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 Prop. 8 and the Misery of the LawPosted on Jun 4, 2009
By Scott Tucker (Page 2) The historian Henry Steele Commager once wrote a fine introduction to an annotated edition of the United States Constitution (“The Meaning of the Constitution,” by Angela Roddey Holder and John Thomas Roddey Holder), and he noted, “If we have an aristocracy in America, it is, as de Tocqueville observed 150 years ago, ‘the aristocracy of the robe.’ At the very beginnings of our judicial history, American courts adopted the habit of elaborate written opinions, of seriatim opinions and, a practice all but unknown elsewhere, of dissenting opinions. These were, in effect, appeals from the present to the future, but courts were not invariably dependent on precedent. They could override earlier decisions in order to accommodate the Constitution to the necessities of the time—thus making sure it would be a living instrument.” There you have, in brief, the more or less Darwinian argument for the evolution of constitutional law. The basic genetic elements of any body of law will have a certain stability over time, and may prove sturdy under the stresses of technological advances and cultural revolutions. To preserve the best elements of past radicalism, the law must have a conserving (and thus conservative) power. But even a strong constitutional system may suffer from hardening of the arteries after hundreds of years. If, for example, the anti-majoritarian provisions of constitutional law were read to provide the greatest privileges and protection to the rich on the grounds that the rich are evidently less numerous than the poor, then many of us might protest. We might try to make the case for common sense and common humanity. Making that case would not mean waging a war of class resentment against the human and civil rights of wealthy individuals. On the contrary, one proof of the moral and political difference between class resentment and class consciousness is precisely the preservation of public courts as a tribune of the whole people. If that example seems strange or far-fetched, we should consider just one of many legal fictions that have real social force, namely, the legal fiction that a corporation has “individual” rights. In 1886 the United States Supreme Court ruled in Santa Clara v. Southern Pacific Railroad that a private corporation was a natural person under the U.S. Constitution, protected by the Bill of Rights and the 14th Amendment. As Supreme Court Justice William O. Douglas was to write 60 years later, “There was no history, logic, or reason to support that view.” But there it is, enshrined in the majesty of the law; and it remains a stark example of the instrumental use of anti-majoritarian principles to expand the rights of private corporations (under the rubric of personhood and individual rights), and to restrict the public rights of the great majority of real persons. This now belongs to the unfinished business of the American Revolution. Slavery was conducted for many centuries under the majesty of the law, and the same triumphal constitutionalism continues to give moral and political cover for every kind of corporate plunder and for imperial wars. Against the historical background of such barbarism, Proposition 8 may seem to figure only incidentally. But the principles at stake here have practical consequences going well beyond sexual orientation and marriage. Advertisement The American rebels had the great advantage of having the Atlantic Ocean between themselves and Britain. No immense natural boundary divides gay people from straight people, so gay people will have to be a bit more philosophical when we declare our own independence from the Straight State. No doctrine of separatism between gay and straight people is implied here. The real issue is the overbearing majoritarian rule of straight people over gay people. Christopher Isherwood called that social system “the heterosexual dictatorship,” but it was already eroding when he was falling in love with young men in Berlin and Los Angeles in the first half of the 20th century. The boundaries between gay and straight folks are sometimes quite intimate, for better and for worse. The fact that so many gay people still live in hiding among straight family members, neighbors and workers is one reason our existence gives the religious right such a sense of the uncanny. They never know if the next full moon will turn a smiling sibling into a werewolf, or a kindly neighbor into the Antichrist. The decisive difference between being gay and being straight, according to the gospel of the religious right, is making the right decision for God. Then, the believers say, the decision for marriage between one man and one woman will follow in due course. In the United States the religious right is now fighting for a comeback in ventures such as Proposition 8. The far-right white evangelicals of the mid-1970s learned the lessons of coalition, as succeeding decades have demonstrated. Proposition 8 proved they could join, and had joined, forces with the most conservative black Christian ministers, and with the Mormon Church and the Catholic Church. The Mormon Church alone pumped many millions of dollars across state lines to drive the campaign for Proposition 8 in California. Proponents of Proposition 8 spent over $40 million in this cause. Opponents spent nearly as much, making this the most expensive battle over a voter initiative in California’s history. But we do not simply get to choose our battles, and anyone who thinks this one was not worth fighting has already decided that gay people are roadkill in the rear view mirror. During a brief time, roughly 18,000 same-sex couples married in California within the law, walking through the door opened by a state Supreme Court decision that found no constitutional support for the exclusion of such couples from civil marriage (In Re Marriage Cases, 2008). But the religious right began work to reverse that decision by mounting a campaign to place Proposition 8 on the ballot. When that proposition passed, of course it was taken in turn back to the state Supreme Court. Some 36,000 people thus became the stranded winners in the state marital lottery. We were left hoping (against the obvious odds) that California’s highest judges would not draw a line dividing a small number of legally married gay people from a much greater number of gay people who might choose to marry in the future. For lesbian, gay and bisexual people, the majoritarian Wheel of Fortune had turned against civil equality in marriage once again.
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By RobertinWestbury, June 8, 2009 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…
Report thisBy BlueEagle, June 8, 2009 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.
Report thisBy RobertinWestbury, June 8, 2009 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.
Report thisBy Ron Ranft, June 7, 2009 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.
Report thisBy Thomas Mc, June 7, 2009 at 11:53 am #
Boycott California.
Report thisBy Maria, June 7, 2009 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.
Report thisBy godistwaddle, June 7, 2009 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.
Report thisBy rockinrobin, June 6, 2009 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.
Report thisGet 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!
By photoshock, June 6, 2009 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.
Report thisShould 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.
By Thomas Mc, June 6, 2009 at 10:33 am #
We will boycott the H8 State until they stop enshrining bigotry and hatred in their Constitution!
Report thisBy RobertinWestbury, June 6, 2009 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…
Report thisBy BlueEagle, June 5, 2009 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.
Report thisBy John, June 5, 2009 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 pages.
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.
Report thisBy the tshirt doctor, June 5, 2009 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.
Report thisBy jjohnjj, June 5, 2009 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.
Report thisBy hippie4ever, June 5, 2009 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.
Report thisBy Alan E., June 5, 2009 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.
Report this