When I first addressed this subject I thought the California constitutional challenge would be pretty much a slam-dunk. Prop 8 proposed to alter a California constitutional fundamental right (to marry) aimed solely against a despised minority recognized as a suspect class (gay people) and thus would constitute a 'revision' rather than a mere 'amendment' and as such could not be accomplished by a mere majority vote of the general electorate, right?
Well, not so quick. I should have known better. I am, after all, a lawyer, and I've seen just how mendacious the courts can be. It never occurred to me the California Supreme Court would be this mendacious.
I mean, I've seen some fancy judicial footwork before. We all have. Remember Bush v. Gore? Author: Tony Scalia. Need I say more? But at least that Court (U.S. Supreme) split 5 to 4. Yesterday, the California Supreme Court went 6:1 to hold that Prop 8 really didn't reduce gay people to second-class citizens. They still have civil unions, right? Hey, that's pretty much the same thing as marriage, so if we don't allow gays to 'marry' what's the big deal? Where's the harm? It is, after all, just a word. No kidding - that's what they said.
To put it in scholarly legal context, the California Supreme Court handed-down its own version of Plessy v. Ferguson. That's the 1898 U.S. Supreme Court case that upheld segregated schools because they're "separate but equal."
Top add insult to injury, the six justices (how dare they call themselves that!) collectively wrote 150 pages of pure garbage. We, the taxpayers, have to pay for that. It's tough reading, not because it's too wordy or the insights require too fine a juridical mind to comprehend, but because it's just so much garbage that reading it is a guaranteed headache.
Only one California Justice got it right. Carlos Moreno was the only dissenter, the only one of seven to tell the world plainly that the emperor has no clothes. Read his 25 page dissent. He says it all. And it's easy reading - because it makes sense. The majority opinion does not. That's why it's so hard to read. They have to dress up all their bullshit in fancy language so you won't figure out the obvious - that they're just blowing smoke up your nose.
On the one hand, I'm angry. The courts scream to us how 'fair' they are. But the bottom line is that they're a corrupt cesspool of stinking, lying, back-stabbing scum and Huey Newton was right -- there is no "justice," there's only "just us" - and fuck you.
On the other hand (lawyers always need two hands - have you even seen a lawyer with just one?) I still have one tenuous foot somewhat planted in the real world and it tells me the world is an imperfect place, starting with the courts. It's The Golden Rule - the guy with the gold makes the rules, and our treasury is kinds low on yellow metal.
It took the U.S. Supreme Court 56 years to redress Plessy and hold that "separate but equal" is unconstitutional. How long will it take to do the same with the right to marry in California?
This decision is so bad that the two lead lawyers who were on opposite sides of Bush v. Gore are teaming-up to challenge this decision in the Federal district court. That's right - David Boies and Ted Olsen(!)This isn't the first time a Federal court struck down a patently anti-gay voter initiative that amended a state constitution. It happened in 1996 in Colorado.
But I'm not looking to the courts for help. Maybe Scalia, Roberts, Alito and what's-his-face will all conveniently off themselves and Obama will pack the U.S. Supreme Court with liberal judges who will turn things around, for a while at least until the pendulum swings back the other way again. I'm a student of history and that is human history.
In the meantime, the most plausible solution is yet another California ballot initiative, this time to amend the California Constitution to undo Prop 8.
We shouldn't have to be in this mess now in the first place. We shouldn't have lost the fight last November but the gay leadership has proven itself hopelessly inept. We'll be saved, if at all, by the inexorable demographic shift toward younger voters, the kind of people who increasingly aren't buying into their parents' homophobia. Maybe.
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Your Plessy v. Ferguson analogy is spot on. Very interesting to read an analysis of the prop 8 debacle, and the courts in general, from a lawyer and former insider. Examiner.com is recruiting in Los Angeles; if they have a section for law or rights or gender issues, your post should be there.
Despite the success of a fear-based Mormon-funded step backward here in California, gay rights are on a global upward trajectory. China has had its first gay pride parade, and India appears close to decriminalizing homosexuality. Aside from muslim-majority countries, Africa (save for post-Apartheid South Africa), Jamaica and the Caribbean, gay equality is crawling forward even in the developing world. Just like Stonewall 40 years ago, the impetus for change lies with extraordinary brave people who stand in solidarity to oppose terror.
By the way, do you think Sotomayor will help or hurt here? Her record appears to demonstrate a respect for the Constitutional right to privacy and the right of Congress to promote civil rights, not to mention the encouraging personal insights from gays (such as legal activist Paula Ettelbrick) who have met/worked/crossed paths with her.
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