Prop 8 oral arguments, Part II

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29 Responses

  1. A.J. Sutter says:

    You’re taking for granted that we know what the arguments are here, and who the players are (though I think I can guess which side Ken Starr is on). Could you please provide a link to a summary of the arguments pro and con, to help us understand code like “Amendment, not revision”, what Jerry Brown had proposed, etc.?

  2. Kaimi says:

    Good point, A.J. Sutter. Give me a minute, and I’ll remedy that.

  3. Aaron Brown says:

    Thanks for this, Kaimi. All very interesting and useful, particularly for those of us who haven’t watched any of the video footage.

    AB

  4. Aaron Brown says:

    Thanks for this, Kaimi. All very interesting and useful, particularly for those of us who haven’t watched any of the video footage.

    AB

  5. WMP says:

    Thanks, Kaimi.

    I, too, felt that Starr did a fantastic job. I’m no CA constitutional scholar (I don’t live in the state and am not barred there) but it seemed to me that Starr didn’t have much logical alternative except to say that the Amendment power could be used for just about anything (outside of messing with structure). He made the important point, however, that the power would be significantly restricted by protections in the US Constitution.

    I was not impressed by Minter (although I only had a chance to see his rebuttal, which I thought was entirely unpersuasive). You are right that the CA AG lawyer appeared a bit out of his league — I felt for the guy. I guess I’m surprised that the anti-8 folks couldn’t/didn’t put together a better team.

  6. A.W. says:

    I am sure the California Supreme Court wasn’t buying it, but I think you ask 10 people on the street and they would say the original ruling was ridiculous and they were restoring the constitution to original intent. This is the most direct rebuke of a Supreme Court’s judicial activism since the framers of the United States Fourteenth Amendment put in the citizenship clause. And when the chips were down, the very framers of that amendment said that it meant that Dred Scott was not merely overturned, but it was wrongly decided.

    And the decision was in fact ridiculous. It stated that civil unions were exactly equivalent to marriage in all but name. that may or may not be true, but in that circumstance, they were saying that the STIGMA of the different name was enough to render it unconstitutional because it sent a message of the inferiority of same sex relationships.

    In that respect, it might be said to resemble Brown v. Board of Education. In Brown the schools were clearly not equal, but the NAACP Ink fund lawyers stipulated it was so the case would be about whether the stigma of separation rendered it inherently unequal. It was a gambit that paid off.

    But recognizing this parallel also exposes how poorly it applies to gay marriage. Are we really going to say that gay relationships are so perfectly on par with straight ones that the state can’t say “all things being equal, you should be in a straight relationship”? I mean there is the obvious fact that all gay relationships are non-procreative, even if you buy none of the moral arguments. And before you complain that this isn’t a choice, well, then how do you explain bisexuals?

    Rather than seethe about the whole thing, gay rights advocates need to realize that this should be a wake up call. if there was one state in the union that would allow gay marriage by popular consent, I would have thought California was it. Think of it as an inverse of a lyric from “New York, New York”: if you can’t make it there, you can’t make it anywhere. The advocates of gay marriage simply haven’t figured out how to win over the public. That is where they should start instead of trying to impose the change they want by going over the public’s heads.

  7. Geoff B says:

    Kaimi, thanks for this. Very interesting and a good summary.

  8. Mark D. says:

    The people can make unwise decisions, but at least they are the ones making them.

  9. Brendan A says:

    What I found interesting that nobody from the Anti-Prop 8 side spoke to (or at least not effectively) was that allowing Prop 8 to stand renders the recognition of suspect classes meaningless and subject to the will of 50% + 1 of the populace. Sexual orientation is a suspect class and the court ruled that preventing them from marrying treated them as second class citizens based on their sexual orientation. Prop 8 is a great big, “So.” Well, what happens to the next suspect class that 50% + 1 of the majority wishes to treat like second class citizens? Say, equal employment treatment for women. According to Starr’s theory, 50% + 1 of the populace could remove that protection for women. But gender is a suspect class… “So.” And if this type of action is allowed to happen via the initiative amendment process, what bare majority in their right mind would ever pursue any other type of action? Initiative amendment would grant 50% + 1 of the populace a path of least resistance and the California Supreme Court would never again hear a case in which a suspect class received unequal treatment. All such cases would be left to the US Supreme Court to decide… THERE is the connection to Raven. If allowed to stand as passed, the majority will simply drive by the courthouse and flip the bird to the court on their way to strip the rights of suspect classes… and the court would have no power to do anything about it. “But we recognized them as a suspect class…” “So. Who cares?”

  10. A.W. says:

    Brendan,

    > Sexual orientation is a suspect class

    Right, to the point that the state of California cannot even express a preference on the subject.

    > Well, what happens to the next suspect class that 50% + 1 of the majority wishes to treat like second class citizens?

    Right, why have all this meaningless democracy, huh?

    Look, its one thing if we were talking about the right to vote, freedom of speech, freedom of the press. You might argue that rights that go to the core of maintaining a democracy should never be abridged, ever, even with a majority vote. But our democracy has survived over 200 years without gay people having the right marry each other, indeed California survived over 100 years before suddenly discovering that sexual orientation is a suspect classification. I think it is safe to say our democracy will survive, regardless.

    > Say, equal employment treatment for women.

    Well, given that women are 53% of the population… And 99.9% of men don’t want to sleep on the couch…

    > And if this type of action is allowed to happen via the initiative amendment process, what bare majority in their right mind would ever pursue any other type of action?

    Well, apparently that is the California constitution. I guess the people of California had this crazy notion that the people should be able to overturn their supreme court easily. I can’t think of any recent, crazy California ruling that provides a good example of why this was necessary.

    But I will repeat myself. If gay marriage advocates could win popular support in one state of the union, it would be California. The fact that you can’t even win there, should be an alarm bell. How far do you think you can go in the teeth of public opinion?

  11. A.W. says:

    By the way, on the retroactivity issue, according to this site…

    http://www.voterguide.sos.ca.gov/text-proposed-laws/text-of-proposed-laws.pdf

    Here is the operative language of prop 8:

    > Only marriage between a man and a woman is valid or recognized in California.

    That is pretty unequivocal to me. It means that the day before Prop 8 was passed a lesbian marriage was valid. The day after it is not.

    If they meant “from now on,” well, why didn’t they say that? Why didn’t they say, “Beginning on the date that this amendment is ratified, the state of California shall not recognize any marriage unless it is between a man and a woman”?

    So sorry, Mr. Sulu and Ellen. You guys aren’t married. Or at least if the California Supremes gave a damn what the people thought you wouldn’t be.

  12. Bruce Boyden says:

    “I think it is safe to say our democracy will survive, regardless.”

    A.W., our democracy has survived many things. Slavery, internment camps, J. Edgar Hoover. That’s not really an endorsement of any of them.

    “Well, given that women are 53% of the population… And 99.9% of men don’t want to sleep on the couch…”

    Classy.

  13. A.W. says:

    Bruce,

    So… not letting gay people marry = slavery. good to know. you know it is that kind of gentle, reasoned criticism that one the debate over proposition 8. i don’t know why gay advocates think it is a winning slogan to say “vote my way, you redneck!”

    Btw, it used to be believed in some parts of the country that slavery was necessary for democracy to survive. Crazy, yes, but that is what people thought. Thank God the Supreme Court accepted amendments to the constituion despite their previous misgivings.

    > “Classy.”

    Oh, lighten up.

    The deeper point is that judicial supremacists seem to think that but for the judiciary we would send jews to the ovens, create rape camps for women, and reinstitute slavery, or something like that. The notion that women could be pushed around in the ballot box was only the most laughable example of that.

    I am continually stunned to see how so many americans can have such a fundamental disbelief in democracy. Of course the majority is not always right. But they are more often than not.

    The fact is it is laughable to say that the founding fathers so valued gay relationships that the state cannot demonstrated a preference for straight ones. Yes, even in California, that is flat out ridiculous. and that is why the people of Cali actually slapped their supreme court back on this.

    And if the constitution didn’t ever say it (and it didn’t), then you have to instead figure out how to persuade people to change the statutes or the constitution itself. sorry, that is the way things are. We can’t just appoint a king who decides that what is best for us. We rebelled agaisnt that notion, remember?

    Sheesh.

  14. Brendan A says:

    http://www.america.gov/st/democracy-english/2008/May/20080609194934eaifas0.5346796.html

    Well, this is one of the principles of democracy, Bruce… the protection of a minority from the will of a majority. That’s part of that “meaningless democracy” you speak of.

    And you seem to be under the impression that in California gays and lesbians don’t have the rights associated with marriage… they have the legally recognized ability to take advantage of all of the marriage rights. If you believe that, simply because they can’t call it marriage, they aren’t participating in the right to marry, you’re deluding yourself. They have all of the substantive rights of marriage. Prop 8 did nothing to change that – and that occurred via legislative action and not through judicial intervention. What Prop 8 does is legally convey superior social status to heterosexual couples who enjoy the exact same rights.

  15. Brendan A says:

    >Well, given that women are 53% of the population… And 99.9% of men don’t want to sleep on the couch…

    Yes, this is why the Federal ERA has never been ratified… because 99.9% of men don’t want to sleep on the couch.

    And, you’re figures aren’t quite right. According to the 2007 US Census, women make up 50% of the population of California. Now, it only takes one individual out of that 50% to be coerced by her abusive boyfriend to make up a bare majority… 50% men + 1 battered girlfriend, and it’s done.

    Besides I’m not talking about what’s likely, I’m talking about what’s possible. It’s unlikely that the President of the United States will abolish Congress and the Courts and rule as a dictator… does that mean that we should allow that possibility? Or should we limit the President’s authority so that he doesn’t have the option?

  16. Kaimi says:

    Let’s remember what was being argued.

    The question was not about equality. The oral argument focused on whether the amendment process changed the constitution enough to be classified as a revision. That’s a much narrower, technical question. The people did vote on the issue. Was it a small enough change that it’s the kind that a simple majority can change?

    Several times, advocates tried to bring up broader equality issues. Unless those were framed in a way to answer the narrow technical question, the court cut them off very quickly.

    This was not a relitigation of the issues of Marriage Cases. The court was simply not interested in hearing argument to that effect.

  17. Brendan A says:

    Kaimi,

    But it is the qualitative issue, not the quantitative issue that the court is going to have to deal with… it is the far reaching impact on a government plan. You’re right… nobody was going to relitigate RE: Marriages.

    Kennard said it seemed to be willy nilly, this desire to limit the sovereign power of the majority here. But it’s not.

  18. A.W. says:

    Brendan

    Right. we should lay awake at night, worried that 100% of all men, and one woman, will vote to screw over women in a way that cannot ever be undone.

    Look, a constitution is best understood as a risk-avoidance device. Risk avoidance is not a digital issue, but an analog one. Determining the need for constitutionalism, and how much you want to do to prevent amendment and the like is best determined by looking to 1) the likelihood of the occurrence of the undesirable outcome, against 2) just how undesirable that outcome is.

    Take for instance Kosinski’s famous opinion on the second amendment:

    > My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed–where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

    Whether you accept his argument or not, what he is saying is that the right to bear arms is designed to prevent an outcome so horrible that however unlikely it is, we are still justified in taking strong measures to prevent it. A small chance of a really terrible outcome is unacceptable on one end of the spectrum, a large chance of a less terrible outcome is unacceptable on the other end. By contrast, a small chance of a less terrible outcome might be acceptable.

    There are certain things necessary for you to even call a country a democracy. I am sure this is not an exhaustive list, but at the very least there is the right to vote, the right to bear arms, the right to freedom of expression, freedom of belief and the right to an education. (By the way, for the record, slavery violates virtually all of those—after all, how long would slavery exist in conjunction with a right to bear arms by such slaves?) When supreme courts overturn the will of the people this is actually an encroachment of one of the most basic of those rights: the right to vote. It is not to say it is unjustified, but it only should be justified in very important cases, particularly to protect those other core rights necessary to maintain democracy, yes maybe even to overrule or limit a constitutional amendment encroaching on those rights. But compared to freedom of speech, gay marriage seems like a trivial issue, not worthy of such serious protection.

    It is a false choice to say that if we allow the people of California to decide on gay marriage, we are allowing the people to create a dictatorship. Indeed, the argument is silly.

    Kaimi

    True. It is about revision v. amendment, to some degree. But how can you call it a revision when it is just restoring what the constitution said in the first place? It is bizarre and frankly wrong-headed for the Supreme Court of California to make up a constitutional right out of whole cloth and then when they get slapped back say, “oh, well, changing this is so fundamental that you have to go through a convention.”

    The original decision was so ridiculous that even Californians couldn’t go along. Its as simple as that. And if you don’t think this was hanging in the background, you are naïve. They were rebuked and they knew it.

  19. Kaimi says:

    “But how can you call it a revision when it is just restoring what the constitution said in the first place?”

    Actually, the constitution was silent on this issue — it didn’t contain specific language either way.

  20. A.W. says:

    Kaimi

    give me a break. the constitution did not say that gay people were so equal to straight people that you cannot even stigmatize them. The only reason why it was “silent” is becuase the founders never thought the SC would ever say anything so crazy. Their mistake, but still, the supreme court was out of line in the previous case.

  21. blah says:

    A.W., if prop 8 is upheld, it means that a 50%+1 majority can amend the CA constitution to strip others of fundamental constitutional rights. How would you feel if a 50%+1 majority stripped you of the right to bear arms?

    whoops.

    In this case, the federal constitution could step in to save you. But imagine if the federal constitution were silent on this. The analogy holds.

    We should all be a little scared in the wake of this. It is a wake-up call that CA’s constitution needs to be changed to make it much, much more difficult to amend.

  22. A.W. says:

    Blah

    The right to bear arms, a bulwark against the imposition of a dictatorship = gay marriage.

    Sheesh. No sense of proportionality.

    And they didn’t strip them of anything. THEY NEVER HAD IT. the California Supreme Court was out of bounds declaring that gay marriage was in their constitution in the first place and the people slapped them back.

    > the federal constitution could step in to save you.

    Yes, after decades of the Supreme Court ignoring a right actually written in the constitution, now you are in a tither because the California Supreme Court might let the people undo the creation of a new right by the California Supreme Court.

    > But imagine if the federal constitution were silent on this. The analogy holds.

    Actually no. the constitution is “silent” because they never imagined in a thousand years the Supreme Court would say anything that stupid, that willfully ignorant, or that dismissive of democracy. The constitution is silent on the issue in the exact same sense that it is silent on a MAN’S right to have an abortion. i.e. the founders thought the whole idea was too ridiculous to worry about.

    Go back to my post above where I point out that a constitution is a risk-avoidance device and understand how it applies in that case.

    > We should all be a little scared in the wake of this. It is a wake-up call that CA’s constitution needs to be changed to make it much, much more difficult to amend.

    Sure. We should eliminate both short cuts to amendment. The first is this referendum system; it should at least require a 60% vote. But the second is judicial fiat. That needs to be eliminated, too. Because so long as judicial fiat exists, its hard to get all that outraged over giving the people the ability to reverse them with a 51% vote.

    The fact was the California Constitution never allowed gay marriage and the people slapped the Supreme Court back for ridiculously claiming it did. I don’t see anything scary about that.

  23. A.J. Sutter says:

    BTW, A.W., if the right to bear arms is one of the “certain things necessary for you to even call a country a democracy,” which countries meet all of your criteria of being a democracy?

  24. Kaimi says:

    “The fact was the California Constitution never allowed gay marriage and the people slapped the Supreme Court back for ridiculously claiming it did. I don’t see anything scary about that.”

    But that wasn’t the legal issue in this case, at all. Like I said above, this was not about relitigating Marriage Cases, or deciding whether Marriage Cases was a good idea, or anything like that.

    The question was whether this was a big change, or a little change. That was really all that was at issue here. If it’s a big change, then regardless of your theory of democracy or the role of the judiciary, then the people can’t do it by mere initiative. (And that’s written in the constitution). It’s only if it’s a little change, that you can do it this way.

    Blah,

    You’re sounding like Jerry Brown. (grin)

    Really, though, that wasn’t the legal issue (and Jerry Brown’s attempt to bring it in was a complete disaster).

    Could a mere majority vote to take away the right to bear arms? Under the existing system, it’s almost certain that they could (at least at the state level). Would that be a big change (a revision). Very unlikely. So it would be just fine.

  25. Brett Bellmore says:

    “But that wasn’t the legal issue in this case, at all. Like I said above, this was not about relitigating Marriage Cases, or deciding whether Marriage Cases was a good idea, or anything like that.”

    On the contrary, that’s EXACTLY what it’s about, whether or not the state supreme court is interested in admitting it. They over-reached, the people are attempting to put things back the way they were again. And the question in this case is whether they will be permitted to. Or whether the court will issue a ruling amounting to, “The state constitution is ours, not your’s: Hands off when we make changes!”

  26. A.W. says:

    First, a shame on all commentators who didn’t even catch the reference to The Life of Brian. :-)

    A.J.

    > BTW, A.W., if the right to bear arms is one of the “certain things necessary for you to even call a country a democracy,” which countries meet all of your criteria of being a democracy?

    Well, I think of it this way. A country without the right to bear arms is not today a non-democracy. But it IS a dictatorship waiting to happen. Freedom without the ability to defend it is only a temporary condition. That was the wisdom of our forefathers and I am glad to see it reborn in this new century.

    Kaimi

    > But that wasn’t the legal issue in this case, at all.

    I didn’t say they were openly acknowledging it. How could they? They know the people of California would never accept a ruling that said, “the constitution doesn’t say it, but we really think it should, so we decided to amend the constitution on our own.” That would be a time for the second amendment, I suppose, or before we go there, wholesale impeachment and removal from office. Given they can’t tell the truth about the original ruling, they can’t tell the truth now about what Proposition 8 really means, or what this case is really about. And if you think that is a travesty, I would tend to agree.

    But I would not assume the California Supreme Court ever had any illusions about what they were doing in the first place, or what the people of California were saying to them in response. I know how the arguments went. I went to a very liberal law school, so I can hear it in my head. Maybe they even borrowed Guido Calabresi’s idea that they would be merely changing the starting point, the initial presumption. But they certainly thought that with millions of gay people getting married, that the people wouldn’t have the heart to take it away. And they gambled wrongly, because it turns out that the Calabresian ideal of a paternalistic judiciary is not very popular.

    Brett

    You know, I almost wish they would be that honest about it. In a democracy, it is usually a confession that what you are doing is illegitimate if you can’t even admit what you are really doing.

  27. manaen says:

    Well, given that women are 53% of the population… And 99.9% of men don’t want to sleep on the couch…

    Yes, this is why the Federal ERA has never been ratified… because 99.9% of men don’t want to sleep on the couch.

    And, you’re figures aren’t quite right. According to the 2007 US Census, women make up 50% of the population of California. Now, it only takes one individual out of that 50% to be coerced by her abusive boyfriend to make up a bare majority… 50% men + 1 battered girlfriend, and it’s done.

    .

    This seems based upon the very broad, and very erroneous, assumption that 100% of women favor(ed) the ERA. You ignore the strong opposition to the ERA by many women while it was considered and, I believe, now. e.g. Paula Hawkins, who was the only female U.S. Senator back then, opposed it. The women of many state ERA conventions opposed this amendment, including the most heavily attended one on Utah, where 10K (2% of the state’s adult female population then) voted against the ERA (the next highest attendance was in CA and NY, with 1k each).

    .

  28. Brian D. says:

    Kaimi,

    Excellent summation of the oral arguments! Yeah, I’m late to the game (as always), but I do appreciate your post.

  29. Colin says:

    A.W: gay marriage to some citizens (those who are gay, or strongly support civil rights and don’t use guns) may be as important, if not more important than their right to bear arms. It is all a subjective issue.

    The fact is this is the first amendment ever passed tot he CA Constitution that actually limits people’s rights. Constitutions are usually meant to make sure rights aren’t infringed upon. How is barring a gay person from marriage infringing on a heterosexual’s right to do the same thing?

    You may feel very good about your position right now, as you feel the great ‘majority’ in democracy is speaking against gay marriages, but the determing factor here is largely age.

    As a college student I can guarantee you the younger generation will take Section 7.5 out of the CA constitution, and as you can see now with Iowa and Vermont legalizing gay marriage, other states will move ahead of California until it decides it can move up to speed in civil rights or get left in the dust.