Thursday, May 15, 2008

"Screw The Will Of The People" - California Judges OK Gay Marriage

When does one person's vote count more than 36,000,000 other people's?

When that one person is a judge.

Today, by a 4 to 3 vote , the California Supreme Court set aside Proposition 22, a law restricting the use of the term 'marriage' to refer to the union of one man and one woman that was passed by a whopping majority of 61% of the voters back in 2000 to reinforce state law's pre-existing ban on same-sex marriage.

Here's the irony; the states Domestic Partner legislation gives same sex couples the same rights and benefits a heterosexual married couple has, and the court actually admitted as much. But that apparently wasn't as important as endorsing same-sex unions as mariages for these four justices:

... the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution. {...}

It also is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution.

Having mouthed that platitude, the court went on to do exactly that, discovering a hidden `right' to same-sex marriage in the state constitution that was supposedly there all the time!

The actual opinion is interesting, because very early on it becomes an ipse dixit( legalese for 'because I said so') and stops citing existing law and the California Constitution to dwell in the cloudlands of 'fundamental rights'. Since this a brand new law, one would normally expect some legal precedents as part of the legal decision - but they aren't there, and they certainly won't be there later.

This decision will legalize same sex marriages in California, and quite possibly other types of unions too, since it's going to be very difficult to close that particular door now that it's been wrenched open.

It also is a pretty good example of how activist judges try to mandate public policy when their agenda loses at the ballot box.

In this particular case,there could be some interesting political ramifications.

Foes of same-sex marriage weren't idle while this case was being litigated, and they claim to have already collected over a million signatures to put a new measure on the ballot banning same-sex marriages in November..which would trump the judges decision.

Californians will also be voting for president in November, with one candidate, John McCain, who's on record as opposing same-sex marriages.Add that to the large Latino vote that is likely to both support the initiative and have very mixed feelings about Barack Obama if he's the nominee and things could get interesting in California at election time.


Anonymous said...

Jeez, I thought this blog was about resisting Islamic fanaticism. Now we find that Joshua Pundit is siding with the Taliban and Sharia law when it comes to civil liberties for the gay community. Politics really does make strange bedfellows, and don't give us any bull about activist judges. You had no problem with SCOTUS in 2000 giving the election to GWB.

Freedom Fighter said...

Hello Anonymous,
Thanks for dropping by.

Your logic is somewhat faulty, unfortunately.

One of the primary reasons to resist Islamic fascism ( AKA tyranny) is to preserve liberty, along with keeping one's head attached to one's shoulders, so I think commenting on this fits perfectly well with the theme of this site.

This is absolutely NOT about civil liberties, and the Court acknowledged as much by admitting that California's domestic paretnership law gives same-sex couples virtually the same rights as married couples.

It is very much about catering to a political agenda, and as such I guarantee that it constitutes a slippery slope that is detrimental to society as a whole.

As for your comment about the Taliban and Sharia, forgive me, but that's absolutely ludicrous; if you're unable to understand the difference between tolerance and violent intolerance or between tolerance and avid acceptance, that's certainly your affair but I think most reasonable people do.Let's avoid the hysterical rhetoric, shall we?

You also might want to consider what kind of message this sends to the Islamic world, a significant part of whom has not yet bought the jihadi argument that we a re a decadent society doomed to defeat because we embrace practices most major religions consider unholy....although only Islam regards it as a justifiable cause for murder.

As for the 2000 election..*sigh* get over it already. I'm no great fan of th epresent occupant of the White House, but the 2000 election was decided not by the SCOTUS but by the voters of the State of Florida...which Bush won.

I would point out to you that eight out of nine SCOTUS justices thought that the Florida Supreme Court was absolutely ridiculous, and that the differences were on the remedies rather than going along with an extra-legal attempt to nullify a lawful election. Read the decisions sometime.

All Best,

Anonymous said...

What a joke. What it comes down to is that you think the idea of sex between two men, particularly that ONE act, is disgusting (though like most heterosexual males, you probably have no problem with two hot women making out), but you wrap up your arguments in "the will of the people...activist judges." If you think male homosexuality is disgusting, fine, you are welcome to your feelings, but what right do you have to impose YOUR will on some gay couple, who have done NOTHING to trespass against you, by demanding that they accept second-class citizenship status?

The California judges upheld a principal that civil liberties apply equally to everyone in America, regardless of the will of the majority. It was a same principal upheld in decriminalizing inter-racial marriage, another unpopular decision in its time.

Both you and Dinesh D'Souza seem beholden to this naive notion that the Islamists won't hate us as much if we do some faggot-bashing. But the modern-day founder of fanatically puritanical Islam, the Egyptian Wahabi, wrote of America as depraved and immoral back in the 1940's because couples danced the jitterbug and the frug. In other words, it would take a lot more than to bash a few faggots, either in the service of God or being macho, in order to appease the Islamic world.

And oh, by the way, I know for a fact that the extremist puritanism of Islamic culture is in inverse proportion to what actually goes on over there, everything from male homosexuality to trafficking in sexual slavery and child prostitution. But Islamists are no more hypocritical than American religious conservatives in this regard. Just ask Larry Craig and Ted Haggard.

Freedom Fighter said...

Poor Anonymous..take a few aspirin, or maybe a couple zanax and some decent tequilla and relax...a lot.

Before you do that, read my response to you CAREFULLY and take notes.

The issue here is NOT whether I or anyone else thinks what consenting adults do behind closed door is 'disgusting', but whether some activist judges have the right to overule the rights of the majority and find law where there is none.

And by the way, I made no mention of my own private feelings about same-sex activities..merely noting that most major religions find the activity unholy. The rest, you chose to impute, Bubba.

As for the civil liberties aspect, I'll underline it again...the court itself acknowledged that California's Domestic Partnership law gives same-sex couples substantially the same rights as heterosexual married ones.

As a matter of fact, I challenge you to name ONE right same-sex couples are denied in California that married couples have.

I also note your attempt to co-flate the civil rights struggle - where real legal discrimination existed - with the gay marriage issue..which is not only historically incorrect but frankly, offensive to anyone who examines the living conditions of homosexuals in 21st century America as opposed to blacks back in say, the mid twentieth century.
You ought to be embarrased for doing so.

Likewise, note that I never suggested criminalizing homosexuality as a way to 'appease' Islam, something I have no interest in doing regardless.That little tidbit about 'bashing' came from you.

But once again, you fail to see the difference between toleration and active encouragement..and that kind of encouragement DOES have an effect on how we're seen as a society.

Interesting how, in the name of affirming a certain lifestyle where no real legal discrimination exists, you are willing to supercede OTHER people's rights while trumpeting your love for equality!

Here's an even funnier bit...when you're willing to distort the law for your own benefit and take someone else's choice away,you end up having a lot less liberty for yourself.

Trust me on that one.


Rosey said...

I would like to marry a goat.

Freedom Fighter said...

Hi Rosey,
Where have you been lurking?

Assuming this Supreme Court decision stands, you should easily be able to com eto California and marry the goat of your choice....regardless of that goat's sexual orientation!

All Good Things,

Anonymous said...

The California Supreme Court vs. “The Will of the People”

By Alec L. Hansen
May 18, 2008

In the 24 hours since the California Supreme Court issued its ruling on the issue of same-sex marriage, I’ve never heard the phrase “the will of the people” used so often, with so little insight. Opponents of same-sex marriage accuse the court of pushing its own social agenda, because in the legislature (in 1977) and in a referendum (2000), majorities had already voted the other way. Who do these justices think they are, flouting the will of the people? After all, we live in a democracy, right?
Well, I hope so. I’m reminded of the day, when I was a teenager, that my Dad asked me “what’s the definition of democracy?” I mumbled something about having elections and letting people choose their leaders.
“So democracy means ‘majority rule’, right?”
“Yeah, I guess,” I lamely replied, knowing I was about to fall into a trap, but not knowing how to avoid it.
“No!” he exclaimed in triumph. “If a majority in Germany voted to exterminate the Jews, would that be an example of democracy? Or if 51% of Americans voted to rescind the voting rights of all persons of African descent, and turn them domestic servants, would that be democracy? You can only get to democracy if you start with the rights of the individual to be protected from the tyranny of the majority!” He explained that this is the reason Jefferson devoted the Preamble of the Declaration of Independence to “our unalienable rights,” why the framers of the Constitution spent so much time fine-tuning the separation of powers, and why the first ten amendments are called the Bill of Rights.
He helped me to understand that majority rule is an aspect of our governmental system, but just one of many mechanisms that need to be in place to really ensure democracy. Probably more important is that a system of law genuinely protects the rights of minorities – and with that framework and those protections in place, the majority can then proceed to set the remaining policies with their votes.
When I was in high school, he encouraged me on school holidays to go find a court, wander around until I found an interesting case, and just sit, watch and learn. In view of the fact that we lived in Washington D.C. at the time, it’s especially noteworthy that he didn’t suggest that I watch Congress in action, but rather the courts. It was more fundamental to observe the rigorous, sometimes ponderous procedures of the legal system, which are aimed at protecting our rights, while balancing the “will of the majority” (as embodied in the prosecutor, speaking for “the people”). Lynchings, poll taxes, and many other atrocities have been carried out by the “will of the people” at any given time – clearly it’s not an infallible guide to good government.
My Dad believed strongly in these principles – they were not just words, but a guide for action. He grew up in San Francisco with many Asian friends, and was a student at U.C. Berkeley in 1942 when Roosevelt signed Executive Order 9066, authorizing the internment of 110,000 U.S. residents of Japanese descent. He was one of only three students on the West Coast who staged a protest, and he landed in jail. (The next morning, he was bailed out by UC Berkeley President Robert Gordon Sproul – who said he was proud of him.)
After WWII, as an OSS officer in Vienna, my father had to use force to prevent a Soviet soldier from raping an Austrian woman – quite a risk at the outset of the Cold War, but he was unable to stand by as an atrocity was committed.
As an official in the Kennedy Administration, sent to Vietnam by National Security Advisor McGeorge Bundy in 1962 for an evaluation, he reported that we would never win with the tactics we were using, in alliance with a corrupt government, supporting the oppression of the very people we were trying to woo away from communism. His report caused a stir and earned him many enemies in the administration, including Defense Secretary McNamara.
He was willing to take risks for the ethical principles he believed in – one of a breed that has always been rare but seems especially rare today.
Kenneth Hansen was no fan of reggae, but I think he would have appreciated these lyrics from Peter Tosh:
Everyone is crying out for peace, yes
None is crying out for justice
I don’t want no peace
I need equal rights and justice
∙ ∙ ∙
Critics of the Court’s decision appear to believe that anything that interferes with the desires of 51% of the population thwarts democracy. They fail to recognize that the actions of the courts are also a vital part of democracy. The framers of the U.S. Constitution understood clearly that the unfettered “will of the people” expressed through the ballot box becomes simply a “tyranny of the majority” – a frightening prospect. Precisely to prevent such tyranny they established a formidable bulwark – the separation of powers – ensuring that whenever the majority tried to trample the rights of minorities, the courts could step in to preserve those rights.
This is exactly what the California Supreme Court has done in Thursday’s decision. Citing the Court’s 1948 ruling (also 4-3) striking down restrictions on interracial marriages, they pointed out that ‘previous tradition’ and ‘the will of the majority’ were insufficient grounds to restrict the rights of individuals also in that case (amazingly, the U.S. Supreme Court didn’t follow suit until 1967). Basic rights must be the foundation of democracy, and the courts have a key role to play in protecting those rights.
This is why, for me, the most unnerving fact that this controversy has brought to light is the ease with which California’s constitution can be amended. To amend the U.S. Constitution, for example, a two-thirds majority of both houses must approve the proposed language, and three-quarters of the state legislatures must ratify it. Most states have similarly high bars, preventing ill conceived and hastily passed amendments.
But California’s constitution requires only a simple majority of the electorate, and a proposed amendment banning same-sex marriages has already garnered enough signatures to appear on November’s ballot. The idea that a simple majority of the electorate can overrule the state Supreme Court is inappropriate…no matter what one’s position is on gay marriage, an amendment that makes it harder to amend the constitution should be a high priority for sane government in California.
In the meantime, I hope I will hear fewer shrill claims about the “will of the people” and more serious consideration of what it means to have rights, and what it takes to protect them.

Freedom Fighter said...

Nice straw man and false argument anonymous. My compliments. But it won't fly here, I'm afraid.

This is not about some thuggish majority voting to strip civil rights away from a minority, much as you would like it to be.

What is IS about is the judicial branch of government ursurping the legislative branch's function by creating law instead of interperting it.

I assume your hip enough to basic civics to understand the three branches of government and their functions.

I defy you to name me one right that homosexuals are denied under California's Domestic Partnership laws that heterosexual couples have.Trust can't.

While most people don't particularly care who consenting adults have relationships with, they do understand the door this opens up both in terms of letting judges get away with this flim-flam and in terms of the larger effect on society.

Look for that constitutional amendment to pass overwhelmingly in November.