I watched most of the CA Supreme Court hearings on overturning Proposition 8 on Thursday. Many had predicted that it would be overturned, because these are the same judges who said last May that it was unconstitutional to deny equal marriage rights to same-sex couples.
In May, it was a 4-3 decision, so only one vote would have to change. And one of those judges in the majority in the May decision kept emphasizing in the colloquy on Thursday that this is a different question than they decided in May.
In May, it was a question of denying equal treatment in marriage laws that did not specifically forbid same-sex marriage; now the defenders of Prop8 and some of the judges are defining the question as "overturning the will of the people" in the November vote, which specifically does deny marriage rights to same-sex people. As one put it: there are two competing "inalienable rights:" the right to equal protection and the right of the people to change the Constitution.
The CA Constitution (which was the will of the people when they adopted it) provides two different means of changing the Constitution: (1) by revision, which requires legislative action to put it on the ballot and which, they argue, has never been used except to change the structure of the government; and (2) by amendment, which can be put on the ballot simply by petition of the people and which is to apply for lesser matters. The question then is this: in which category does discrimination against a class of people fall?
Kenneth Starr emphasized in his defense of Prop8 that the people have the right to take away rights of minorities. It doesn't make it right but it is constitutional, in his view. If one judge agrees with him, then the measure fails. If it violates the U.S. constitution, then it could be appealed to the US Supreme Court. But there is no federal protection of the right to marry; in fact there is the federal Defense of Marriage Act.
The rebuttal to this idea -- completely convincing to me -- was that overturning Prop8 does not violate the right of the people to change the constitution. In adopting their constitution, the people expressly set up the more restrictive method for revising the constitution, and that was not followed in adopting Prop8. Taking away rights of a "suspect class" requires revision, not simple amendment. The people would still have the right to try again to pass it by the revision process.
In the end, it will be decided by these 7 judges, and it will likely depend on how each weighs the relative primacy of the right to equal protection and the right of the people to change the constitution, even to take away rights.
They have 90 days to give their decision. I'm pessimistic.
Ralph
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In reading over my comments, I think the lawyers arguing to overturn Prop8 missed what could have been an effective argument.
ReplyDeleteWhen framed as a clash between two rights -- right to equal protection and right to change the constitution -- overturning Prop8 does not deprive the people of the right to change the constitution. It simply says that, in a matter of this importance, they used the wrong process.
Their right to change the constitution would still exist, only it would require the more stringent of the two methods. But nobody's rights would be violated.
As a practical matter, banning same-sex marriage will not make it through the current CA legislature, so it would not likely happen if the stricter process is required.
ReplyDeleteTherefore, one tends to argue this point depending on what you want the outcome to be. Let's hope one of the judges will point this out in their deliberations and convince the others that they can overturn Prop8 without violating the people's ability to choose; whereas if they don't overturn Prop8, they are violating the right to choose for a class of people.
"Kenneth Starr emphasized in his defense of Prop8 that the people have the right to take away rights of minorities. It doesn't make it right but it is constitutional, in his view."
ReplyDeleteI'm still back on the earlier arguments from your previous posts. Relieving people of "rights" hinges on those "rights" causing harm to others. For example, insanity relieves you of the right to walk the streets if, and only if, you are determined to be a threat to others [dangerous]. Were the people of California to vote to remove all people deemed insane from the streets, it would be overturned as soon as the votes were counted [not to mention that some think living in California itself defines insanity]. The Gay Marriage is harmful to others argument is absurd.
You're right, Mickey, and that's why Kenneth Starr and others are trying to redefine the issue as "taking away the people's right to change the Constitution." It's pretty hard to defend taking away people's rights, and the California position was clearer than most, since this court had already affirmed, under the law prior to Prop8, you could not deny same-sex couples the right to marry.
ReplyDeleteNow -- using pure Rovian tactics of taking your opponents argument and turning it against him -- they frame it as "taking away rights'" if the court over-rules the people's will in voting for Prop8.
I wish the lawyers had been able to make a more effective argument of this point to counter the glib, unctuous Ken Starr.