CA Voters - What you can do to repeal Prop 8 in 2010

[essentialsaltes]

Sign the Petition to get it on the ballot. Even if all you can do is to print out the PDF, sign it yourself, and mail it to their offices, that's a stamp well spent.

Comments

Re: 2012

[essentialsaltes.livejournal.com]

WARNING: I am about to reveal myself as the racist bigot that I truly am.

Awesome, I knew Maria had good taste!

Re: 2012

[shad-0.livejournal.com]

:-p

(In all seriousness, though, I am making a generalization about people based solely on their race and a single data point...)

Re: 2012

[ladyeuthanasia.livejournal.com]

Honey, how can this turn from a popularity contest into a civil rights issue, like Virginia vs. Loving? It has to be taken away from The People, who are obviously regardless of color too stupid and selfish to live.

Re: 2012

[essentialsaltes.livejournal.com]

Until my benevolent dictatorship gets underway, 'we the people' still have the final say, even if it takes a constitutional amendment to get something done.

Re: 2012

[ladyeuthanasia.livejournal.com]

But civil rights can't be determined by the popular vote, hence the Loving vs. Virginia case. There was some abysmal number of people in favor of interracial marriage then -- like 18%? I don't recall the exact statistic I heard on NPR but, if left to The People, interracial marriage would have been illegal for a lot longer.

Re: 2012

[essentialsaltes.livejournal.com]

Judges can overturn laws if they are in conflict with the state constitution, but the people can change the constitution. Indeed, that's precisely what prop 8 did.
In the case of interracial marriage, the federal consitution was involved via the 14th Amendment, but that too can be changed by the people.

Re: 2012

[ladyeuthanasia.livejournal.com]

Okay, NOW I remember. Thanks. :)

Re: 2012

[ian-tiberius.livejournal.com]

I referenced this just now in my other post, but just to clarify: race is a suspect class under the equal protection clause. Sexual orientation isn't. That's why Loving v. Virginia was decided appropriately, but the Fourteenth Amendment would not apply to a comparable suit involving gay marriage.

As for why race is a suspect class and sexual orientation isn't: it's because the people who passed the Fourteenth Amendment understood and intended it to apply to race and not to sexual orientation. You can't simply extrapolate a principle and extend it to encompass somebody else simply because you feel it ought to. That's the same shit the fundamentalists pull when they say that the founders put "In God We Trust" on the currency and made provision for a congressional chaplain, therefore this is a country founded on Christian principles and we should have prayer in schools.

In 1868 the country got serious enough to amend the Constitution to give equal protection to people of all races; there's no reason why the people of 2009 shouldn't be obligated to amend the Constitution again if we want to grant that level of protection to people of all sexual orientations.

Re: 2012

[essentialsaltes.livejournal.com]

As for why race is a suspect class and sexual orientation isn't: it's because the people who passed the Fourteenth Amendment understood and intended it to apply to race and not to sexual orientation. You can't simply extrapolate a principle and extend it to encompass somebody else simply because you feel it ought to.

My ignorance is fairly profound here, but [plays with wiki for a minute] isn't your statement assuming that "original intent" is *the* way to interpret the Constitution? Rather than, say, a textualist interpretation that suggests that when the 14th Amendment says "any person" it means "any person".

Okay, okay, yes there is significant precedent behind the concept of "suspect classes" and who the Supremes have put in that category. But, in the end, they get to make that decision, not the people of 1868, right?

Re: 2012

[ian-tiberius.livejournal.com]

Sure. But if there are two ways to interpret the law, SCOTUS usually tries to go with legislative intent.

The principle here is simple: it's never been the case under the law that a person could marry another person of the same gender, so if you want that to be the law now, then it should happen through the recognized process of amending the law, rather than the judiciary "discovering" a new right.

If the ideological balance of the Court swings (farther) away from my own beliefs, I don't want them suddenly discovering new rights for those I disagree with. (Like organized prayer in schools, for example.) So I can't in good conscience support this just because I happen to agree with the goal. Our system of government is designed to fundamentally resistant to change, and this is a virtue, not a failing.

Re: 2012

[essentialsaltes.livejournal.com]

The principle here is simple: it's never been the case under the law that a person could marry another person of the same gender.

It is the case in a few states, and was briefly the case in California. How does this differ from interracial marriage at the time of Loving when it was legal in some states but not others?

Re: 2012

[ian-tiberius.livejournal.com]

Loving isn't the issue, the underlying law (in this case, the equal protection clause of the Fourteenth Amendment) is. At the time that the Fourteenth Amendment was written, gay marriage had never been legal or recognized. Interracial marriage, however, was legal (or at least not explicitly illegal) in most states.

The fundamental question when it comes to authorial intent is "did the authors consider this?" We can safely assume, I think, that the authors of the Fourteenth Amendment were aware of interracial marriage. We can't assume the same about gay marriage. Therefore it's legitimate to interpret the amendment as implicitly endorsing one, but not the other.

Re: 2012

[shad-0.livejournal.com]

I know we've disagreed about this before, but I'll do it again: There is not one word in the Fourteenth Amendment limiting it to race. The Thirteenth Amendment outlaws slavery (albeit also without explicit reference to race); the Fifteenth Amendment prohibits denying someone the right to vote "on account of race, color, or previous condition of servitude"; but the Fourteenth Amendment contains no such limitation. The applicable sentence in section 1 reads:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The U.S. Constitution guarantees equal protection to every "person" -- not to every black person, or to every brown person or white person or green person or heterosexual person, but to every person, period. Homosexuals are unquestionably "persons"; to the extent that prejudiced bigots can vote to deny equal protection to homosexuals simply because they outnumber homosexuals, the U.S. Constitution can and should prevent it. (Whether it will prevent it depends largely on whether the United States Supreme Court is ready to consider homosexuals a traditionally disadvantaged group, as we have previously discussed.)

And to counter your argument that those who drafted and ratified the Fourteenth Amendment were thinking of race and nothing else, I again remind you that the equal-protection clause is also the basis for overturning governmental discrimination on the basis of gender, despite not saying a word about it. (See Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), in which a unanimous Court held that the equal-protection clause applies to governmental discrimination on the basis of gender; Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), in which the Court applied stricter judicial scrutiny to gender-based discrimination ["To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives"], even though in that case the discrimination was against males rather than females; and more recently United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996), in which the Court (with only Justice Scalia dissenting) struck down the University of Virginia's male-only admission policy as violating the equal-protection clause, because the government could offer no "exceedingly persuasive justification" for the discrimination.)

Re: 2012

[jedifreac.livejournal.com]

In Ian's defense, even if I personally believe the 14th Amendment should treat classifications like gender and sexual orientation with the same scrutiny, the court has this deal where they don't like to do that. Race based discrimination really is given more weight than sexual orientation, even if it shouldn't necessarily be.

During Hernandez v. Robles the court (granted this was a lower court) argued that the clear intent of the Fourteenth Amendment was to address racism, to argue why Equal Protection worked for Loving but not for Hernandez. It's been really hard to argue that A) Sexual Orientation is a suspect class and B) Same-sex marriage is a fundamental right. It's nice that California's supreme court recognizes the suspect class bit. Not so nice that the California constitution no longer recognizes it.

Re: 2012

[essentialsaltes.livejournal.com]

Just to show that both sides of my mouth work...

The U.S. Constitution guarantees equal protection to every "person" -- not to every black person, or to every brown person or white person or green person or heterosexual person, but to every person, period.

I harped on the 'any person' as well, but if our anyperson happened to be a convicted felon, then certain laws would apply to him or her in a discriminatory way, or one could say that the laws regarding the awarding of scholarships discriminate against stupid people. I don't think we want the 14th amendment to apply, um... indiscriminately.

Saying that scholarships don't discriminate, since anyone who scores such and such gets one is equivalent to saying that marriage laws don't discriminate, since anyone can marry a person of the opposite sex.

Re: 2012

[shad-0.livejournal.com]

Funny you should mention scholarships as an example -- when I was in law school, I had a serious disagreement with my Jurisprudence professor, culminating with me writing a paper which, among other things, made the point that someday some idiot would probably argue that it was unconstitutional for public universities to discriminate on the basis of intelligence.

Even funnier you should mention criminals, because as it happens the United States Supreme Court has specifically invalidated a regulation limiting the rights of incarcerated inmates to marry, as an unconstitutional violation of the equal-protection clause of the Fourteenth Amendment. (Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).)

As I understand ian_tiberius, he is asserting that judicial application of the Fourteenth Amendment ought to be limited to cases involving discrimination based on race. That is why Loving v. Virginia is fine with him, but a judicial decision affirming a right to marriage between two men or two women would not be. My point is that the Fourteenth Amendment contains no such limitation, and moreover that the courts have in fact used it in innumerable situations that have nothing to do with race (such as gender or being a convicted felon). In fact, the U.S. Supreme Court has specifically used the Fourteenth Amendment as the basis for overturning laws that discriminate against homosexuals. (See, e.g., Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) [overruling Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)].)

Both you and he are obviously correct, however, that the Fourteenth Amendment does not prohibit every possible type of discrimination. The key factor is -- as the language of the Fourteenth Amendment makes plain -- whether the discrimination deprives someone of "equal protection" under the law. Generally speaking, a law denies a person of equal protection if that person (or class of people) is treated differently than someone else in essentially the same position. That last bit is the tricky bit -- also known as "the bit that lets judges do whatever the hell they want" -- because it depends on the specific circumstances of the law in question.

If a law discriminates, and the discrimination has absolutely no rational relationship to any legitimate governmental purpose, then the law violates the equal-protection clause. For example, if a public university's regulations give a benefit like a scholarship to Person A because Person A has higher grades and test scores than Person B, that is permissible, because the two are not similarly situated within that context. If, on the other hand, Person A and Person B have roughly the same grades and test scores, but the university's regulations give the scholarship to A because B is black (or female, or Jewish, or disabled, or illegitimate, or gay), then that is a denial of equal protection.

If, on the other hand, the law does bear some rational relationship to some permissible governmental purpose, then whether the courts will uphold the law typically depends upon whether the class against which the law discriminates is a "suspect" class deserving of higher protection. Race is such a class. Gender is such a class (though it is not as "suspect" as race). California courts now recognize sexual orientation as such a class; federal courts, so far, do not. The federal district court in which the challenge to Proposition 8 is now pending is bound by the current state of federal law, so it could properly invalidate Proposition 8 only by holding that the law bears no rational relationship to any permissible state purpose. (Personally I don't think it even manages to do that, but it is a ridiculously easy standard to meet.)

Continued...

Re: 2012

[shad-0.livejournal.com]

...continued:

The U.S. Supreme Court, however, is not so bound, and could decide to declare that laws discriminating on the basis of sexual orientation are subject to more rigorous judicial scrutiny. And that's the issue: not whether marriage should be redefined, nor whether people have the constitutional right to marry someone of the same sex, but whether discrimination based on sexual orientation should be subjected to more rigorous judicial scrutiny than discrimination based on, say, intelligence. Unhappily, my suspicion is that the U.S. Supreme Court is probably not ready to make such a declaration. The California Constitution prohibits homosexuals from doing something that heterosexuals can do: marry each other. The U.S. Supreme Court has repeatedly declared the right to marry to be a fundamental right (see, e.g., Meyer v. Nebraska 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978)), so that's not the issue. The issue is whether the government, by enforcing the will of the majority as expressed through the initiative process, can take away an acknowledged fundamental right from a minority group -- which unfortunately it can unless the law is completely irrational or the minority group is deserving of special protection.

I think I'm just blathering now. And moreover I have managed to exceed the maximum length of a LiveJournal comment. Time to stop.

Re: 2012

[ian-tiberius.livejournal.com]

I know we've disagreed about this before, but I'll do it again: There is not one word in the Fourteenth Amendment limiting it to race.

There are two different issues here, so let's separate them. The first is whether or not the Court traditionally thinks equal protection applies more to some anypersons than others. Clearly they do, from the history of decisions involving the equal protection clause, in which they have come up with different levels of scrutiny depending on the class of people being discriminated against. Race > sex > orientation. So that's the "what's likely to happen" argument.

Now the "what ought to happen" argument: Should the Court throw out precedent and declare that equal protection applies in full force to sexual orientation as well? My feeling is no. I think deference to precedent and authors' intent is more important than pushing through this particular goal.

Now, you could take my argument above and apply it to interracial marriage as well, right? Would I have opposed Loving v. Virginia? In response, I would argue that authorial intent in the Fourteenth Amendment must have been different. At the time of the Civil War, five states had laws explicitly banning interracial marriage. This makes absolutely clear that the authors of the amendment were aware that this issue was out there, and contentious, and they chose not to limit their expansion of rights to explicitly exclude marriage. I feel we can assume that they knew of interracial marriages and opted not to ban them, which constitutes an implicit endorsement. Gay marriages, on the other hand, we can probably assume they never even considered.

I'm all in favor of equal rights for homosexuals. I will vote for gay marriage, I would even support a constitutional amendment to make sexual orientation a protected class, but I don't think that the courts should be in the business of locating new rights within laws where we can be pretty certain they were never previously understood or intended to be found. That way lies madness. Let's do this the right way and let there be absolutely no mistake that these rights are legitimate and uncontestable.

Re: 2012

[shad-0.livejournal.com]

Should the Court throw out precedent and declare that equal protection applies in full force to sexual orientation as well? My feeling is no.

That's not throwing out precedent. As noted above, the U.S. Supreme Court has already used the equal-protection clause of the Fourteenth Amendment to invalidate laws discriminating on the basis of sexual orientation. Precedent supports applying equal protection to homosexuals just as it applies to heterosexuals... and, as I've observed before, so does the plain language of the Fourteenth Amendment.

I think deference to precedent and authors' intent is more important than pushing through this particular goal.

See above regarding precedent. And given the truly vast number of cases in which courts have applied the equal-protection clause of the Fourteenth Amendment to laws that had absolutely nothing to do with race, I feel confident that virtually every judge in the country would disagree with you on the issue of "authors' intent."

At the time of the Civil War, five states had laws explicitly banning interracial marriage. This makes absolutely clear that the authors of the amendment were aware that this issue was out there, and contentious, and they chose not to limit their expansion of rights to explicitly exclude marriage. I feel we can assume that they knew of interracial marriages and opted not to ban them, which constitutes an implicit endorsement.

Actually, one might well argue the contrary: The framers of the Fourteenth Amendment knew that there were laws banning interracial marriages, yet chose not to address them at all. One could therefore argue that the framers knew of those laws and opted not to ban them, which constitutes an implicit endorsement. (By way of comparison, the Fifteenth Amendment explicitly addressed and invalidated the state laws prohibiting blacks from voting.)

In my view, the fact that the Fourteenth Amendment doesn't explicitly mention marriage (interracial or otherwise) is no more enlightening than the fact that it doesn't explicitly mention anything else, including race. It is a general statement that all persons are entitled to equal protection under all laws. I think that any attempt to carve out exceptions to this broad language is essentially an exercise in sophistry.

Re: 2012

[shad-0.livejournal.com]

Given the justifiable importance that you attach to legal precedent, I leave you with some final thoughts from the United States Supreme Court on the subject of marriage:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. (Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).)

This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. (Moore v. City of East Cleveland Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977).)

... it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage ... .' (Carey v. Population Services Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).)

We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. (Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).)

Our law affords constitutional protection to personal decisions relating to marriage ... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. (Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).)

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. (Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003))

... the regulation of constitutionally protected decisions, such as ... whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made. (Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990).)

Re: 2012

[shad-0.livejournal.com]

To conclude, a lengthy quote from Justice Antonin Scalia, dissenting in Lawrence v. Texas. I think you will agree with this first part:

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. ... But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts -- or, for that matter, display any moral disapprobation of them -- than I would forbid it to do so. ... It is indeed true that 'later generations can see that laws once thought necessary and proper in fact serve only to oppress,' [c]; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best. ... One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts -- and may legislate accordingly.

I am less certain whether you will agree with the rest of what Justice Scalia has to say, as he bitterly concludes that there is now binding U.S. Supreme Court precedent that should invalidate any provision purporting to bar homosexual marriage:

At the end of its opinion -- after having laid waste the foundations of our rational-basis jurisprudence -- the Court says that the present case 'does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.' [C] Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to 'personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,' and then declares that '[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." [C] Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct [c]; and if, as the Court coos (casting aside all pretense of neutrality), '[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," [c]; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution," [c]? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry."

Justice Scalia was obviously quite unhappy to find himself in the minority on that 6-3 decision. I am curious as to the extent to which you might agree with him.

HAHAHAHAHAHA!

[ladyeuthanasia.livejournal.com]

As a matter of fact, I do!

Re: HAHAHAHAHAHA!

[essentialsaltes.livejournal.com]

Oh man... I flubbed my line.

"I knew Maria was a woman of discriminating taste."

Re: HAHAHAHAHAHA!

[ladyeuthanasia.livejournal.com]

I do like that one better. ;)

Re: HAHAHAHAHAHA!

[shad-0.livejournal.com]

*thwap*