Prop 8 Feedback

Got the following from reader PietB. I'm going to come back and comment on it, and really should have posted it before now (my bad). Piet's remarks seem to be right on point, and I think I may agree with him -- even though it means I may have been wrong in my previous comments. Well, it happens. (And unlike many, I'll admit it.)

The argument that was supposed to be being considered in this case was whether Prop. 8 was an amendment or a revision, not whether it pertained to a definition. The majority opinion stated and re-stated that the decision only restricted the word marriage to male-female couples, but in fact that assertion is the only way the opinion could be said to be doing that because nowhere in the reasoning did the Chief Justice actually discuss whether they were talking about a defining restriction, and the case wasn't about that. An amendment to the California Constitution is supposed to be about something like restricting the perch catch in the Delta in alternate months; a revision is used when a fundamental organizing principle of government is involved. If the Justices had actually been reasoning around that difference, they would have had to find that Prop. 8 was a revision because it does fundamentally change the way the State government operates by placing a restriction on the activities of the Justices of the Peace and County governments in general as to who may or may not receive a marriage license. In In re Marriage Cases, the Court properly found that the Constitution guarantees equal rights in all things to all State residents. The Court in that case made law by interpretation of the Constitution, which is what the Court is supposed to do.

In Strauss, the Court was supposed to be deciding the validity of the Proposition, not defining or re-defining the word "marriage". They assert that they are narrowly defining "marriage" in their decision, but in fact that wasn't presented for their deliberations. Nowhere do they substantively discuss the governmental effects of Proposition 8. And the wording of the proposition itself does not lead to considering it as a definition amendment; what it says is the only a marriage between a man and a woman is valid and recognized. It doesn't say, "but a civil union between two adults of the same sex is valid and recognized", and it doesn't present any remedy for the discrimination implicit in the ballot language. Kenneth Starr of evil memory argued for the proponents of Prop. 8 and an oilier performance I never have seen in a court of law. Under questioning, he cheerfully agreed that Prop. 8 set up two classes of citizens, but declined to agree that setting up two classes of citizens would affect how the government did its business. Justice Kennard, whose judicial history seemed to point to better sense than she displayed, insisted in her line of questioning that if a proposition were going to substantially affect how the government works it must have a quantity of language in direct proportion to the amount of effect, and implied that Prop. 8's few words (only fourteen) meant it had little effect. I sat down and wrote out several highly discriminatory ballot propositions that would have profoundly affected the way government works but had even fewer words that Prop. 8. The one restricting the vote to white male property owners had twelve words, two fewer than Prop. 8 but of course with much more profound effect on how the government would operate.

The "logic" in the opinions (both the majority opinion and the two concurring opinions) was so strained that I thought someone must surely have developed a hernia. When I say "shame on the Court", it's not because of the decision itself, it's for the intellectual dishonesty displayed in the opinions. The only one who seems to have considered the actual cause of the suit was the dissenter, Justice Moreno. Two of the Justices are up for re-election next year; if they have any personal integrity they won't run, but if they do I intend to work to remove them from the bench. I've spent all but six months of my life as a second-class citizen and I'm sick and tired of it.

As I say, I'll have to come back to this -- on deadline for music reviews (and be sure to check out the June 14 edition of Green Man Review -- major piece on Mahler coming up) and I really want to get this stuff off my desk.