"Joy and pleasure are as real as pain and sorrow and one must learn what they have to teach. . . ." -- Sean Russell, from Gatherer of Clouds

"If you're not having fun, you're not doing it right." -- Helyn D. Goldenberg

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“If I hear ‘not allowed’ much oftener,” said Sam, “I’m going to get angry.” -- J.R.R. Tolkien, from Lord of the Rings

Saturday, May 30, 2009

Prop 8: The Fallout

Andrew Sullivan's first post on this immediately got my hackles up.

It would have been dreadful if voters were retroactively told their valid vote was somehow null and void - it would have felt like a bait and switch and provoked a horrible backlash.

What part of "limited sovereignty of the people" do you not understand? That has always been an intrinsic part of the process of this republic, from the time the Constitution was adopted. Sullivan twists the comment by prima facie naming the vote "valid." In spite of the Court's ruling, there are serious questions as to whether the rights of a minority can be granted or revoked by a plebiscite, and most legal scholars are going to tell you "No." This is Sullivan buying into the hypocrisy of the radical right in the face of legality and of history. (Does anyone remember any of the anti-gay groups, when the first Arizona amendment was defeated, saying "Oh, well, the people have spoken. Time to pack up." Don't hold your breath waiting for that reaction when they lose.) The fact that the Court chose to make the narrowest possible interpretation of the language of Proposition 8 should be a clue that this is a political decision, not a legal decision, and that the politics involved are not of the grand, broad, theoretical kind that Sullivan seems able to deal with.

Andrew Koppelman has a much more intelligent take on the decision

The bottom line is that sexual orientation remains a suspect classification in California. Same-sex couples can’t be disadvantaged in any tangible way without a compelling reason. And a constitutional amendment that restricted their rights more than Proposition 8 did might – the Court won’t say – be invalid. Not a good day for same-sex couples, but hardly a disaster.

If the Court found it political inexpedient to overturn the Proposition, Koppelman's comments seem the best on-the-spot analysis: cut the effect to the bone and let it stand. (I don't think it's outside the realm of possibility that the justices were happy to hear about a federal case in the offing -- that moots the whole thing.)

Eugene Volokh has a persuasive comment on the amendment vs. revision question, and the mechanics of what happened:

In any event, what makes those provisions wrong is not that they are legally "revisions" rather than "amendments" and thus illegal. What makes them wrong is that they are morally wrong and thus immoral. But ultimately that judgment about what is morally wrong, as I mentioned, is under the California Constitution left to the sovereign people, and not the sovereign's servants in the state supreme court.

Dale Carpenter's comment is also worth reading.

There's plenty of ground to question the decision in Marriage Cases, and to support today's decision in Strauss as correct on the revision/amendment distinction. And I think the protections provided to gay families under the rubric of "civil unions" or California "domestic partnerships" are a huge advance that can't fairly be likened to a new form of segregation. But it seems to me that, given the rationale and rhetoric of the first decision, the court disingenuously minimized the deprivation in the second.

I have to go along with this -- on the strict, limited grounds that the Court chose, I think they were right, but it's worth pointing out, I think, that this decision in no way closes the issue -- it just punts, and leaves a major hole in place. See Timothy Kincaid's analysis, which it pretty much the way I feel about it -- except I see it as a major vulnerability to the decision in Strauss standing for any length of time.

Via Autumn Sandeen has put together a link dump of reactions -- looks like no one's happy.

As for the central question -- rights granted/revoked by plebiscite, the federal case filed by Ted Olson and David Boies should be clue enough that there are substantial questions here.

My initial reaction echoes that of Dale Carpenter:

As for the timing of the suit, Olson said that recent decisions by the U.S. Supreme Court “make it clear that individuals are entitled to be treated equally under the Constitution. I’m reasonably confident that this is the right time for these [injustices] to be vindicated.”

I doubt Olson is right about the timing, but no doubt this ups the ante on any future Supreme Court vacancies for Obama. (There's already a challenge to the federal DOMA in the First Circuit.)

Of course, by the time this case gets to the Supreme Court, who knows who will be listening to the arguments? (Although I doubt that Obama will feel any particular pressure on gay issues from this case.) It's rather sad, actually, that the Supreme Court is in such a state that we can no longer count on it to defend basic civil rights. That's what we get for "up or down votes."

Pam Spaulding has a fairly complete post on this, with a very interesting communication from a law professor that points out something that may torpedo the federal suit right off the bat: there is a ruling precedent that precludes the court from hearing suits of this nature.

There's more to come on this -- especially some comments on the reaction of the national gay rights organizations to the federal suit -- but I have to run off and do something with a time limit on it right now.

Later. . . .

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