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Prop. 8 and the Misery of the Law

AP photo / Damian Dovarganes

Protesters take part in a “No on Prop. 8” march and rally last year in front of a Mormon church in Los Angeles to protest the Mormon leadership’s support of the measure to ban same-sex marriage in California. Voters approved the initiative last November and it took effect almost immediately.

By Scott Tucker

The right to rebel is my real subject here, but the misery of the law is not incidental. No good case can be made for rebellion as an unqualified good in itself. But the right to rebel also cannot be limited to the rebel causes that were won long ago and have passed over into our national mythology.

There is a historical irony in the events of Nov. 4, 2008: Barack Obama became the first black president of the United States, and a majority of American voters broke down one more racial barrier to high public office. On the same day, Proposition 8 was passed by a small majority of California voters and added this sentence to the state constitution: “Only marriage between a man and a woman is valid or recognized in California.”

A further historical irony was underscored on May 26, 2009: Obama nominated federal appeals court Justice Sonia Sotomayor to the U.S. Supreme Court, a woman who, if confirmed, may be the first person of Latino heritage on the highest court.¹ And on the same day, the California Supreme Court voted to deny validity to the legal suits brought against Proposition 8 after its passage, and thus to make the language of Proposition 8 constitutionally binding upon all citizens of the state.

The majority of the court argued that their hands were tied in delivering this ruling. (See Strauss v. Horton, Tyler v. State of California, and City and County of San Francisco v. Horton, 2009.) The constraints of the state constitution were so clear and binding, in the majority’s view, that their own earlier arguments and decision in favor of granting the legal right of marriage to same-sex couples in California had to be consigned to legal history. The majority opinion, written by Chief Justice Ronald M. George (who had also written the previous majority opinion in favor of same-sex marriage), took great pains to insist that the main issue before the court was not the merits or demerits of same-sex marriage, but instead a strictly legal question of who gets to change the language of the state constitution, under what form, and by what means.

The dissenting opinion written by Justice Carlos R. Moreno also states that the court had already decided in Marriage Cases (2008) that the language of Proposition 8 “discriminates against same-sex couples and denies them equal protection of the law,” so the procedural question of amendment or of revision called for separate resolution. In the case of Proposition 8, is the proposed change a limited and fairly technical amendment? Or is Proposition 8 a serious revision, in both principle and practical scope, of the state constitution? The majority on the court decided Proposition 8 was an amendment, and furthermore that the California Constitution gave the justices on this court no authority over the initiative process and the majoritarian decision of the voters. Moreno, on the contrary, argued that Proposition 8 is indeed a far-reaching change that must be considered a revision, rather than an amendment, of the state Constitution. In Moreno’s words: “The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that is recognized in the Marriage Cases, it places at risk the constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent.”

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Furthermore, Moreno noted: “ … Proposition 8 entirely undermines the countermajoritarian nature of the equal protection clause and usurps the judiciary’s special constitutional role as protector of minority rights. … ”

In summary, Moreno wrote:

Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.

This could not have been the intent of those who devised and enacted the initiative process. In my view, the aim of Proposition 8 and all similar initiating measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the votes; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.

Proposition 8 is now a miserable provision of the California Constitution, ratified by a majority of justices who made many miserably consistent legal arguments for an unjust cause. But there are also preposterous legal contradictions in the opinions of the majority of the court. In this regard, we must be grateful for the thorough and devastating dissent penned by Justice Moreno. (His dissent concurs in part with the majority, and in good legal form is titled “A Concurring and Dissenting Opinion.”)

The misery of the law is not an uplifting subject for career politicians, and certainly not for lawyers and judges. They choose to give speeches and write books about the majesty of the law instead, a choice that is understandable given their careers and the general division of labor. No matter what happens behind closed doors, their professions require the projection of optimism to the general public. Big bankers might be shaken in their faith that the hand of God works through the free market. The CEOs of General Motors and Chrysler may still tell customers they will deliver another century of Happy Motoring, and yet have private doubts. Hell, even Bill Clinton may grow tired of his own snake-oil salesmanship on behalf of the Clinton Foundation, and Tony Blair may yet lose faith in the Tony Blair Faith Foundation. But we, the people, are led to believe by high courts and career politicians that only citizens with weak constitutions could waver in our faith in the Founding Fathers.

To make a modest argument for the misery of the law is to make the argument for a small dose of corrective medicine. The malady is constitutional triumphalism. But of course any sane person would prefer that malady over outright dictatorship. And the usual arguments for the rule of law and against the rule of demagogues are no less reasonable for being unoriginal. Justice Sandra Day O’Connor wrote a recent book titled “The Majesty of the Law,” and in 1996 Judge Sotomayor gave a lecture at Suffolk University Law School that was published (with a co-author and in revised form) in the school’s Law Review under the title “Returning Majesty to the Law and Politics: A Modern Approach.” Sotomayor makes the case for a kind of legal realism, namely, for more honest acknowledgement that judges often respond to unforeseen events and to social movements. Judges do not (as a general rule) simply make up the law out of their own will and whimsy, but neither are they obliged to throw themselves under the juggernaut of legal tradition simply because the accumulated weight and momentum of case law is real.

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TAGS: barack obama campaign clinton congress court debate democracy democrats gay government history house law lgbt marriage media money obama politics prop. 8 race religion republicans revolution scott tucker speech

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By RobertinWestbury, June 8 at 8:20 pm #

“RobertinWestbury - you wish to live inside and try to change a corrupt system. I wish to dismantle the system.”

Good luck!

You will never succeed in dismantling a ‘system’ that has benefitted pretty much everyone (except gay people), and for which few would be willing to tear up their marriage certificates…

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By BlueEagle, June 8 at 3:55 pm #

What we need to do is end marriage as a legal status and get the government out of our personal lives. We should also end civil unions.

About.com says the benefits of civil unions are: “Survivor benefits through Social Security, sick leave to care for ailing partner, tax breaks, veterans benefits and insurance breaks. They also include things like family discounts, obtaining family insurance through your employer, visiting your spouse in the hospital and making medical decisions if your partner is unable to. Civil Unions protect some of these rights, but not all of them.

RobertinWestbury - you wish to live inside and try to change a corrupt system. I wish to dismantle the system.

The entire system is out of control.

Here are other some of the legal benefits of marriage:
http://lesbianlife.about.com/od/wedding/f/MarriageBenefit.htm

Status as “next-of-kin” for hospital visits and medical decisions - anyone should be able to visit a loved one and anyone the person designates as a decision maker should be able to make a decision. I’m sure there are a lot of people out there that would rather have their best friend make a medical decision rather than their spouse or another family member. Besides, why should The State decide what a private hospital can. If you don’t like hospital A, then you go to hospital B.

The more I read these so-called benefits the more I realize we need to get The State our of our lives. The welfare nanny state extends its tentacles and it time to chop them off.

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By RobertinWestbury, June 8 at 7:13 am #

RockinRobin said:
“If you are going to REBEL; REBEL for the RIGHT REASONS!”

Your entire post was based on a false assumption. That civil unions are marriage and marriages are civil unions.

Civil Unions have never contained or provided for the same rights as marriages. Furthermore, the separate distinction itself sets up a prejudicial attitude that those who oppose marriage equality have somehow ‘saved’ the institution. The obvious reasoning is that we are somehow unworthy of it, or that God would be opposed to us having the opportunity.

It is doubtful those who have marriages would be so willing to pass a resolution or amendment downgrading their marriages to civil unions, and that is what it would be. That the two institutions are equal is a joke.

I find it disturbing that you would post comments on an article that means a great deal to many of us, trivializing the issue by claiming the two institutions are equal and pontificating that we need to ‘rebel’ for the ‘right’ reasons. Then proceed to lecture us on what the right reasons are. Only an idealogue would try to hijack a discussion on any subject and turn it into a diatribe on whatever cause they are pushing.

Much of what you stated is likely legitimate. But it doesn’t pertain to this subject.

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By Ron Ranft, June 7 at 4:54 pm #
(Unregistered commenter)

By John, June 5 at 6:55 pm #
(Unregistered commenter)

Thanks Scott. You have a lot to say (I’m not sure what it is) but I fear you take too many words to say it. I doubt anyone has the time to slog through 13 pages (!) of dicta that does not address the legal issue. The length may be due to the mixed font size but still it’s way too long and my eyes glazed over after a few page.

Wow, talk about disengaged! I can only imagine what would have happened if you had attempted to read the original 138 page rendering that the Justices wrote in this decision. I can see you telling Einstein, “could you boil that relativity thing down to a couple of sentences?” Or maybe asking Darwin, “men are monkeys, yes or no?”

This article had many points. Most of which you apparently missed either by willfull ignorance or just plain laziness.

These Justices took the easy way out and in doing so compounded their mistake. This decision, along with the recent decision that Banks have the right, contrary to Federal Law, to take a persons social security money for fees clearly puts them as part of the problem and not the solution. I am personally looking forward to the time when they appear on the ballot for reconfirmation.

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By Thomas Mc, June 7 at 11:53 am #

Boycott California.

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By Maria, June 7 at 10:12 am #
(Unregistered commenter)

It is overwhelmingly frustrating when two people who have been spiritually and socially committed to each other cannot benefit from the legal privileges the state grants to blood and legally-bound relatives. It is logical that any couple would follow a path that would allow them to legitimize their claim on each other’s lives, rights and wishes. As union through marriage is an institution that grants such legal decision-making rights to couples, it natural that all couples want the right to have access to it.

So the quandry of prop 8 is that homosexual couples can be socially-accepted couples, but not legally-accepted partners. Whatever motivates a couple to get married, the hard cold facts is that marriage is one thing: a contract legally allowing a fellow citizen of non-sanguinal ties the privilege of access to proxy rights to the individual. What difference does the sex of the marrying individuals make, especially in an age where artificial insemination and single-parent adoption allow for every legally and socially qualified person to be a parent?

This said, the Prop-8 argument of civil rights is distinct from President Obama’s climb to power. Obama made the cut for the presidency once he won the Democratic nomination. He won that nomination through backers, both for him and against his opponents. Therefore, as far as political predictions go, the results of the November elections were not surprising as the rally up to that evening showed that Americans, especially the citizens, who are often overlooked, got recognized. Like other candidates, he had to woo the American people with plausible promises and a certitude to be different from the former administrations, especially the most recent one. Indeed, Obama ran a pluralistic campaign and so got a pluralistic result.

Had Americans voted Jesse Jackson into power, then everyone could say civil rights had elected its first black president because Jackson’s campaign was not geared for all the people. In fact, it was reminiscent of the typical for a “particular” people rhetoric. In this case, the homosexual couples feeling oppressed by prop 8 could use Black civil rights to show a stage of progress. But, Jesse Jackson is not the President.

My argument is each group that rallies for civil rights does so on its own merits. The consequence of President Obama being the first black American president is a civil rights issue for democracy and the ballot box.

Thus, as not to mix apples with oranges and weaken the prop 8 rally, supporters should consider the evolution of marriage in legally-segregated America versus today in socially-segregated America.

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By godistwaddle, June 7 at 7:33 am #

Since, as Henrik Ibsen wrote: “The majority is ALWAYS wrong,” the need, indeed the duty, for rebellion is constant, and, I’d argue, an unqualified good in itself.

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By rockinrobin, June 6 at 11:45 pm #
(Unregistered commenter)

Marriage is a UNION, folks. A civil UNION; that is quite simply what a marriage is. So why all the distraction is ridiculous: a rose by any other name is still a rose; a civil union is a marriage & a marriage is a civil union; those who desire to make it more depends on the individuals NOT the courts anyway. If you REALLY want something to REBEL about: consider that health care benefits STOP the moment you get ill, per Fed law. That is because the Politicians whose AGENDA is to TARGET and HARM the PEOPLE of the USA (THAT is what EXPLOITATION IS folks) & claim that “this is the way “democracy” works: it is NOT the way of anything but CRIMINAL folks. Exploitation is a CRIME; it is NOT a 2 party system, that is to MISLEAD and DECEIVE; to DISTRACT by emotional issues; the POLITICIANS & Pentagon own & work with Corps using CHEMICALS which NO OTHER NATION will BUY any product at all from the USA; they all KNOW that our Gov is CORRUPT & CRIMINALS and CROOKS: and wonder WHY the PEOPLE of the USA put up with it; it is NOT by the people, of the people, for the people at ALL. NO gov agency in the USA is doing the JOB it is SUPPOSED to be doing; not the EPA; NONE of them; http://www.publicintegrity.org lists over 250 areas which are just like “movie settings” to MISLEAD and DECEIVE the PUBLIC; it is called PUBLIC PERCEPTION MANAGEMENT folks.
Get angry at the ROOT CAUSE of the PROBLEM first HERE in the USA then GLOBALLY. It’s NOT the immigrants, it’s NOT the PEOPLE it is the CRIMINAL GOV; of the USA; LAWS???? built in the USA on shifting sands; put what the PEOPLE want on the books, they will be HAPPY THINKING they are being followed; then DO WHATEVER YOU WANT TO DO: we have SUCCESSFULLY DONE THIS for DECADES!
Fascism, not freedom. The FREEDOM you have is for ANY one anywhere any place any time to MISLEAD, DECEIVE, use HIDDEN tricks & traps; RIP you off (see liars poker, license to steal etc) re Wall ST: remember Hillary put in $1000 & got $100,000 back in 14 hours folks; ALL DONE with COMPLETE CONGRESSIONAL knowledge & oversight. It is CALLED EXPLOITATION, it is a CRIME, and backed up by our “judicial” system by judges KNOWING exactly what is going on & getting paid WELL to go along with it. If you are going to REBEL; REBEL for the RIGHT REASONS!

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By photoshock, June 6 at 10:55 am #

The idea that those already married have the right to consider themselves married and those that would have civil marriage contracts in the future cannot consider themselves married in the context of ‘gay marriage’ is highly discriminatory and against the law of the land.
Should this case reach the Supreme Court of the U.S. we will find that the rights of the GLBT community will be enshrined in the decision.
Nowhere in the Constitution of the US does it talk about marriage, yet the government has taken upon itself the rights and privileges to decide who can marry whom. This is not a right that can be taken away by a small though vocal majority of the people.
I am not totally familiar with California’s Constitution, but in the Constitution of the US, no state can legally justify taking away any right that is not enumerated in the Constitution of the US.
We are a nation of the Supreme Law, the one that gives the rights of the government by the people to those who have been elected to represent us in Congress.
Now we are becoming that which we hate, a balkanized, bifurcated country with a mish-mash of laws that make no sense and are totally at odds with those of another state. Should this trend continue, and it will, we are on the road to perdition! We will
no longer be a United country, but the subject of scorn and ridicule from the rest of the world, for believing that this ‘grand experiment,’ could work for any length of time.

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By Thomas Mc, June 6 at 10:33 am #

We will boycott the H8 State until they stop enshrining bigotry and hatred in their Constitution!

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By RobertinWestbury, June 6 at 8:18 am #

Blue Eagle stated:

“This is a non-issue. Marriage is a religious institution and has NOTHING to do with The State. The State cannot strip anyone of there religious rights.”

You can’t be serious!

Without the state, there would be no legal, binding rights for anyone. Religions don’t provide the legal benefits of marriage, government does. Government recognizes as legal marriage contracts sealed in religios ceremonies, but religions do not provide legal benefits.

Only the state does.

Marriage is a civil contract. Marriage is a religious ceremony. It can be both. It can be just one or the other. But it can only be legal due to the civil aspects of it (the non-religous side of it).

State approval bestows not only the rights of civil marriage, but legitimacy that anyone should be afforded in making a decision on who to spend the rest of their life with.

Hawkeye - you are a scary nut. Your sense of vigilantism is rooted in a 60s western, complete with Miss Kitty’s saloon. The ‘groups’ you claim should have the right to protect their neighborhoods already exist. They’re called gangs. Your solution to life’s conflicts is to tell others to ‘just act right and there won’t be a fight.’ LOL. Why don’t we just crown you king and sit at your feet in anticipation of learning what is right and what is worthy of a fight.

I think I’d rather opt for the fight..

Oh wait a minute… we’ve had lots and lots of fights in our history (wars)to protect our freedom of pursuiting our own happiness based on what each of us perceives to be ‘right.’

The wild west is gone Cowboy…

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By BlueEagle, June 5 at 10:03 pm #

So sad that the elite have the sheeple distracted by such issues.

This is a non-issue. Marriage is a religious institution and has NOTHING to do with The State. The State cannot strip anyone of there religious rights.

Form a religion tomorrow, allow anyone to unite and call it marriage. That’s anyone’s right. The State cannot stop you.

Why look to The State to grant you rights? You are granted them by your creator.

Why look to The State to approve your decisions or “recognize” your religious institution’s beliefs?

Why do people need approval from The State?

Why is The State involved in any sort of marriage? People should be fighting to keep The State out of their personal lives not keep inviting The State in.

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By John, June 5 at 6:55 pm #
(Unregistered commenter)

It’s clear you have taken great pain and invested a lot in this essay and I do not wish to offend but let me say this: I gather that your objections are to ‘majority tyranny,’ issues of church and state, and the lesson our so-called activists have forgotten: that the pendulum swings both ways and so does backlash. It is time to get radical and protest loud.

Christians might need to be reminded that the reason they were persecuted in the tolerant Roman Empire was because of their intolerance. Their intolerance is beginning to wear thin on most Americans and it is THEY who should start worrying about backlash.

The problem I have with this essay is the same problem I’ve had with all the stuff I’ve read about Prop 8 and marriage equality. Words, words, words, words. They come like a mighty stream but what do they say? No one addresses the ONLY issues that matter: LAW. No one educates people about law so they can think for themselves. This is the VERY reason we lost and keep on losing. If the readers (voters) are not educated in the legal issues they can not be expected to do the right thing.

I have posted a number of articles you might be interested in looking at at salon.com and WorldPress. I provide the titles so you can just google it.

Please folks this is about LAW, LAW, LAW. If anyone expects their opinions to have any authority they must come to the debate equipped to discuss the legal dynamic and this is NOT difficult legal substance for the average uneducated person to grasp. These legal principles are EASY and we loose only because ignorance prevails. The legal dynamic is child’s play but no where do I see people educating others. Opinions are wonderful and the stronger the better but opinions are only credible if the writer has a grasp of the underlying substantive issues. Otherwise its all just wind — it gets us nowhere.

See by John P. Mortimer, Esq.

1. “N. H. Marriage Compromise Sets Stage for Federal Challenge different versions at Salon.com, World Press and and COTO

2. “A Marriage Made in Heaven?” at Salon.com

3. “California Supreme Court Commits Suicide” Id.

4. “Why New Hampshire’s Accommodationism is Doomed.” Id.

5. “Making Sense of Prop. H8 as Iowa Steals California’s Cool.” Id.

“The misery of the law”? Perhaps but the law is a bramble-bush and as Otto Von Bismark quipped, “The law is like sausages. It’s better to not see how there are made.” We will prevail Scott, we will. I have NO doubt about that. But we will only prevail when we begin educating people instead of being propagandists who exploit ignorance AND when we begin to lash back ourselves. Reason without education is not much help.

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By the tshirt doctor, June 5 at 6:40 pm #

if gay people want to marry, go for it. i don’t think it will be detrimental for anybody else. if you don’t like it, look away.

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By jjohnjj, June 5 at 1:41 pm #
(Unregistered commenter)

Great essay!

In recent letters to my hometown newspaper, Prop-8 supporters insist that the sole purpose of marriage is “reproduction”. Thus, gays cannot “marry” in any functional sense.

If this is true, they why didn’t they allow their parents to select their mates?

I have to ask them: Would you trade your heterosexual “Marriage” for a legally equivalent “Reproductive Union”?

I suspect that they would not. They know very well that there more to marriage than “reproduction”.

We know that “civil unions” relegate people to second class status by denying their emotional life, and thus their humanity.

We cannot allow any American to be treated as a second-class citizen.

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By hippie4ever, June 5 at 1:32 pm #

Alan, it did save your marriage but also created a two-tiered society. Same sex couples married before Prop 8 enjoy rights denied subsequently to others. This is a prima facie case of inequality before the law and demonstrates the mediocrity of the California Supreme Court. They are, with one exception, Rethuglicans and deserve no respect for their decision.

Has Mr. Tucker ever heard of an editor? Perhaps someone could help uncover and magnify the thesis within this rambling article stuffed with legalese? In any case, whether we suffer tyrany from a despot, or an institutional apologist for a people manipulated into a tyranical point of view, is a moot point. Tyrany is tyrany.

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By Alan E., June 5 at 11:13 am #
(Unregistered commenter)

I would like to point out that the exact wording of the amendment says “will be” not “is.” This saved my marriage.

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