Why CA Proposition 8 Must Be and Will Be Overturned

From Jerry Brown, California State Attorney General

The California Supreme Court finds itself center stage tomorrow when it will hear oral arguments on whether it should uphold Proposition 8’s ban on same-sex marriage.

The case touches the heart of our democracy and poses a profound question: can a bare majority of voters strip away an inalienable right through the initiative process? If so, what possible meaning does the word inalienable have?

The state faced a dilemma like this before. In 1964, 65 percent of California voters approved Proposition 14, which would have legalized racial discrimination in the selling or renting of housing. Both the California and U.S. Supreme Courts struck down this proposition, concluding that it amounted to an unconstitutional denial of rights. read on…

The religious right must make a choice; to sacrifice the very principles insures them their freedom to worship in favor of making some sort of point about their interpretation of doctrine OR to hold inalienable rights of all humans about institutionalized, politicized bigotry.

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  1. #1 by Kevin Owens on March 4, 2009 - 9:41 am

    It will be interesting to see how this plays out.

  2. #2 by Richard Warnick on March 4, 2009 - 9:48 am

    The Prop 8 debate, as much as anything else, was about whether a simple majority vote is sufficient to strip away constitutional rights of minorities. I expect the California Supreme Court to reverse Prop 8 on the basis that it was not a mere amendment, but in fact a constitutional revision, which requires a 2/3 vote of the legislature.

  3. #3 by Larry Bergan on March 4, 2009 - 12:40 pm

    It’s that GD constitution again!

  4. #4 by jasonthe on March 4, 2009 - 1:15 pm

    You can watch tomorrow’s hearings via webstream (via MyDD diarist Nikkid — seventh diary down in the list).

  5. #5 by Cameron on March 5, 2009 - 10:12 am

    This sounds curiously identical to what I’ve read of Paul Mero’s reasoning behind opposing the Common Ground Initiative.

  6. #6 by Shane Smith on March 5, 2009 - 11:09 am

    Cameron, how is that?

    And yes, I am going to buckle up for a wild ride on this one, since I read your total misunderstanding of the way taxes work on your blog…..

  7. #7 by Buffy on March 5, 2009 - 11:09 am

    Thank you for your balanced and logical perspective. It’s uncommon coming out of Utah. I myself am on pins and needles right now, given that my marriage is one of the 18,000 that will be affected by today’s hearing. Ironic that those who claim they’re “defending marriage” seek to destroy so many of them.

  8. #8 by Shane Smith on March 5, 2009 - 8:27 pm

    It isn’t ironic Buffy, it is sad.

    Personally I suspect that many of them have rotten marriages or can’t admit that they are themselves gay, and can’t stand the thought of someone else being happy in a relationship they are so sad in.

    Thanks for the link to your own site. I can’t speak for the compassionless conservatives, but I for one feel for you and your wife. Some of us think that you deserve the same chances to be happy as the rest of world, and we will keep fighting.

    …and it isn’t over. Poll after poll show that the tide on this is slowly turning with age. It isn’t much comfort I know, but when enough of the bigots have died of old age, we will make one more step towards real equality. And all the pain and worry and struggle that you and your wife and many more like you have put up with will be for something good. I hope it is in time for you, but I know it will be. In time.

    Good luck, and keep fighting. Some of us straight folks got your back.

  9. #9 by Buffy on March 5, 2009 - 10:56 pm

    Shane Smith,

    Thanks for your support. It’s very much appreciated.

    It’s been hypothesized by more than one person that the bigots are afraid we’ll do marriage better than them. But IMO it’s ultimately about wanting to maintain their position of self-proclaimed superiority. If we get equal rights they lose it and have to find another “enemy” against whom they can fight their war–for they have no identity without their war. (Read Chris Hedges’ American Fascists. It’s a real eye opener.)

    I know it’s only a matter of time, but I’d rather hoped to see equal rights in my lifetime. Sadly it may not be until several generations later that they are achieved.

  10. #10 by Shane Smith on March 6, 2009 - 7:31 am

    It is true Buffy, there always has to be someone we can stuff in the barrel and punk so that we can feel better about who we are.

    Don’t worry, if the GLBT group gets equal rights the bigots will still have the atheists!

    ….oh, wait.

    ;-)

  11. #11 by Kevin Owens on March 6, 2009 - 9:41 am

    Atheists are bigots sometimes too. You’ve got a good point, though: if homosexuality becomes normative and respectable, some other group will be looked down on instead.

  12. #12 by Ken on March 6, 2009 - 12:53 pm

    The California Supreme court does not have the authority to amend or strike down articles in their Constitution. Only the State Legislature and the people are granted that authority. By definition there is no such thing as an un-Constitutional Constitutional amendment. The only caveat is that a State Constitutional amendment cannot run afoul the US Constitution. Therefore opponents of Prop 8 should be pursuing this in Federal Court to decide that question. The California State Supreme Court has no Constitutional standing to even hear this case.

  13. #13 by Richard Warnick on March 6, 2009 - 1:06 pm

    Ken–

    The California State Supreme Court heard the case yesterday. Your “standing” argument is moot.

    Ken Starr (yes, that Ken Starr) appeared on behalf of Prop 8, and actually argued that anyone anywhere ought to be subjected to losing all their constitutional rights by a simple majority vote– even freedom of speech!

  14. #14 by Frank Staheli on March 6, 2009 - 1:08 pm

    Of course Cliff isn’t concerned about constitutionality. He’s concerned with some supposed inalienable right that was not innovated until after 6,000 years of earth’s history and after about 232 years of America’s history.

    What’s ironic is that without constitutionality, none of us would have even the concept of “inalienable right” in our lexicons. Then again some people’s lexicons are much bigger than others.

    Apparently the least of Cliff’s concerns is how things like abortion, no-fault divorce, and an overturn of Proposition 8 by a rogue court would affect children. Don’t children have any inalienable rights?

  15. #15 by Shane Smith on March 6, 2009 - 9:15 pm

    ” He’s concerned with some supposed inalienable right that was not innovated until after 6,000 years of earth’s history”

    Seriously? 6000 years?

    I mean how can we take anything you say seriously after that?

    Richard:

    “actually argued that anyone anywhere ought to be allowed to lose all their constitutional rights by a simple majority vote– even freedom of speech!”

    Isn’t that how we lost our constitutional rights? a simple majority failed to elect Bush and then he started taking them away?

    Oh wait, I forgot, the right is all about protecting the constitution.

    ….now.

  16. #16 by cav, on March 6, 2009 - 9:39 pm

    Shane, not to put too fine a point on it, but God years don’t necessarily hold to the three-hundred-and sixty-five day rule.

  17. #17 by Shane Smith on March 7, 2009 - 8:02 am

    or even to the “exists” rule.

    But I am not worried about gods years, cause that Frank posting, and I assume Frank is human, and thus I assume his years do follow the 365 rule.

    Unless…… God? Is that you via Frank? If so, give us a sign!

  18. #18 by Don on March 7, 2009 - 12:27 pm

    Frank,
    Maybe rather than throwing around meaningless platitudes you could explain to us exactly what effect overturning Prop 8 will have on children. You’re not going to claim that “(gay people) will not generally make good parents” again, are you?

  19. #19 by cav on March 7, 2009 - 12:32 pm

    Or even to the ‘exists’ rule.

    Well, there is that.

  20. #20 by cav on March 7, 2009 - 1:06 pm

    Thank you, Don.

  21. #21 by Shane Smith on March 7, 2009 - 1:48 pm

    Don, we all know that straight parents raise straight kids, and gay parents raise gay kids, and that is where all the gays we have in society right now came…. from….

    Wait, I haven’t got my fundamentalist thinking cap on yet today. Lemme get back to you on this.

  22. #22 by Frank Staheli on March 9, 2009 - 8:33 am

    Shane,

    You caught me. I am a fundamentalist Bible bashing bigot. ;-)

    In all seriousness, I can see how you may have jumped to a conclusion from my last comment, but what I meant was not that earth was created 6,000 years ago, but that there is evidence that after billions of years of evolution, evidence supports the fact that humans have lived here for about 6,000. Cavemen didn’t leave any history, so, therefore, history started 6,000 years ago.

    Don,

    Well, actually, yes, I am going to (still) claim that. You didn’t do a very good job of combating my claims over on SUMP in the first place.

  23. #23 by Shane Smith on March 9, 2009 - 9:43 am

    Well Frank, having followed your link to your own blog, I am not sure I buy that. But lets move on….

    “What’s ironic is that without constitutionality, none of us would have even the concept of “inalienable right” in our lexicons”

    No. The constitution is mostly cribbed from a combination of Kant, Hobbes, Locke, and ancient greece. It is even arguable that Tom Paine argued his own additions to inalienable rights before the constitution was fully conceived, depending on how you want to view it. And since the Lockian tradition of natural rights, on which the constitution is modeled, states that we we have a right to liberty defined roughly as “do whatever you want unless it conflicts with the right to life or liberty of others” that means that two consenting adults, under that tradition, have a right to be seen as married and receive all the benefits thereof, unless you can show that that same marriage somehow takes rights away from you.

    What rights do you lose when to consenting adults of any sex marry?

    In fact, under a strict interpretation of Lockian natural law, the religions that donated money to remove a right from others that does no harm have invalidated their believers rights to believe in them without persecution, which makes any threats to to the life and liberty of followers of those faiths no longer illegal. Just so long as we want to argue about natural rights.

    Or, if you want to base it on history, the concept of inalienable rights might just date back to the stoics, 2500 years ago, and certainly shows up in Islamic law as well.

    And while we are on history, the first gay unions or marriages also date to ancient rome. In fact officially recognized same sex unions appear to predate Jesus. So as long as we are slaves to history, we should drop Jesus for gay marriage.

    And sadly, while I have no idea how dons argument at SUMP (whatever that is) went, actual peer reviewed research finds little reason to think that gay parents re much different from straight parents.

    http://www.ncbi.nlm.nih.gov/pubmed/9363577?dopt=Abstract
    http://www.ingentaconnect.com/content/bpl/jcpp/2004/00000045/00000008/art00009
    http://www.ncbi.nlm.nih.gov/pubmed/6630329?dopt=Abstract

  24. #24 by Don on March 9, 2009 - 10:14 am

    LOL, if you say so Frank. As far as I can tell you didn’t support your claim very well in the first place. Do you have anything else to offer?

    Furthermore, you still haven’t explained why that would be a valid reason to deny marriage equality to gay couples. As I said before, we don’t do that to dumb people, or poor people, or criminals. Do you really think it’s a good idea to start restricting freedom and equality to certain segments of our population based solely on nebulous claims that they’re not fit to parent?

  25. #25 by Cliff on March 9, 2009 - 10:17 am

    Chances are, Frank is not interested in explaining anything.

    When your faith requires you to take a certain position, one is forced to simply throw shit out and hope for some validation. Not unlike hoping for redemption.

  26. #26 by Kevin Owens on March 9, 2009 - 11:16 am

    Ken,

    By definition there is no such thing as an un-Constitutional Constitutional amendment.

    If the governor decided to just write his own amendment and tack it onto the state constitution, that would be an unconstitutional constitutional amendment. It’s important that people follow the constitutional rules in getting an amendment passed.

    Shane,

    Oh wait, I forgot, the right is all about protecting the constitution …now.

    Better late than never. Although, when protecting the constitution, it’s important that we look at the Constitution as a living document. If the founding fathers wanted to write it in stone, they would have written it in stone.

    What rights do you lose when two consenting adults of any sex marry?

    Straight people would lose some of their property rights, as they would generally have to pay higher taxes. Gay marriage will cost the public money because it will give gay couples a tax break for their relationship, besides social security survivor benefits and a host of other financial gains.

    I see that this is a weak argument, because none of us has an inalienable “right” to low taxes. Nevertheless, I am mentioning it in order to demonstrate that gay marriage does hurt straight people, even if it doesn’t take away their inalienable rights.

    Now, simply letting the gays be gay costs nothing to a straight person. Live and let live.

    Don,

    Furthermore, you still haven’t explained why that would be a valid reason to deny marriage equality to gay couples. As I said before, we don’t do that to dumb people, or poor people, or criminals. Do you really think it’s a good idea to start restricting freedom and equality to certain segments of our population based solely on nebulous claims that they’re not fit to parent?

    We do it to young people, to closely related people, and already-married people. Is there scientific proof that polygamous parents are always worse than monogamous parents? No? Then prohibiting gay marriage has as much basis as prohibiting polygamous marriage.

  27. #27 by Don on March 9, 2009 - 12:23 pm

    Kevin,
    Funny, I don’t see how marriage is restricted in those cases based solely on nebulous claims that they are unfit to parent. Frank has made a claim, gay couples are generally bad parents therefore they shouldn’t be allowed to marry. Why don’t you leave the straw man comparisons out of it and simply tell us if you agree or disagree with that claim? If you do agree then maybe you can come up with a good reason why.

  28. #28 by Kevin Owens on March 9, 2009 - 1:06 pm

    Don,

    I have heard several times the argument that polygamy should be illegal because of nebulous claims that polygamous parents are unfit. It’s very similar to the same-sex marriage issue. (More similar than the often-brought-up similarity to the racial civil rights movement.)

    It’s not a straw man argument, it’s a hypocrisy test. A lot of people support gay marriage but not polygamy, but rarely articulate a good reason for the difference.

    As for Frank’s claim that homosexual couples make worse parents than heterosexual couples, I assume that the claim is correct, but I have yet to find scientific research supporting it. I do believe that if a kind of relationship is unfit for parenting, it should not be included in legal marriage.

  29. #29 by Don on March 9, 2009 - 3:42 pm

    Oh, you like to play games, eh Kevin. I’m not really interested in arguing polygamy; it’s a completely separate issue. But if you must know, I believe polygamy should be decriminalized between consenting adults and any abuses within polygamous relationships should be agressively prosecuted, just as they should be in monogamous relationships.

    I do believe that if a kind of relationship is unfit for parenting, it should not be included in legal marriage.

    Really? What do you mean by “a kind of relationship”? Just the kind you disagree with? Here’s a hypocrisy test for you: Would you support restricting marriage from homeless people? Or how about really stupid people? Afterall, couples made up of “those people” would seem not to be fit for “ideal” parenting. That is what this is all about, someone’s (Paul Mero’s ?) idea of what is “ideal,” right? Should we deny others equality simply because they aren’t quite as “ideal” as we are? Sounds like an awfully scary road to travel to me . . .

  30. #30 by Kevin Owens on March 10, 2009 - 10:01 am

    Yes, Don, I believe that really stupid people should not be allowed to marry. Two people with Down’s Syndrome, for instance, should not be marrying and having children. Homeless people shouldn’t be marrying or having children either. Our nation would be better off if we were more responsible with our sexuality and procreation.

    So, you have passed my hypocrisy test and I have passed yours. At least we are consistent.

    I’m softening up to the idea that maybe gay parents aren’t so horrible after all. I am prejudiced in that regard, but have been unable to find solid scientific evidence supporting that claim, so my opinion is weakening. If this trend continues, I may change my mind and support gay marriage someday.

  31. #31 by Don on March 10, 2009 - 3:42 pm

    Kevin,
    Your ideas scare the shit out of me.

    Homeless people shouldn’t be marrying or having children either.

    Maybe they shouldn’t. But do you really want the government to tell them they can’t?

    Where are you going to draw the line? What happens when people decide it’s time for Mormons to stop marrying because it’s just too dangerous for the rest of the country to have too many little cultists-in-training running around (for the record, those aren’t my thoughts about Mormons, I’m just making a point)?

    Our country was not founded upon restricting the rights and freedoms of individuals who may not be liked and/or approved of by the majority. Our country was founded upon the ideals of personal freedom, liberty and equality for everyone. Telling dumb people they aren’t good enough to marry doesn’t live up to those ideals. Telling Down’s Syndrome people they can’t marry doesn’t live up to those ideals. Telling anyone they shouldn’t enjoy the same rights and freedoms as you when their “ideal” may not quite be same as yours is completely antithetical to the idea of America. When it comes to restricting the rights, freedoms and equality of any segment of our population we must use extreme caution and we better make sure we have a damn good reason for doing so.

    Regarding the idea you have that gay parents are horrible, I’d like to know where you got that idea in the first place. Why would you err on the side of assuming gay people are inherently bad parents? What is it in your psyche that makes you default to the negative when it comes to gay people?

  32. #32 by Kevin Owens on March 11, 2009 - 10:22 am

    What happens when people decide it’s time for Mormons to stop marrying…

    The government already did this, in the Edmunds-Tucker Act of 1887. They also forced us to forever prohibit Mormon-style marriage in our state Constitution, as a condition for statehood.

    Our country was founded upon the ideals of personal freedom, liberty and equality for everyone.

    I must disagree with you on this point. Our country was founded on the ideals of freedom, liberty, and equality for all free white men. We’ve been gradually enfranchising other groups over time, but it was not so in the beginning.

    I am a strong supporter of individual liberty, but at times it must be suppressed for the good of others. In the case of incestuous or Down’s syndrome couples, allowing marriage would perpetuate disease and misery for any offspring those marriages produce. While liberty is a worthy ideal, we must be pragmatic in its application.

    What is it in your psyche that makes you default to the negative when it comes to gay people?

    The few homosexual men I have met personally have been miserable. It’s not a good condition to be in. If, by wise public policy, we could prevent the perpetuation of this unhappiness, it would be good to do so.

    Because children frequently share physical and personal characteristics with their parents, children of gay parents are probably at greater risk of being homosexual themselves. If homosexuality is biological and heritable, then offspring of gays will have a greater chance of being gay themselves. If it is social, then children who are socialized by gay parents will have a greater chance of being gay. If it is a combination of both factors, then the children are at an even higher risk.

    Therefore, if homosexuality causes unhappiness and gay parenting causes homosexuality, then gay parenting causes unhappiness and should be avoided. Ergo, gay marriage should be prohibited for the same reason incestuous marriage is prohibited.

  33. #33 by Don on March 11, 2009 - 1:29 pm

    The government already did this . . .

    And? Are you okay with our government doing it again just because this time it’s not Mormons who are being denied equality and freedom?

    In the case of incestuous or Down’s syndrome couples, allowing marriage would perpetuate disease and misery for any offspring those marriages produce.

    I think there’s a lot of parents with children who have Down’s and people with Down’s themselves that would take great offense at that comment Kevin. Why do you assume Down’s causes misery? You do know that people with Down’s can marry, right? BTW, there was no requirement to have children in the marriage license I signed.

    Your last three paragraphs are a joke, right? I mean, you can’t be serious about making public policy judgments based on a few people you know. I know quite a few Mormons who really aren’t that happy. Maybe it’s the Mormon thing causing the unhappiness. If Mormonism causes unhappiness then it should be avoided, ergo Mormons shouldn’t be allowed to marry and have children.

    Do you see how ridiculous you sound?

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