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]

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

[essentialsaltes.livejournal.com]

Yes, it's true... this man wastes more time on the internet than ladyeuthanasia.

I read every jot and tittle of what you wrote. I think the part that confirms my instinct is... 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.

The Supremes are neither required nor forbidden to rule in any particular way, but custom and the make-up of the current court suggest to me that overturning 8 is a longshot. Since I have my legal team on the case... if they did overturn prop 8, how widely would that apply? Would that immediately legalize gay marriage in every state, or would it only apply to CA's specific proposition, or to some federal district or arrondissement or whatever they're called?

Re: 2012

[ian-tiberius.livejournal.com]

if they did overturn prop 8, how widely would that apply? Would that immediately legalize gay marriage in every state, or would it only apply to CA's specific proposition, or to some federal district or arrondissement or whatever they're called?

It would depend on how their decision was written. Lower courts are supposed to follow the interpretations of the higher courts, so if SCOTUS handed down a decision written as shad_0 would write it, declaring that the equal protection clause now applies in full force to sexual orientation, the lower courts would have to abide by that. That does not mean that the next day a same-sex couple in Mississippi could go down to the courthouse and get a marriage license, but it does mean that they could file a lawsuit in federal court to get the Mississippi ban on same-sex marriage overturned, and that court would be obligated to follow SCOTUS' line of reasoning.

More likely (in the still-unlikely event that SCOTUS overturns Prop. 8) they would write a more narrowly-tailored decision that picked a nit of some kind with Prop. 8 specifically. The Court generally tries to avoid overturning the social order, even when the law is clear.

shad_0's most recent comments deserve far more attention and consideration than I can give them at this particular moment (I'm on deadline at work), but I'll try to respond intelligently later today or tomorrow. Whether or not I succeed remains to be seen...

Re: 2012

[shad-0.livejournal.com]

As long as we're engaging in wild speculation:

If the challenge to Proposition 8 makes it to the U.S. Supreme Court, I am supremely confident that Scalia and Thomas will want to uphold it (and that Rehnquist would have sided with them). I speculate that Roberts and Alito are likely to join Scalia and Thomas, based on the fact that they are conservative Bush appointees.

I suspect that Stevens, Ginsburg, and Breyer will want to overturn it (and that O'Connor would have sided with them), but -- just as with the California Supreme Court -- I'm not confident that the Justices will vote to overturn the law just because they want to overturn it. (Nor should they, if there is no legal basis for it.) Even if they were to do so, they'd need to persuade both Kennedy and Sotomayor to join with them in order to squeak out a 5-4 decision throwing out Proposition 8. Although Kennedy often votes with the conservative bloc, he did author both Romer v. Evans and Lawrence v. Texas, both of which applied the equal-protection clause to sexual orientation. Sotomayor is a wild card; although she is an Obama appointee, she has not yet authored an opinion since joining the Court. (Hey, it's only been a couple of months!)

My prediction is that Scalia will write the majority opinion, declaring that the U.S. Constitution contains no right to marry a person of the same sex. That's what SCOTUS typically does when it rejects an equal-protection challenge -- frames the issue as whether the Constitution contains an express right to engage in the specific conduct (as in Bowers v. Hardwick, in which the majority wrote that there was no constitutional right to engage in sodomy). The opinion will probably also trot out the arguments that, if the Constitution really guaranteed the absolute right to marry whomever you choose, then the government could not lawfully prohibit bigamy or incest. The minority opinion will likely come from Ginsburg or Stevens.

If the Court does vote to overturn Proposition 8, it is entirely possible that the opinion may not, in fact, determine that sexual orientation is a suspect class. The Court could hold that disapproval of homosexuals is not a valid governmental purpose, and that the supporters of Proposition 8 have failed to articulate any permissible purpose that the constitutional amendment actually serves -- in other words, that Proposition 8 fails to pass even the easy rational-relationship test. That'd be nice... but, again, I don't see it. (And I know for a fact that both Scalia and Thomas believe that "moral disapproval" is an entirely legitimate basis for a law, and moreover that Thomas does not even believe that the Constitution contains a right to privacy.)

Alternately, the Court could hold that the right to marry is so fundamental that any law unduly burdening that right is subject to higher scrutiny -- that is, the Court could put its focus on what is being prohibited, rather than on who. There are some SCOTUS opinions (including those criminal cases you believe to be irrelevant) with language suggesting that should be subject to higher judicial scrutiny, so it's at least possible. Again, though, I think it unlikely. It will be interesting to see what the district court ultimately rules and on what basis, since the losing side is guaranteed to appeal.

Re: 2012

[ian-tiberius.livejournal.com]

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.

No, my assertion is that the judicial application of the Fourteenth Amendment ought to be limited to how it would have been understood at the time it was passed.

The long and the short of it is that our legislature (at a national level) has never passed a law intended to legalize same-sex marriage. You can take their literal words, absent context, to support your argument, but you can't make a reasonable case that that is how the authors intended their words to be interpreted. I would say that as our legislature has never passed a law intended to legalize same-sex marriage, it sets a very dangerous precedent to claim that they legalized it inadvertently.

Now insofar as the Constitution doesn't say that marriage is under federal control, and insofar as the Constitution does say that "[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state", I believe it's entirely appropriate to 1) allow individual states to legalize same-sex marriage, and 2) to require states to recognize same-sex marriages performed in other states.

I would offer women's suffrage as a comparison. Nowhere in the Constitution does it say that women can't vote. In fact, it says things such as "The House of Representatives shall be composed of members chosen every second year by the people of the several states", and I think we can all agree that women are people. Nonetheless, at no point did the Court ever accept that equal protection (or any other rationale) required that women be given the vote. Instead, it was legalized here and there in particular states, and eventually - when it was felt appropriate by the country as a whole - we passed the Nineteenth Amendment and made it the law of the land.

The California Constitution prohibits homosexuals from doing something that heterosexuals can do: marry each other.

Here's another phrasing: homosexuals have exactly the same right as heterosexuals - the right to marry someone of the opposite gender. As a heterosexual, I too am barred from marrying another man; ergo, homosexuals and I have parity.

Obviously, this is me playing devil's advocate, but my point is that the issue is not so clear-cut as you make it out to be. Many people would sincerely offer up the argument I just laid out above, and accuse you of playing word games just as you would accuse them of doing the same. As a matter of linguistics or logic, neither formulation is unassailable. In such cases I believe it's entirely reasonable to defer to authors' intent.

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

The minority group in question never had the right in the first place. If same-sex marriage had always been legal in our society, then I would completely agree with you that the government couldn't take that right away from same-sex couples. But in that hypothetical world, it would be fair to assume that all relevant laws and Constitutional amendments had been enacted with the assumption that same-sex marriage was included. In our world, that's not true.

I think I'm just blathering now.

Not at all. But we clearly have different judicial philosophies.

Re: 2012

[shad-0.livejournal.com]

No, my assertion is that the judicial application of the Fourteenth Amendment ought to be limited to how it would have been understood at the time it was passed.

The primary problem with that assertion is that no court in the country, including the U.S. Supreme Court, has ever limited the application of the Fourteenth Amendment to situations that the framers of the Fourteenth Amendment would have had in mind at the time. There are literally hundreds if not thousands of cases in which the courts have tossed out laws on equal-protection grounds in situations that no one could have had in mind back when Lincoln was abolishing slavery.

You offer woman's suffrage as an example; I offer it right back as a counter-example. Yes, back in 1920 it took a constitutional amendment to prohibit the government from denying the right to vote based on gender. By the 1970s, however, SCOTUS was using the equal-protection clause of the Fourteenth Amendment to invalidate laws that discriminated on the basis of gender, and today -- even if the Nineteenth Amendment had never existed -- if the Court were to consider a law purporting to deny women the right to vote I am sure the Justices would unanimously find it unconstitutional.

In 1868, when the Fourteenth Amendment was ratified, women's rights were scarcely uppermost in anyone's minds. Not only did no one even consider giving them the right to vote, but there were still laws on the books giving husbands all of the rights to their wives' property. By your reasoning, courts therefore should not interpret the equal-protection clause of the Fourteenth Amendment as protecting the rights of women, because the framers surely could not have had that in mind. Nevertheless, I think you will agree that it is now accepted across the country that the equal-protection clause applies to discrimination on the basis of gender.

The long and the short of it is that our legislature (at a national level) has never passed a law intended to legalize same-sex marriage.

Respectfully, until 1996 neither had Congress ever passed a law intended to outlaw same-sex marriage. Before the Defense of Marriage Act, same-sex marriage was not illegal, and DOMA is currently being challenged as unconstitutional in at least three federal courts and has actually been held unconstitutional at least once. Where you and I part company is -- as it was the last time we discussed the issue -- that I view Proposition 8 as depriving homosexuals of the fundamental right to marry the person of their choice, while you (and those who support Proposition 8) view it as simply restating that no one has ever had any right to same-sex marriage.

Personally I think it a far, far more dangerous precedent to establish that the intentionally broad language of the equal-protection clause doesn't actually mean just what it says, that no "person" shall be denied equal protection of the law. The primary source of the "authors' intent" is the words that the authors actually used. They could very easily have limited the Fourteenth Amendment to issues of race, color, or previous condition of servitude, as they did in the Fifteenth Amendment. The very fact that they did not do so seems to me crystal-clear evidence that they did not intend the Fourteenth Amendment to be so limited, but rather intended it to guarantee equal protection to all people.

homosexuals have exactly the same right as heterosexuals - the right to marry someone of the opposite gender. As a heterosexual, I too am barred from marrying another man; ergo, homosexuals and I have parity.

I have little doubt that this or a similar nugget will feature prominently in the Court's opinion should the issue reach SCOTUS (and be decided as we both expect it to be decided). It'll still be as silly as arguing that everyone, both male and female, who was born with a vagina wasn't allowed to vote back in 1919.

Continued...

Re: 2012

[shad-0.livejournal.com]

...continued:

If same-sex marriage had always been legal in our society, then I would completely agree with you that the government couldn't take that right away from same-sex couples.

Then I guess you completely agree with me, because same-sex marriage has never been illegal in our society until comparatively recently. In California, for example, it was legal until just last year, when 52% of the voters had to go so far as to amend the state constitution to make it illegal.