(no subject)
A friend of mine pointed out this message advocating the positions of the lawsuits against Proposition 8. I reiterate one thing before I critique that message. I think Proposition 8 is an unjust law. That said, my attention is how to work the levers of the law to achieve justice.
The distinction between "amendment" and "revision" has been tried before, and hasn't generally worked. The poster's argument that the change is "substantial" and therefore must be in the form of a revision hinges on a judge saying the issue had substance. Well, every change of the law (at any level) has a substance; if it didn't, it wouldn't change the law. You have to make the argument about a substantial change differently, and I don't think it will work. The amendment doesn't change the overall structure of anything; it simply create a legally-discriminated class. However bad that is, it's not relevant to the distinction between amendment and revision. This issue is the "bullshit technicality" I was referring to earlier. It's purely based on procedural issues, and not well-based either. This dog just won't hunt.
The points made about contradiction with the California constitution are made only to advance the argument over the question of substance, so taken in that context are irrelevant. They are, however, grounds for an argument of inconsistency (a different kind of inconsistency than I discussed). As such, they're worth examining.
The inconsistency on due process grounds, as made, doesn't work. California law says that domestic partnerships have all the same rights, and a Federal court denied standing in a lawsuit. This isn't a violation of due process within California, since it was a Federal court. It wasn't a violation of due process in the Federal court, because there's no Federal law equivalent to the California domestic partners one. At the end of the day, this is a Supremacy Clause issue. Perhaps there's another way to make this argument, but I don't see it.
The argument on privacy grounds is much better motivated, but still doesn't work. Since a marriage may be private, so must a domestic partnership. The remedy in this case is to order a county clerk to register a domestic partnership not in the public record. This is a problem with a particular law, not with a definitional conflict between privacy and the definition of marriage.
The equal protection argument is the strongest of these three. If the California Supreme Court maintains its previous position that the right to marriage derives from inalienable rights, then the amendment does not remove those rights and must thus be struck lest the constitution become inconsistent. On the other hand, the alternate argument is that the nature of marriage is not such that the asserted rights are even sensible; this is the purpose of amending by means of a definition. The arguments on both sides of this point have merit.
I do believe you have to appeal to a deeper argument about justice to prevail. The greater principle behind equal protection is the principle that all humans are created equal and that their free choices should be protected all alike. This, however, is not what the law is able to express, because it's not in the form of a rule. Rules are necessarily imperfect expressions of the aspirations behind them. In this case, we have an imperfect rule expressing a grand principle. But taken only as a rule, California now has another rule, one which defines gay marriage out of existence. The rule about equal protection (not the moral principle, but the rule) provides equality under the rules of the law. The grand principle of equal protection would provide equality under the principles of the law.
But there is disagreement about what the principle of the law is and how far the principle of equal protection extends. The manifest evidence for this is the very passage of Proposition 8. So the court is stuck now on how to interpret the rules as rules. That's a tough one, because it's not at all clear that a rule of equal protection can extend past the definitional limitation of a different rule, that about marriage. I wish the lawyers good luck and plenty of lead time, because to make this argument over rules will be difficult, and I'm not even sure it can be done.
So I'll return to my first assertion about this subject. This is essentially a political question. Should the electorate of California wish to enshrine this form of discrimination, they will certainly be able to-if not with this law, then with another. In doing so, they would be sacrificing a grand principle of equality, but since they would have demonstrated they don't believe in that grand principle, at least they're not hypocritical. It would simply be a diminishing of their culture.
Hell, Utah has already diminished itself this way.
The distinction between "amendment" and "revision" has been tried before, and hasn't generally worked. The poster's argument that the change is "substantial" and therefore must be in the form of a revision hinges on a judge saying the issue had substance. Well, every change of the law (at any level) has a substance; if it didn't, it wouldn't change the law. You have to make the argument about a substantial change differently, and I don't think it will work. The amendment doesn't change the overall structure of anything; it simply create a legally-discriminated class. However bad that is, it's not relevant to the distinction between amendment and revision. This issue is the "bullshit technicality" I was referring to earlier. It's purely based on procedural issues, and not well-based either. This dog just won't hunt.
The points made about contradiction with the California constitution are made only to advance the argument over the question of substance, so taken in that context are irrelevant. They are, however, grounds for an argument of inconsistency (a different kind of inconsistency than I discussed). As such, they're worth examining.
The inconsistency on due process grounds, as made, doesn't work. California law says that domestic partnerships have all the same rights, and a Federal court denied standing in a lawsuit. This isn't a violation of due process within California, since it was a Federal court. It wasn't a violation of due process in the Federal court, because there's no Federal law equivalent to the California domestic partners one. At the end of the day, this is a Supremacy Clause issue. Perhaps there's another way to make this argument, but I don't see it.
The argument on privacy grounds is much better motivated, but still doesn't work. Since a marriage may be private, so must a domestic partnership. The remedy in this case is to order a county clerk to register a domestic partnership not in the public record. This is a problem with a particular law, not with a definitional conflict between privacy and the definition of marriage.
The equal protection argument is the strongest of these three. If the California Supreme Court maintains its previous position that the right to marriage derives from inalienable rights, then the amendment does not remove those rights and must thus be struck lest the constitution become inconsistent. On the other hand, the alternate argument is that the nature of marriage is not such that the asserted rights are even sensible; this is the purpose of amending by means of a definition. The arguments on both sides of this point have merit.
I do believe you have to appeal to a deeper argument about justice to prevail. The greater principle behind equal protection is the principle that all humans are created equal and that their free choices should be protected all alike. This, however, is not what the law is able to express, because it's not in the form of a rule. Rules are necessarily imperfect expressions of the aspirations behind them. In this case, we have an imperfect rule expressing a grand principle. But taken only as a rule, California now has another rule, one which defines gay marriage out of existence. The rule about equal protection (not the moral principle, but the rule) provides equality under the rules of the law. The grand principle of equal protection would provide equality under the principles of the law.
But there is disagreement about what the principle of the law is and how far the principle of equal protection extends. The manifest evidence for this is the very passage of Proposition 8. So the court is stuck now on how to interpret the rules as rules. That's a tough one, because it's not at all clear that a rule of equal protection can extend past the definitional limitation of a different rule, that about marriage. I wish the lawyers good luck and plenty of lead time, because to make this argument over rules will be difficult, and I'm not even sure it can be done.
So I'll return to my first assertion about this subject. This is essentially a political question. Should the electorate of California wish to enshrine this form of discrimination, they will certainly be able to-if not with this law, then with another. In doing so, they would be sacrificing a grand principle of equality, but since they would have demonstrated they don't believe in that grand principle, at least they're not hypocritical. It would simply be a diminishing of their culture.
Hell, Utah has already diminished itself this way.