so. However, this is not the court's fault--don't blame the justices. They gave us the right to marry and denied pleas by the Prop 8 people to stay their decision until Prop 8 had been decided in November. They did everything they could.

      However, there are limits to what the justices can do. They are charged with interpreting the law, not saying what they wish it were. The Supreme Court is not authorized or entitled to simply overturn constitutional amendments they find distasteful or morally repugnant. God knows Prop 8 is both.

      The flaw is our CA constitution which can be amended by the bigots, the neocons, or anyone else by a simple majority vote. THAT'S the travesty.

      The marriages already contracted will most likely be valid. To nullify those marriage would be a violation of the constitutional due process rights of couple who married when it was legal to do so.

      It's time to move forward and plan the next steps in the marriage battle.

    1. Seadog on Mar 7, 2009 2:16:03 PM:

      I blame the justices. They were pathetic, ignorant hacks. What frosted me about Starr was his smugness in being the second smartest attorney in the room (excepting Therese, thank you!) and the concomitant knowledge that he could say anything he wanted to say, knowing these judges just want to boot this whole case. Where was Evan Wolfson!?

      Oh, and the fact that my life (I am married in CA!) is in the hands of 7 Justices, at least three of whom cannot pronounce 'inalienable.' What a bunch of losers. Let's rev up the recall machine across the board, let them taste their own medicine.

    1. mike/ on Mar 7, 2009 4:13:51 PM:

      i find it interesting that in California a simple majority can amend the state's Constitution when the federal and the vast majority of states' Constitutions require two-thirds or three-fourths and have at least a two-step process.

      tyranny of the masses? that was a very small mass that voted for Prop 8.

      500 amendments! how do they keep track of them all? some of them have to be in conflict...

      i would also think that some of the wingers could very well go for passing a referendum to make the process more difficult just to make certain that this one can't be reversed if the Court upholds it.

    1. Amicus on Mar 8, 2009 1:00:22 AM:

      Regarding the "status" argument above - when changing the status of a class, ought the amendment provide expressly for 'invalidation' of prior status?

      If not, then the court has room to continue the status quo ante, by throwing it back into both parties faces, suggesting that the language of the amendment was not clear enough "in face of the grave injustice of invalidating the marriages" the court just found ...well, just.

    1. Amicus on Mar 8, 2009 1:01:32 AM:

      er..."parties faces" s/b "party's faces"

    1. Hawyer on Mar 8, 2009 3:53:45 PM:

      Great reporting Andoni --- I did not realize the arguments were taking place. A couple of observations:

      1. On invalidating the 18,000 interim unions --- Isn't it instructive that the Cal Supremes ho-hummed declaring the rights of California gay citizens "alienable" by majority vote, while they seemed to take pause at judicially invalidating those already married. Perhaps they need another Proposition to vote on those! Coming from a strictly judicial mindset, allowing that kind of rarefied status seems fertile territory for all kinds of constitutional challenges.

      2. On Kenneth Star - OMG is there anything we can do to rid the world of this creepy little C-student who clearly considers himself called by God to police the country's morals. One wonders what makes him tick.

      3. On Carol Corrigan - Cal Supreme's dyke-in-residence. Did she open her mouth during the arguments. Just curious - after she came down on the side of the Prop 8-ers on the first challenge. Thank you Carol-baby. Way to stick up for your community, as it were.

      4. On the horrification concerning Californians' collective inalienable right to strip a a minority of equal protection under law --- well news flash Left Coasters, twenty-nine (2-9) other states had already enacted constitutional discrimination into public law by virtue of 51%. Why-izzit people are suddenly stunned by California's constitutional whimsy in that regard.

      PS For us Georgia residents - our pudgy chicken-eating neocon governor Purdue was all over allowing the PEOPLE-TO-VOTE on allowing queers to marry (which they nixed by a yee-hawing 75%), but on Sunday liquor sales, Hell no the people cannot possibly be informed enough to actually have a say-so.

      Again great reporting Andoni

    1. Sebbe on Mar 8, 2009 7:37:40 PM:

      For those of us in the Northeast and many other places. The real problem here legally is your state constitution. The fact that citizens can introduce ballot initiatives so easily not just in this case but in any case really is very reactionary and very dangerous. In Connecticut (where I grew up) we ask every 20 years should there be a Constitutional Convention. Last year was the time. Overwhelmingly the people said HELL NO. If you look at where these citizens introduced initiatives are located most are in the Wild West of down South.

      Judicially I cannot begin to evaluate how the justice will rule simply by the oral arguments. Like a commenter said above, they are really more of a formality and the "meat and potatoes" is in the briefs.

      Thank you Andoni for attempting to disect this matter from a judicial standpoint. While we are all very close to the matter (whether we will in California or not, personally I am in Boston and not married but able to), the issue at hand is judicial and the justices interpretation. We have far to many people on the street giving their expert legal advise as to what or how the justices should rule.

      I do agree with Andoni that what ever the ruling is, I don't believe either side is going to be satisfied. I'm not sure I agree with him on what's going to happen, we will have to wait and see, but I have a suspicion the court is going to be creative and come up with something no one is thinking of and likely piss everyone off.

    1. Sebbe on Mar 8, 2009 7:38:57 PM:


    1. mademark on Mar 11, 2009 4:44:56 PM:

      What would be more effective in the coming year(s)? The guilt suggested that CA voters will feel at divorcing 18K couples, or the cognitive dissonance of living in a state that has 18K married couples (recognized or not) while no other same-sex couples can marry? I think the latter, in terms of working in our favor. If the 18K marriages are dissolved, it will take but a short while for CA voters to convince themselves they never existed. The greater injustice to portray is that of a strange gay gulag where thousands of people have these weird licenses no other SS couples can get. It's even stranger than New York State recognizing Connecticut marriages while we are unable to marry here ourselves.

    1. Trevor on Mar 12, 2009 7:38:40 PM:

      HATEROSEXUALS knew what they were doing. They don't give a shit if gay couples in California are forcibly divorced infact they want that. These HATEROSEXUALS want to take every right you have away from you.

    1. Michael Ejercito on Mar 23, 2009 3:13:34 PM:

      The two death penalty cases Anderson and Frierson will very likely be the deciding precedent used to justify ruling that Prop 8 is a legitimate amendment.

      Legal protections of the rights of criminal defendants certainly are more deeply ingrained in American history than the entitlement for a same-sex union to be legally recognized as marriage by the State. No less than three amendments to the United States Constitution deal with legal protections of the rights of people accused of crimes. Five sections of the state constitution explicitly refer to legal protections of the rights of criminal defendants and criminals. By contrast, the phrase "homosexual" "homosexuals", "gay", or "sexual orientation" do not appear anywhere in either constitution. The state constitution has been amended to restrict the scope of legal protections of criminals and criminal defendants, including an amendment that declared that the death penalty does not constitute cruel and unusual punishment. Also, see In Re Lance W, which eliminate the exclusionary rule as a remedy for violation of the state protection against unreasonable searches and seizures.

    1. Michael Ejercito on Mar 23, 2009 11:47:47 PM:

      Another word about Dred Scott .

      It was the correct decision, given the Constitution and the laws. It took two constitutional amendments to eviscerate that decision.

    1. Jordans Sneakers on Jan 23, 2011 7:55:43 PM:

      Natural abilities are like natural plants ,that need pruning by study, and studies themselves do give forth directions too much at large ,except they be bounded In by experience.

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