Why I Can’t Celebrate the Prop 8 Decision

August 5th, 2010 at 7:14 am | 119 Comments |

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Hugo Black once said that the layman’s understanding of constitutional law is that what he likes is constitutional and what he dislikes is unconstitutional. Witness as proof the reactions to today’s ruling overturning Proposition 8.

I’m gay, and I support same-sex marriage. Yet, when I witness my gay friends’ Facebook statuses joyfully being updated, celebrating together and cheering the decline of ignorance, I feel too conflicted to join in. I simply don’t think that Proposition 8 is unconstitutional — and I don’t believe that the judiciary is a pinata that I get to hit until I get what I want.

In an ordered society, the job of the judiciary is not to bring liberation to oppressed minorities, or to decide whether a law is good or bad — only whether the process leading to its enactment was carried out properly. Judges are not super-legislatures one gets to go to if he doesn’t get what he wants from the real one. They are not there to enact visions of universal justice or to pick up the pieces of what the legislature or the citizenry didn’t get right. It is there merely to decide whether everything is properly in accord with existing statutes. In other words: ‘constitutional’ is not a synonym for ‘good.’

The judge — who is gay and should have recused himself — justified his ruling in part by noting that no “demonstrated harm as a result” of same-sex marriage could be shown, which could have made blocking it justified. This is undoubtedly true but also astonishingly irrelevant. The law could conceivably require that everyone wear a wizard’s hat every Saturday at 6 PM; the point is not that it is “good” or can be demonstrated to be “harmful,” but whether it violates any existing protections.

The more serious argument, then, is that Proposition 8 violates the equal protection clause of the 14th Amendment — which has been abused to justify everything from affirmative action to tax increases. The judge wrote that “gender no longer forms an essential part of marriage” and that it is not a component of it that can be taken into account when defining it under the law. I happen to agree with him, but that’s something to tell to a legislature or the citizenry, not to a judge, who is there only to decide whether everything is being enacted according to an enumerated process. Californians are entitled to decide for themselves what’s essential to marriage.

And that’s what’s at the bottom of this: justice, properly understood, is a process, not a result. The law is not there to bend and bash until you get what you want from it. In a free and ordered society, we simply have to resign ourselves to the fact that the legislature is sometimes wrong and that the culture is sometimes a bit off. If your interpretation of the Constitution just so happens to align with all of your political views, you’re probably interpreting it wrongly. I want to see same-sex marriage enacted in the United States. But I want it to be done lawfully and orderly, not by judges who think it’s their job to save the world rather than to follow the law.

Recent Posts by Alex Knepper



119 Comments so far ↓

  • JimBob

    “Second, states may not violate the right to marry by redefining matrimony however they like. One way that states can violate the right to marry, as Loving recognized, is to criminalize certain categories of marriage. Surely another way that states can violate the right to marry is to redefine marriage out of existence. For example, if a state supreme court or legislature stipulated that “marriage in this state shall only be between an adult and his or her pet,” that state would effectively prevent people from getting married. Marriage, after all, has an essential nature, which states cannot ignore without doing away with the institution altogether.

    Even gay-marriage proponents implicitly recognize that states may not redefine marriage out of existence. Homosexual activists would not be satisfied, after all, if states redefined marriage as “between one entity and another entity.” Under such a regime, one man could “marry” another man. But so too could one hermit crab “marry” another hermit crab (or a goldfish or a fire hydrant, for that matter). Gays in that case would not benefit from the elevated social and moral status that they hope to obtain by having the government recognize their relationships as “marriages.””

    http://www.amconmag.com/article/2005/jan/31/00013/

  • busboy33

    Just to pile on behind easton . . .

    Findings of Fact:
    . . .
    #21. California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.
    a. Cal Fam Code § 300 et seq;
    b. In re Marriage Cases, 183 P3d 384, 431 (Cal 2008) (“This contention [that marriage is limited to opposite-sex couples because only a man and a woman can produce children biologically related to both] is fundamentally flawed[.]”);
    c. Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”);
    d. Tr 222:22-223:22 (Cott: “There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry. * * *[P]rocreative ability has never been a qualification for marriage.”).

    Perry, p.60-61

  • busboy33

    “Second, states may not violate the right to marry by redefining matrimony however they like.”

    So . . . it IS a State’s right issue, or it isn’t?

    Try picking one position and sticking with it for more than 5 minutes — you might get farther.

  • easton

    here is a contrary position from TNR regarding the politics:
    With news breaking this afternoon that Prop 8 (an amendment to California’s constitution banning gay marriage) has been overturned in a federal court, Citizen Cohn reached out to Gordon Silverstein, assistant professor of political science at the University of California-Berkeley, for his take on the ruling. Silverstein is an expert in constitutional law and American politics and the author of Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics. While a proponent of the ruling, Silverstein speculates on how it might play in the Supreme Court and says today’s verdict could undermine the policy goals of the gay-rights movement in the long term:

    Judge Vaughn [R. Walker] is probably right, but by drawing the sharpest possible line in the sand, his principled decision might possibly prove to be a moral victory but one that could undercut the deeper social policy goals advocates had in mind in pushing this forward as a legal and constitutional case.

    Walker took the strongest line imaginable—Prop 8, he said, can’t even pass the lowest, least demanding constitutional test there is for any sorts of rules that discriminate: The Rational Basis test. If you can show even the barest rational justification for a law, you can survive this test. Prop 8, Walker ruled, fails.

    This means, of course, that if you measure it against the far tougher standard that is typically applied in cases involving suspect classification (like race, or religion) it would, of course, fail miserably.

    This ruling, though, leaves the Supreme Court little wiggle room. Yes, they could of course agree with Walker, and strike down Prop 8—along the way fundamentally raising the barrier to any rules that might adversely affect homosexuals or same-sex couples. They could do that—but hard to believe they will.

    At the other extreme, Walker’s line-in-the-sand invites the Supreme Court to make a clear statement, to draw their own line, which would formally and explicitly carve out areas where such discrimination would in fact be constitutional. And by opening the door for such a ruling, those who brought this case to Walker’s court in the first place may live to regret that choice.

    The alternative, of course, is politics. Change minds. Elect candidates. The original Prop 8 passed in large measure because so many Californians who did not favor Prop 8 failed to participate, failed to vote. A political campaign is the sort of thing that can persuade and change minds—and that is, in the long run, the only way to truly lock in change. Judicial rulings can change behavior, but not minds. At least not by themselves.

    An adverse ruling from the Supreme Court would only make it that much harder to effect change through political channels.

    Walker might well say that his job is to read the constitution. Period. And he’s right, as was his decision, I think. But Walker didn’t force gay marriage advocates to bring this case—that was their choice. They will probably savor their moral and constitutional victory in the short term, but may regret it down the road.

    This case is a stark reminder of a harsh choice that rights advocates often have to make: Is it right to sacrifice moral and constitutional claims in the short term to achieve long-term policy goals? Or, insist on the moral high ground, regardless of the practical costs?

    Could be, though, that Walker has drawn his line so starkly that even the Roberts Court will be persuaded. Could be. But not likely.

  • Telly Davidson

    Ordinarily I’d agree with you, Sir Alex, but having lived all of my life in California, the citizen-initiative process has become such an abused pinata (I have an article to that effect coming out later) for getting-what-you-want and patently ridiculous laws, where else but the courts can people go to restore civil liberties, much less sanity?

    Besides the much-maligned (and in my opinion, relatively benign) Prop 13, our citizen-initiative process has given us:

    The “Gann Initiative” of 1979 — requiring balanced budgets even in recession/depressions, complete with massive tax increases and/or draconian cuts to education and police, and outlawing a “rainy day” reserve fund in surplus years….. their sequels in 1988 and 1990 which gave half of all surplus to pre-college schools with no performance guarantees…. Prop 187, which was immediately struck down in federal court and guaranteed non-stop Democratic victories (exc for Schwarzo, if you can call him a Republican “victory”) since 1994… various and sundry issues that turn “civil rights” for the mentally ill and for animals on and off like a light switch…. and best of all, the Impeachment Recall circus, where the late Gary Coleman and a top porn star were on the ballot for Governor.

    Prop 8, and its parent, the odious Prop 22 (Knight Initiative), were not even the results of the usual democratic legislature/executive process, but direct-to-ballot initiatives written by hate groups for the express purpose of denying civil rights and promoting ‘phobia — AFTER it became clear that the (liberal) CA Legislature, and Governors Davis and Schwarzenegger would never sign a “defence of marriage” law themselves.

    Celebrate Judge Walker’s ruling with no guilt, Alex. He didn’t abuse process — they did. :-)

  • Alex Knepper

    “Ordinarily I’d agree with you, Sir Alex, but having lived all of my life in California, the citizen-initiative process has become such an abused pinata (I have an article to that effect coming out later) for getting-what-you-want and patently ridiculous laws, where else but the courts can people go to restore civil liberties, much less sanity?”

    Your complaint is with the process. You don’t get to go to a judge to overturn the results of the process just because you don’t like the process. The judge’s job is that of an umpire: to see that the process was carried through without incident.

    I agree with you on the merits: I hate referendums and initiatives. But they are what they are, unfortunately.

  • Telly Davidson

    Alex says: “Your complaint is with the process. You don’t get to go to a judge to overturn the results of the process just because you don’t like the process.”

    Unfortunately, though — thanks to the peculiarities of CA law, the Legislature and the Governor are not ALLOWED to overturn bad “ballot box legislating” — in CA, thanks to their (circa 1911) reform charter, most ballot initiatives go directly to our Internet-size Constitution — only a strikedown in civil rights court can get rid of this sh*t — or a re-referendum/repeal on the ballot.

    If you want a real Harvey Kneeslapper, according to that same 1911-era Constitution, the Governor relinquishes his direct executive power the second he leaves CA state, except with regards to negotiating contracts/treaties. Mike Curb, the outspoken Lt. Governor in the late ’70s, would even appoint bureaucrats and judges when Jerry Brown was off on his desultory 1980 bid to defeat Carter for the nomination, much to Brown’s fury. Even in the age of Skype, cell phones, and Twitter, that law is still technically on the books(!)

    If we ever have a CA Constitutional Convention, I’ll be looking for your wise counsel (esp if you could say /something/ nice about non-fundy Christian moderates and observant Jews..) (A “you guys drive nice cars” would suffice….) :-)

  • Rabiner

    Alex:

    “Your complaint is with the process. You don’t get to go to a judge to overturn the results of the process just because you don’t like the process. The judge’s job is that of an umpire: to see that the process was carried through without incident.”

    No. A judges role is to write the rules of the proceedings in addition to balls and strikes (to maintain your baseball reference). As was written in the decision “civil rights do not come up for a vote”. Elections cannot take away civil rights of minorities regardless of the popularity of such measures.

  • Alex Knepper

    “A judges role is to write the rules of the proceedings ”

    …No! No it isn’t! Oh, my God. Civics 101, please!

    “As was written in the decision “civil rights do not come up for a vote”. Elections cannot take away civil rights of minorities regardless of the popularity of such measures.”

    Sure they do. Maybe they shouldn’t, but in our system, yes, they sure do. What, was the Civil Rights Act of 1964 not voted on?

  • Watusie

    SRSLY, Alex? The Civil Rights Act of 1964 did not establish or bestow any civil rights – it provided the enforcement mechanisms to prevent people from having their constitutional rights denied.

    How can you not know that?

  • Sinan

    The courts are the sole interpreter of the Constitution. There is no other avenue for determining what is or is not constitutional. In some cases, they get it massively wrong as in Dred Scott. In other cases, they get it perfectly right. The long line of history of our nation and the Western World is for more freedom, more rights and more justice before the law. The recent ruling in California proves that our system works as intended and practiced for two centuries. States cannot interpret the constitution individually, that was decided in the first 50 years of our nations beginning. Thank God we had John Marshall as our Chief Justice or the Civil War would have started in the 1820s or 30s…

  • Rabiner

    Alex:

    “…No! No it isn’t! Oh, my God. Civics 101, please!”

    Sorry, but actually I am correct on this matter. As Watusie mentions, the Civil Rights Act of 1964 provides enforcement mechanisms and states what constitutes such rights. And it wasn’t voted on by direct democracy as was the case for Prop 8.

    The courts role is to be the arbiter of what is and what isn’t Constitutional. Codifying discrimination is unconstitutional even if it is a ‘morality code’ that causes the majority of the population to believe in that discrimination. The law is expected to be at a higher standard of not infringing on the rights of the minority to make the majority ‘feel better’ without a public interest in doing so. The ruling by Judge Walker was that the defendants failed to even meet the lowest standard of proof that there is a public interest in preventing gay marriage from being legal.

  • busboy33

    Boy, I have to go take civics 101 again.

    All I remember was something about “inalienable rights”. I must have been asleep during the whole “of course in America 50.1% of the citizens can vote away people’s rights.”

    On the plus side, I guess now we know why the Far Right is so convinced Obama is going to establish Death Camps . . . they apparently assume that once you get majority power its time to start hunting your enemies. America — what a country!

    Seriously Alex — sure you don’t want to reconsider such a patently rediculous notion? Fob it off on “sloppy writing” or whatever you like. If you don’t trust all the bleeding hearts here in the comments why don’t you go ask Mr. Frum what he thinks about your “Land of the Majority, Home of the Mob” idea.

  • DeepSouthPopulist

    “The judge — who is gay and should have recused himself — justified his ruling in part by noting that no “demonstrated harm as a result” of same-sex marriage could be shown, which could have made blocking it justifies”

    So the judge himself is gay?

    Figures the mainstream media would omit that detail.

  • busboy33

    @DSP:

    Allegedly gay. Not married. Neither confirmed or denied, although as soon as the decision came down the Right started yelling about “the Homosexual agenda”. Odd nobody thought to bring that up at the start of the case if it was such an issue for the Defendents (assuming it to be true).

    Is that relevant? Let’s assume that he IS gay — so what?

    His analysis is still pretty clear. If you were assured with 100% certainty that he was hetrosexual, would you agree with the decision any more?

  • RickRollington

    If Justice Walker should have recused himself because he’s gay, then I guess a heterosexual judge would *also* have to recuse themselves, no?

    I guess Thurgood Marshall should have recused himself from any civil rights trials when he was on the Supreme Court, too. And Sandra Day O’Connor should have from any case pertaining to sexual harassment.

    You right-wing nuts with your demands for ideological purity need your damned heads examined.

  • RickRollington

    Also worth noting – the original case that prompted Prop. 8 in the first place was adjudicated by a heterosexual, Republican-dominated court, with its majority opinion written by a heterosexual Republican male.

    Civil rights are guaranteed by the Constitution, and the rights of a widely-vilified minority should never be subjected to the whims of majority voting.

  • Nanotek

    “The judge — who is gay and should have recused himself — justified his ruling in part by noting that no “demonstrated harm as a result” of same-sex marriage could be shown, which could have made blocking it justified.”

    a) HUH?? Then why wouldn’t a straight judge have to recuse herself equally?
    b) the evidence — as opposed to baseless claims — was that marriage equality demonstrated no harm and that the children of gay couples were as healthy as those of straight couples — a court takes evidence to make a decision based on fact

  • CitizenWhig

    Alex, Alex, Alex . . .

    I don’t like to repeat what others here have already said, but after reading your post, it bears being said again.

    You are wrong. And I say this as soberly and dispassionately as I can. You’re being dumb and you are sorely misinformed. You have read Chief Justice Robert’s confirmation hearing transcripts one too many times and it has incapacitated the part of your brain that deals with legal reasoning.

    I freely admit that before this decision came down, and having not read any of the legal arguments presented in this case, I couldn’t fathom how the Prop 8 Referendum could be struck down. As a matter of course, I don’t study constitutional law on a regular basis. I have more practical issues to deal with in my work. After reading the Judge’s opinion however, I can only say – Bravo!

    It’s not a reach at all and is very soundly reasoned. I always thought of this issue as having to be viewed through the lens of a protected class. But the approach is rather brilliant. Viewing marriage as a fundamental right. It works beautifully and does not have the overreaching trappings of other, far more accepted court opinions. As to your comments:

    “In an ordered society, the job of the judiciary is not to bring liberation to oppressed minorities, or to decide whether a law is good or bad — only whether the process leading to its enactment was carried out properly.” I can’t believe you actually wrote this. This is so brazenly, pathetically wrong that it forced me to question your intellect, and I for one have enjoyed most of your posts (whether I agreed or not) and thought you showed promise. The application of constitutional law goes far beyond the examination of the process by which laws are enacted. Intrinsic to the concept of judicial review is the premise that laws themselves, no matter the legitimacy by which they may have been created, may be stricken if in violation of the Constitution.

    “The judge — who is gay and should have recused himself.” Really? You’re going to take that approach? The banality of this statement has already been clearly expressed by other posters. I hope you can objectively re-evaluate this post with a critical eye.

    I apologize for the use of the words “stupid,” “dumb” and for taking such a patronizing tone, however, I feel it was warranted. You’re clearly not a stupid person, but the justifications underlying your criticism of this decision are amazingly simple-minded. Reading your post left me disappointed.