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From the California Supreme Court's Prop. 8 Decision:

Strikes me as exactly right:

[N]o authority supports the Attorney General's claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates "inalienable." The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years, and, in any event, no decision suggests that when a constitution has been explicitly amended to modify a constitutional right (including a right identified in the Constitution as "inalienable"), the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary. Although the amending provisions of a constitution can expressly place some subjects or portions of the constitution off-limits to the amending process — as already noted, some state constitutions contain just such explicit limits — the California Constitution contains no such restraints. This court would radically depart from the well-established limits of the judicial function were it to engraft such a restriction onto the Constitution in the absence of an explicit constitutional provision limiting the amendment power....

In a sense, petitioners' and the Attorney General's complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it. If the process for amending the Constitution is to be restricted — perhaps in the manner it was explicitly limited in an earlier version of our state Constitution, or as limited in the present-day constitutions of some of our sister states — this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.

The California Supreme Court justified its earlier decision recognizing same-sex marriages by reference to the California Constitution, which in turns draws its authority from having been enacted by the people. Whether that decision was or wasn't a sound interpretation of the California Constitution, an interpretation of the California Constitution is what it purported to be.

The constitutional provisions that the people enacted the people may likewise lawfully amend. Perhaps the amendment may be morally wrong, but it is legally authoritative (unless it violates some superior legal rule, such as the U.S. Constitution, but recall that the debate in this case has been about rights supposedly secured by the California Constitution).

More on the amendment/revision question, I hope, as I read further.

non-native speaker:
Moreno, J., dissenting, at footnote 1:


I also agree with the majority opinion that Proposition 8 does not entirely repeal or abrogate a same-sex couple's substantive state constitutional right to marry as set forth in the Marriage Cases, but rather carves out an exception by "reserving the official designation of the term 'marriage' for the union of opposite-sex couples."


What does it mean to have the "right to marry" if the result is not called a "marriage"?
5.26.2009 2:27pm
Ben Boychuk (mail) (www):

"The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years..."


It has? Somebody had better inform Hadley Arkes, Robert George, and Justice Thomas, among others. But more audacious than the court's bare assertion here is the attorney general's effort to use a natural law argument to make the case for homosexual marriage.
5.26.2009 2:27pm
rosetta's stones:
I'm sorta torn here. I don't know whether to be pleased with the court's editorial about California's out of control initiative process, or outraged that they're arrogantly instructing California what should be done about it.

So I'm pleasedly outraged.
5.26.2009 2:29pm
ThreeOneFive (mail):
This should be a huge victory for conservatives; voters got what they wanted. What's the problem?
5.26.2009 2:32pm
ShelbyC:

I'm sorta torn here. I don't know whether to be pleased with the court's editorial about California's out of control initiative process, or outraged that they're arrogantly instructing California what should be done about it.


Well, amending the initiave process is going to be problematic while prop 8's still around.
5.26.2009 2:33pm
Pyrrho:
Eugene:

Your basic point is an interesting one. Have you read Mark Graber's "Dred Scott and the Problem of Constitutional Evil"? It presents a lot of interesting points about the situation in which a Constitution may command a morally incorrect conclusion but is nonetheless authoritative. Such is the nature of popular government, though. A court is poorly positioned to stop people if they are determined to make the wrong decision.

I'm not making a moral judgment about Proposition 8 specifically, but I think the post, as framed, raises these issues.
5.26.2009 2:34pm
Gabriel McCall (mail):
I wouldn't be so quick to dismiss the issue of violating a superior legal rule. It seems like there is definitely a conflict between Prop 8, "Only marriage between a man and a woman is valid or recognized in California", and the Full Faith and Credit Clause.
5.26.2009 2:35pm
Thales (mail) (www):
"But more audacious than the court's bare assertion here is the attorney general's effort to use a natural law argument to make the case for homosexual marriage."

Not particularly audacious, in the Lockean conception of natural law; it may be in the older Thomist one. Of course this illustrates precisely the problem of attempting to apply the alleged law of nature inside the framework of the very human institution of positive law.
5.26.2009 2:35pm
George97:

I wouldn't be so quick to dismiss the issue of violating a superior legal rule. It seems like there is definitely a conflict between Prop 8, "Only marriage between a man and a woman is valid or recognized in California", and the Full Faith and Credit Clause.


Full Faith and Credit does not permit one State to create national policy, or to override the public policy of other States. (Nevada v. Hall).

The FF&C Clause specifically allows Congress to regulate. Congress has done so with DOMA.
5.26.2009 2:37pm
U.Va. Grad:
What does it mean to have the "right to marry" if the result is not called a "marriage"?

According to the majority opinion, it effectively means that homosexuals have access to every single legal right and responsibility attached to heterosexual marriage except the word "marriage" itself. (I.e., whatever CA's domestic partnership statute didn't already provide for that CA's marriage statute does.)
5.26.2009 2:42pm
Cityduck (mail):
18K gay marriages have been ruled valid. It is now only a matter of time before the voters pass an initiative to allow all gays to have equal treatment. After all, the notion that gay marriage is some sort of social evil will be amply refuted by the fact that the world doesn't come to an end with 18K gay married couples in the state. This battle in the culture wars was not decisive for anyone, and will likely be viewed in retrospect as helpful to the gay marriage movement both as a victory for existing couples and as a political mobilizer.
5.26.2009 2:42pm
Gerry Mander (mail):
I'm sorta torn here. I don't know whether to be pleased with the court's editorial about California's out of control initiative process



Yeah, 'cause that gerrymandered state legislature full of professional politicians is working out so well.
5.26.2009 2:42pm
sureyoubet:
So what are the odds that those who asserted in this case that the amendment process is just too easy, will be the loudest opposition to changing that process now.

They now need the liberal amendment rules to overrule Prop. 8 at the ballot box before they slam the door shut on further amendments.
5.26.2009 2:43pm
Cleland:
Gabriel McCall
I wouldn't be so quick to dismiss the issue of violating a superior legal rule.


Nobody's dismissing it here; it just wasn't raised in the case.
5.26.2009 2:50pm
einhverfr (mail) (www):
ThreeOneFive:

This should be a huge victory for conservatives; voters got what they wanted. What's the problem?


Sure, and when the Constitution is amended to repeal Prop 8, then the voters will also get what they wanted. No problem there either, right?
5.26.2009 2:54pm
cmr:
One point I wish people would make is that there is no such thing as "couple's rights". We all have an individual right to marry someone of the opposite sex (in most places). The importance of this is simple: under existing marriage law, gay and lesbian individuals have just as much right to enter into a marriage as heterosexuals. They're not being threatened or penalized by getting married to someone of the opposite sex, and CA has bent over backwards to accommodate them.
5.26.2009 2:58pm
NickM (mail) (www):

Sure, and when the Constitution is amended to repeal Prop 8, then the voters will also get what they wanted. No problem there either, right?


I'd say "if", not "when", but yes.

Nick
5.26.2009 3:04pm
krs:
This was probably the worst argument made on either side. I look forward to reading the opinion. I'm not sure how I feel about the result, but this may be a good teaching point to many educated lay people about the nature of democracy, federalism and separation of powers.
5.26.2009 3:05pm
krs:
I don't know about if vs. when, but I otherwise agree with NickM.
5.26.2009 3:06pm
ShelbyC:

What does it mean to have the "right to marry" if the result is not called a "marriage"?


I'll reiterate a point I made the other day. Folks place way to much emphasis on the government's charactarization of the relationship. If gay folks want to get married, they should get married. And call it a marriage. And if the govt gets it wrong, f**k 'em.
5.26.2009 3:07pm
Desiderius:
"But more audacious than the court's bare assertion here is the attorney general's effort to use a natural law argument to make the case for homosexual marriage."

Natural law jurisprudence: it's not just for evil Christers any more.
5.26.2009 3:08pm
Splunge:
I would say it's a victory for conservatives, in that it helps preserve that (now thin) distinction between a republic and a pure democracy, the rule by the whim of the mob, which the Founders were at such pains to avoid.

No one who thinks California's initiative process is "out of control" should be in the SSM Right Now! camp, unless the logic fuse in his head is blown. California's initiative process is exactly what you get when you feel it's more important to Make Things Right Right Now than to feel your way forward cautiously, with anxious regard for the Law of Unintended Consequences.

But I doubt that's the way any of the legions of such folks will see it. Instead, they'll argue that what we really need is plenary power now, to enact the One True And Good set of laws, and, once they're safely in place, to lock the system down good and tight so that no clueless delusional mob of a temporary future majority can alter their pristine goodness.

Why such egoistical intellectual imperialism (not to mention spectacular absence of logical consistency) should be so popular these days is a mystery to me. I blame high-fructose corn syrup.
5.26.2009 3:13pm
ChrisTS (mail):
Splunge: I blame high-fructose corn syrup.

Don't you mean you blame same-sex marriage?
5.26.2009 3:42pm
Robert West (mail) (www):
What does it mean to have the "right to marry" if the result is not called a "marriage"?

That's the $100,000 question in California today.

If gay folks want to get married, they should get married. And call it a marriage. And if the govt gets it wrong, f**k 'em.

The court decision seems to say that the government has to recognize these marriages and treat them identically to "marriages" while calling them something different.

Not, I expect, what the proponents of Proposition 8 intended.
5.26.2009 3:43pm
Stephen Clark (mail):
I find it amusing that Eugene would rather rip Jerry Brown's straw man to shreds than offer a persuasive defense of the amendment/revision question--the one that wasn't frivolous and actually divided the court.
5.26.2009 3:44pm
Perseus (mail):
Not particularly audacious, in the Lockean conception of natural law;

It's still audacious even for Lockean natural law.
5.26.2009 3:53pm
Thales (mail) (www):
"It's still audacious even for Lockean natural law."

I don't really think so. Free and equal liberty for gays and straights alike to marry whom they wish, which liberty cannot be abrogated by a social compact (such as the California constitution), is a straightforward application of Locke's theory of natural rights. What's the Lockean argument *against* gay marriage? That Locke did not himself consistently apply his own theory (e.g. in his views on slavery, his failure to extend religious toleration to atheists) is no argument against the theory.
5.26.2009 4:00pm
geokstr (mail):

Robert West:
The court decision seems to say that the government has to recognize these marriages and treat them identically to "marriages" while calling them something different.

Not, I expect, what the proponents of Proposition 8 intended.

I predicted a while ago that the court would not be happy with those "people" creatures not agreeing with their infinite wisdom.

IINAL, but from what I gather from these posts and comments, the justices did the minimum they had to to protect themselves from recall petitions while giving SSM proponents everything they wanted except the word "marriage". What happens if CA residents now go to another state or Canada and get married? Is CA required to honor those as marriages like the initial 18K? If so, all that will have happened is that this ruling made it more inconvenient for SSM.
5.26.2009 4:10pm
cmr:

Why such egoistical intellectual imperialism (not to mention spectacular absence of logical consistency) should be so popular these days is a mystery to me. I blame high-fructose corn syrup.


I blame HuffPo and DailyKos.

Otherwise, I agree.
5.26.2009 4:11pm
Harold1995:

I find it amusing that Eugene would rather rip Jerry Brown's straw man to shreds than offer a persuasive defense of the amendment/revision question--the one that wasn't frivolous and actually divided the court.


LOL! Divided the Court 6-1.
5.26.2009 4:20pm
keypusher64 (mail):
I would say it's a victory for conservatives, in that it helps preserve that (now thin) distinction between a republic and a pure democracy, the rule by the whim of the mob, which the Founders were at such pains to avoid.

Splunge

I don't understand this comment. The decision of a constitutional court (a republican institution(?)) was overturned by a popular vote (the whim of the mob). So isn't this decision a victory for mob rule?
5.26.2009 4:28pm
cmr:
Intrinsic to a mob is their minority status. The people who voted against gay marriage had the majority, thus, they can't be a mob.

The tolerance bullies who vandalize churches and call gay black people the N-word are who you're searching for with that term.
5.26.2009 4:34pm
A. Zarkov (mail):
"What does it mean to have the "right to marry" if the result is not called a "marriage"?"

Look to how the dissolution get done. If one is in a "marriage" then you go to a Family Law Court. Being in a marriage also subjects one to a plethora of obligations that few people know about until they get divorced. Your obligations can change according to the future whims of the legislature. On the other hand, civil unions carry fewer burdens.

Many gays should be thankful they can't get thrown into the brier patch of marriage. But unfortunately for them, too few have figured this out yet.
5.26.2009 4:59pm
Perseus (mail):
What's the Lockean argument *against* gay marriage?

As a matter of natural law:

"Adultery, Incest and Sodomy...cross the main intention of Nature, which willeth the increase of Mankind, and the continuation of the Species in the highest perfection, and the distinction of Families..."
"Conjugal Society is made by a voluntary Compact between Man and Woman; and tho' it consist chiefly in such a Communion and Right in one anothers Bodies, as is necessary to its chief End, Procreation..."

As a matter of civil law, Locke grants that just as in regulating property in civil society, the sovereign has a wide discretion in regulating the civil marriage. For example, positive law may require that marriages be perpetual even though nature does not (his various diary notes include examples of his support for even more extensive and intrusive regulation of marriage).

So it's very difficult for me to believe that Lockean natural law would somehow demand SSM.
5.26.2009 5:20pm
Putting Two and Two...:

Well, amending the initiave process is going to be problematic while prop 8's still around.


I fully expect the Yes-on-8 forces to be hitting the pavement in a matter of days, gathering signatures to "fix" California's broken initiative process, no doubt with substantial funds from SLC...
5.26.2009 5:35pm
Thales (mail) (www):
Perseus--I'm assuming you're quoting from somewhere in the Locke corpus. If so, nonetheless these assertions seem to plainly contradict Locke's overall worldview regarding natural law and free enjoyment of an individual's life, liberty and property, and in any case offer no arguments other than an unsupported duty to procreate (to whose end?) I'd chalk it up to internal inconsistency. (Of course, one could note that Adultery could certainly result in the increase of the species, perhaps more so than closed marriage to an infertile or infecund spouse).
5.26.2009 6:20pm
Andy Freeman (mail):
> I fully expect the Yes-on-8 forces to be hitting the pavement in a matter of days, gathering signatures to "fix" California's broken initiative process, no doubt with substantial funds from SLC...

And when they do nothing of the sort, you'll be the first to acknowledge that you were wrong.....
5.26.2009 6:23pm
Perseus (mail):
I'm assuming you're quoting from somewhere in the Locke corpus. I, Par. 59; II, Par. 78, 81.

As for Locke's overall worldview, you cannot distill it to Nozickian libertarianism. Locke retains a much stripped-down version of teleological nature. His Atlantis diary notes on marriage and other subjects are his best case policy prescriptions, so there is very little reason for him to be inconsistent, unlike in actual political life where pure consistency is difficult (e.g., his constitutions for Carolina). Overall, his prescriptions seem utilitarian, so changing circumstances might cause him to advocate different policies, but the key thing is that he does not characterize the choice of partners in terms of rights because he views civil marriage in largely "communitarian" terms.

(His argument against adultery is that reduces the likelihood that the offspring will be properly supported and reared. In his Atlantis diary notes, Locke suggests that "in case of barrenness he [the husband] shall pay her [the wife] back her dowry").
5.26.2009 8:00pm
Desiderius:
cmr,

"I blame HuffPo and DailyKos.

Otherwise, I agree."

Throw in Rush and O'Reilly and I think you're on to something.

Although high fructose corn syrup is still likely the primary cause. That and the Self-Esteem Movement.
5.26.2009 10:01pm
Putting Two and Two...:

i'd say that the argument rests on reading prop 8 to apply to the word 'marriage'


Well... yes and no. The 18,000 marriages get to keep the word, too.

Odd decision. Odd.
5.26.2009 10:58pm
Stephen Clark (mail):

Intrinsic to a mob is their minority status. The people who voted against gay marriage had the majority, thus, they can't be a mob.


mob n. 1. A large disorderly crowd or throng. 2. The mass of common people; the populace.... (American Heritage Dictionary)

Being a minority is not intrinsic to being a mob. That is a just a result-oriented fabrication.
5.27.2009 2:56pm
MarcoLuxe:
Robert West has it exactly right when he says:

The court decision seems to say that the [state] has to recognize these marriages and treat them identically to "marriages" while calling them something different.



This is exactly why the opinion reads like the outcome-driven casuistry of cowards. The court is frightened of either a recall or the effect on the prestige of the court. The sad thing is they seem to be afraid of barely 50% of voters, more elderly than not, influenced by [externally driven] fear-mongering propaganda. It's clear in the opinion that they are not enthusiastic about their cowardice, but that's little comfort.

Volokh's thoughts that the amendment was legally authoritative "(unless it violates some superior legal rule...)" is flawed because the parenthetical comment goes right to the crux of the argument. The "superior legal rule" is the Equal Protection guaranties preexisting in the CA Constitution. Equal Protection is the compact's equivalent of the Golden Rule and is really step #1 of our self-imposed check on the majority's power. {if I want to restrict you, then I'll live by the same restriction}

The correct ruling should have been that Prop 8 violates the paramount precept of Equal Protection, as the equality of those that once appeared different has become manifest over time.[Black, Malay, Red, Mongoloid] Any change to EP does in fact change the core principles of the Constitution -> revision. Baring that direct outcome, a better political, though also cowardly compromise would have been to allow the amendment to stand but rule that EP doesn't allow the govt to recognize unequal nomenclature[dignity]: Prop 8 forces the position that "marriage" can no longer be recognized by the state; it's DP's for everyone.
5.31.2009 1:16am

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