prop 8 follies
unfortunately, as much as it sucks, the Supreme Court of California plainly had no choice but to uphold Prop 8.
am i sad? yeah, because it does say that peoples' rights are something subject to popular vote, and despite the serious ethical wrongness of this that's how things work when the initiative process is part of your state's legal framework. (For more on this, see Ballotpedia's entry: http://ballotpedia.org/wiki/index.php/California_Initiative_and_Referendum_Law) California's Constitution is very, very long; in the common-law world it is dwarfed only by India's and Alabama's Constitutions. Unusually specific and rather frequently amended, California's Constitution is really everything a Constution shouldn't be; if you want some good examples, consider New Hampshire's or New Mexico's: short, to the point, and not amended for everything. (The Constitution of Canada is also rather efficient.)
is the initiative process flawed? well, live by the sword, die by the sword. that pretty comfy new 522 bus i was on earlier is a product of the initiative process; there's a bunch of shiny-ass new buses and a major service expansion and popular vote approved that transit expansion. sexual orientation, disability, and gender identity as part of the equal rights code in King County...same thing. it's not always tim eyman trying to repress queers, brown people, your mom, and every prairie dog in Pend Oreille County.
the problem is we got clowned. the decision that opened the door to equal marriage rights in California had a really, really fatal flaw: In re Marriage Cases(2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384] voided Proposition 22 under strict scrutiny of the Equal Protection Clause of the California State Constitution. see, in Massachusetts, the decision in Goodridge v. Department of Public Health 798 N.E.2d 941 (Mass. 2003), was instead based on what we legal types call "rational basis review", a much lower form of scrutiny that basically involves proving that the Commonwealth had no justification in claiming a compelling interest in same-sex couples being able to marry. this more general approach would make it trickier to overrule via Constitutional amendment, especially given the structure of California's initiative process.
now, in Massachusetts, it takes more than just an Act of Congress to amend the Constitution. the same is true in many states; MA has a particularly vexing and Byzantine process which meant that such an amendment is very unlikely to come to pass, and MA voters have historically shown an extreme distaste for amending the Constitution of the Commonwealth. in California, it's a lot easier, at least for an amendment and not a revision.
here's where it gets hairier than Ron Jeremy (who gave some dough to No on 8, by the way...): California jurisprudence has historically allowed directly opposing amendments to be voided by, you guessed it, the voice of the people. a good example of this is California v. Anderson, 493 P.2d 880, 6 Cal. 3d 628 (Cal. 1972) being overturned by 1978's Proposition 7 and the direct sequela, People v. Frierson, 25 Cal. 3d 142, 189 (1979) given this, the Supreme Court was basically screwed; if you were to overturn Prop 8 on the basis of the People being unable to amend the Constitution, you'd effectively void EVERY amendment to the Constitution, and that would put California in a very, very bad place. sure, it'd wipe some bad law like Proposition 7, but it'd also wipe things like the CA Lottery, which the State is dependent on revenue from, and the provision for contract cities' very infrastructure. in short, overruling Prop 8, though fair in my heart, would not be fair under California law.
just because the people who hate us won this battle, the war is very much still afoot. take solace in that...and hey, you can still get married in Iowa, Connecticut, and Massachusetts...and coming soon to Maine and Vermont!
am i sad? yeah, because it does say that peoples' rights are something subject to popular vote, and despite the serious ethical wrongness of this that's how things work when the initiative process is part of your state's legal framework. (For more on this, see Ballotpedia's entry: http://ballotpedia.org/wiki/index.php/California_Initiative_and_Referendum_Law) California's Constitution is very, very long; in the common-law world it is dwarfed only by India's and Alabama's Constitutions. Unusually specific and rather frequently amended, California's Constitution is really everything a Constution shouldn't be; if you want some good examples, consider New Hampshire's or New Mexico's: short, to the point, and not amended for everything. (The Constitution of Canada is also rather efficient.)
is the initiative process flawed? well, live by the sword, die by the sword. that pretty comfy new 522 bus i was on earlier is a product of the initiative process; there's a bunch of shiny-ass new buses and a major service expansion and popular vote approved that transit expansion. sexual orientation, disability, and gender identity as part of the equal rights code in King County...same thing. it's not always tim eyman trying to repress queers, brown people, your mom, and every prairie dog in Pend Oreille County.
the problem is we got clowned. the decision that opened the door to equal marriage rights in California had a really, really fatal flaw: In re Marriage Cases(2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384] voided Proposition 22 under strict scrutiny of the Equal Protection Clause of the California State Constitution. see, in Massachusetts, the decision in Goodridge v. Department of Public Health 798 N.E.2d 941 (Mass. 2003), was instead based on what we legal types call "rational basis review", a much lower form of scrutiny that basically involves proving that the Commonwealth had no justification in claiming a compelling interest in same-sex couples being able to marry. this more general approach would make it trickier to overrule via Constitutional amendment, especially given the structure of California's initiative process.
now, in Massachusetts, it takes more than just an Act of Congress to amend the Constitution. the same is true in many states; MA has a particularly vexing and Byzantine process which meant that such an amendment is very unlikely to come to pass, and MA voters have historically shown an extreme distaste for amending the Constitution of the Commonwealth. in California, it's a lot easier, at least for an amendment and not a revision.
here's where it gets hairier than Ron Jeremy (who gave some dough to No on 8, by the way...): California jurisprudence has historically allowed directly opposing amendments to be voided by, you guessed it, the voice of the people. a good example of this is California v. Anderson, 493 P.2d 880, 6 Cal. 3d 628 (Cal. 1972) being overturned by 1978's Proposition 7 and the direct sequela, People v. Frierson, 25 Cal. 3d 142, 189 (1979) given this, the Supreme Court was basically screwed; if you were to overturn Prop 8 on the basis of the People being unable to amend the Constitution, you'd effectively void EVERY amendment to the Constitution, and that would put California in a very, very bad place. sure, it'd wipe some bad law like Proposition 7, but it'd also wipe things like the CA Lottery, which the State is dependent on revenue from, and the provision for contract cities' very infrastructure. in short, overruling Prop 8, though fair in my heart, would not be fair under California law.
just because the people who hate us won this battle, the war is very much still afoot. take solace in that...and hey, you can still get married in Iowa, Connecticut, and Massachusetts...and coming soon to Maine and Vermont!