Monday, March 09, 2009

Delayed "Post Mortem" on Prop 8's Day in Court


Window into Ken Starr's California: Conceived in bigotry and dedicated to the proposition that all straight people are created equal.

So it's been a busy couple days in the neighborhood! After spending most of Thursday viewing and then "digesting" the Supreme Court oral arguments on Prop 8 both Friday and Saturday were full-to-the-brim with the All Saints Church Vestry/Staff Conference and then Sunday was ... well, Sunday.

So here I am ... back with my notes from Thursday trying to make some sense of what I saw and heard and thought:

#1 -- This is NOT an "activist court."

In some ways it is a very conservative court -- which is why the May 2008 decision on marriage equality was so extraordinary.

#2 -- It is very clear that what the petitioners (that would be OUR side) were asking the court to do is what I'm told legal people call a "first impression" thing -- and so it is a huge uphill battle.

#3 -- That said, the petitioners made exactly the arguments they needed to make:



  • This is not just about "gay marriage" but about whether a bare majority can take away fundamental rights from a vulnerable minority.

  • The people absolutely have a right to amend the constitution in California but taking away a fundamental right is not an amendment but a revision -- and that (according to how California law works) is matter for the State Legislature not a ballot initiative.

Ken Starr, who argued for the interveners (that would be the OTHER side) based his argument on the sovereignty of the people. The argument of whether or not Prop 8 constitutes an amendment or a revision seems to rise and fall on the point that in order for it to be a revision "there must be a far reaching change in the structure of government."



(Some of us think that if abandoning the foundational value of constitutional democracy that the rights of minority populations are protected by the courts from the tyranny of the majority isn't "far reaching change" then we don't want to see "far reaching change.")

Starr, however, argued that the people have the right to "act unwisely in the initiative process" EVEN saying "Yes" when the Chief Justice asked if that meant "the people" could -- through the initiative process -- remove rights like freedom of speech.

Honest. Couldn't make that up. Check it out on this You Tube Clip if you don't believe me.

"Yes."

"Yes" to abandoning a core, foundational identity of this nation as a constitutional democracy where the rights of minorites are protected from the tyranny of the majority and First Amendment Rights are up for grabs.

WOW! That's what we're up against, folks. And if you have been working on inclusion issues within the Episcopal Church you may be experiencing some "deja vu all over again."


Both our nation and our church claim a long history of a representative polity that depends on balance and separation of powers. Or we did the last time I checked. And both are under attack by those who want to use majority power to exclude minority members.

When I listened to Ken Starr, what I heard WAS "a far reaching change in the structure of government" -- it was nothing less than changing these United States of America into "one nation, conceived in bigotry and dedicated to the proposition that all straight people are created equal."


Californians deserve better. And so does our Constitution!

What the petitioners asked in Thursday's arguments was for the California Supreme Court to be a headlight rather than a tail light on this issue of marriage equality -- not just as a matter of justice for gay and lesbian couples and their familes but as a matter of precident for ALL minority populations who count on equal protection to protect them. And whether or not this Court is willing to rise to that challenge remains to be seen.


But here -- in a story from Mel White -- is why I think it's so crucial that either they do or WE do:


=======

I love the Bible. I read God’s Word in it and hear God’s Word through it. But the United States is not a nation governed by the Bible. Our nation is governed by the Constitution and the Bill of Rights. Our laws were created to protect an individual’s right to disagree. If the Bible (or someone’s view of the Bible) replaces the Constitution as the law of the land, we undermine the great foundation upon which this country was built.


When I was a guest on a talk show in Seattle, I saw what might happen to me and to millions like me if a genuine literalist gained political power over this country. The other guest on the show was an independent Presbyterian pastor. When I told him that I was gay, he said without hesitation, “Then you should be killed.”

A Christian brother sentenced me to death, guided only by his literal
understanding of Leviticus 20:13.

I asked him, “Who should do the killing, you church folk?” He answered, “No, that’s the civil authorities’ job. That’s why we need to elect more good men of God into government.”

I sat there in stunned silence, until he added, “I know it must be hard for you to hear it, Dr. White—but God said it first and it’s our job to obey.”

I hope we can agree that all of us must stand together against those who would replace the Constitution with biblical law. That’s why, when I lecture on a university campus, I carry a Bible in one pocket and a Constitution in the other.

============

Mel should be able to count on the Constitution to protect him. And so should we.

I don't actually have a crystal ball, but I had plenty of folks on Thursday asking me to look into one, anwway.


The question I got from a Reuter's reporter after the oral arguments were completed was "Are you optimistic?"

I answered, "Always. Martin Luther King, Jr. famously said that the arc of history is long but it bends toward justice. So I am ALWAYS a long term optimist ... and usually a short term realist."


Whatever happens with the California Court decision, the most important thing that happened on Thursday was the reframing of the debate going forward -- driving home the reality that what Proposition 8 means is that ANY vulnerable minorityin California is now subject to a bare majority of voters in any particular election taking away any one of their fundamental rights through an initiative process.

During the rebuttal period of the oral arguments, one of the petitioning attorneys made this argument: What if 51% of California voters should decide that only men can be appointed as a Supreme Court Justices in California? Equally qualified women could be appointed to serve on the bench with the same rights and responsibilities but would be called "Commissioners" -- in order to preserve the "traditional judiciary."


And during the press conference the day before Supreme Court hearing, the local head of the Southern Christian Leadership Conference made this argument: Make no mistake about it -- if in 1954 the voters had been able by an initiative process to vote away Brown v. Board of Education, they would have done it and our schools might still be segregated.


At the end of the day, Californians will have to decide what kind of California they want to live in. The arguments on Thursday, March 5 before the California Supreme Court may not end up convincing the California Court to be prophetic -- but they may serve to convince the California voters that the next rights that will be up for auction may be theirs ... and that living in a state with gay marriage is preferable to living in a state without equal protection.


.

33 comments:

janinsanfran said...

In fact, in 1964, Californians had the opportunity to vote on whether they wanted a "fair housing" law which prevented property owners, landlords and sellers, from refusing to deal with African Americans. Sixty-five percent (!) voted for it.

The U.S. Supreme Court nullifed that one in 1967, an option almost certainly not available in our current situation (because of both judicial conservatism and DOMA.)

Yard[D]og said...

AMEN!

Dale Francisco said...

Ken Starr did not say what you say he did.

What he said was that the Federal constitution (which includes the right of free speech) acts as a failsafe mechanism, even if California voters are unwise.

There is no "fundamental right" to same-sex marriage, either in the State or the Federal constitution. It's an issue of social policy. It's something that, in a democracy, you have to convince a majority of your fellow citizens to embrace, if you want such a change enacted.

I don't object to your trying to convince a majority of your fellow Californians that your position is right. I only object to your assertion that you are unquestionably right.

DavidJustinLynch said...

The next step should be the US Supreme Court. The votes are there. Stevens, Souter, Ginsburg & Breyer are on board. As you will recall, Justice Kennedy wrote the opinion that struck down the criminalization of gay sex in Texas. There is already Federal case law that the right to marry is a fundamental right. The issue is whether that extends to same sex couples. There is also federal law that a state cannot prohibit interracial marriage. There is also a question of whether a state can use the religious traditions of any group as a basis for making laws affecting others. One can still make the argument in Federal Court that certain rights are so fundamental that they are not subject to a vote. I suggest that a case start in the Federal District Court so that the argument can be based on the US Constitution. The Federal bench in California is pretty good, particularly the Ninth Circuit.

Bruno said...

Perhaps, if Ken Starr and others would delve deeper into our founding documents, they would notice
1. We are not a DEMOCRACY, were never meant to be, we are a democratically elected REPRESENTATIVE REPUBLIC.
2. The branches of government are to protect the people from the Tyranny of Government, the majority and business.

I am not surprised that the fundamentalists are of the notion that our founding documents were created out of a perfect time of ideal conditions, a sort of Pollyanna state to be preserved in stone, After all isn't that what they do with the Bible? What appalls me is that the courts, and other branches of our government, and our educators and press are all so afraid of the tyrant mob that they refuse to stand for the ideals SET IN MOTION by the authors of our nation.

David said...

Susan, thank-you for this update- you've all been much in my prayers and practice, but at this distance 'news' of the hearing is generally little more than summaries- so thank-you.

Dale Francisco,I might suggest that struggle isn't about a 'fundamental right' for one specific group so much about the recognition of the Constitution's foundational truth that all people are created equal- both in the eyes of God, and of the Constitution... And about your feeble attempts to repackage Ken Starr's toxicity- sewage is sewage no matter how you try to gift wrap it DF, but then you might also take exception with the fact it's a Canadian making this observation DF.

Thanks Susan

David@Montreal

Suzer said...

"There is no "fundamental right" to same-sex marriage, either in the State or the Federal constitution. It's an issue of social policy. It's something that, in a democracy, you have to convince a majority of your fellow citizens to embrace, if you want such a change enacted."

Well, kind of -- but not exactly. The way this is phrased is a bit misleading.

There is a fundamental right to marriage, period. Over the years this right has been set out in case law, based upon Constitutional principles. Social policy has indeed shaped that fundamental right. For instance, one must have the capacity to contract -- thus, marriage has been limited to those of an age suitable to contract. Some states define that in different ways -- marriage might be available to 16 year olds in one state, 18 in another, or 14 in another. The "slippery slope" argument sometimes seen by those who oppose marriage equality is often stated in terms of "if we allow same-sex marriage, what comes next is pedophile marriages or human-animal marriages," which of course is a fallacy. Without the capacity to contract, one cannot marry under U.S. law, which necessarily excludes children and animals.

Social policy has led this country to restrict marriage to one couple, traditionally one male and one female. Plural marriage is not allowed. There are reasons for that social policy, protection of women from an abusive situation is one. However, it can be argued that plural marriage should be allowed under civil law where all parties have the capacity to contract, though I tend to believe there are still social policy reasons for restricting it. That's another argument for another time.

What we are dealing with is the question of whether a law-abiding citizen of this country should be allowed to marry the spouse of their choosing, without the imposition of religious law upon that choice. As a citizen of this country, the fundamental right to marry should apply equally to all those with the ability to contract. However, GLBT people are currently denied that fundmental right, as we are not allowed to marry the people we love, because we happen to be of the same sex. We are not being given equal protection of the laws of this country. Strangely enough, however, those twice or thrice divorced are allowed to marry, even though most religious leaders would (I think) object to that. Felons can marry, even child molesters and serial murderers can marry, as long as the couple is heterosexual. What we have here is a minority segment of society, despite their status as law-abiding taxpayers and citizens, being denied the right so freely given to heterosexual couples. That just doesn't make sense.

I don't really see this as a social policy issue, though of course some do. And, I certainly have an interest in the outcome so my position is somewhat biased.

There is a fundamental right to marry in this country. That fundamental right is being denied GLBT people. Unless the Constitution is changed to narrowly define marriage as between heterosexuals only, I see no way that courts can Constitutionally rule against same-sex marriage. It may not be in my lifetime, but I suspect equality will eventually happen.

Whether religious bodies choose to perform or solemnize same-sex marriages is up to them. I have no dog in that fight. I simply want access to the same rights and responsibilities as my heterosexual peers who are allowed to marry the spouse of their choice.

Bruce said...

The Chief Justice was willing to equate the right to marry with the right of free speech. That's probably a good thing. It is a little disturbing, however, that Dean Starr is willing to concede that the people, in their infinite wisdom (note the sarcasm here)can strip away all these rights through the initiative process and by a simple majority. If the Court agrees, it is time to revisit the ease with which the Constitution can be amended. The problem is the same here in Florida, where all kinds of silliness gets tagged onto the Constitution through a process similar to the one in California. Nonetheless, Dean Starr's casual acceptance of this "power of the people" doesn't do much to make me proud of my alma mater (no sarcasm here).

SUSAN RUSSELL said...

Bruce ... ABSOLUTELY! And there were some observers who felt they (the court) were laying the groundwork to encourage a revision of the inititative process -- which got us into this mess in the first place -- while at the same time using it as the excuse that the court's hands were tied because of it.

We'll see.

john said...

Susan, I would probably disagree with Ken Starr if I ran into him on the sidewalk and he said "good morning". However, he showed last Thursday how a skillful lawyer should conduct an oral argument (which isn't an argument at all; it's a Q & A session) and I fear that, with few exceptions, the attorneys for our side didn't.

You are absolutely right, the argument advanced by the other side and several members of the Court is that NO ONE'S RIGHTS ARE SAFE FROM THE WHIM OF A SIMPLE MAJORITY IN CALIFORNIA. That is absurd. It renders a written bill of rights meaningless or at least with no more meaning than a simple majority is willing to assign to it. By the reasoning of the Chief and several of his colleagues, I could propose an initiative defining "cruel and unusual punishment" to EXCLUDE hanging, drawing, and quartering and the Court would have no choice but to agree. That is the point our side should have made in their responses every single time they were presented with the opportunity.

Right now, we should be doing two things. First, we should begin working to reverse last November's result in November, 2010. When we win that, we should begin working to tighten up both the ballot initiative process and the way we amend our constitution in California.

SUSAN RUSSELL said...

Dale ...

You write: "There is no "fundamental right" to same-sex marriage, either in the State or the Federal constitution. It's an issue of social policy. It's something that, in a democracy, you have to convince a majority of your fellow citizens to embrace, if you want such a change enacted."

The issue is NOT about the fundamental right to "same sex marriage" but the fundamental right to MARRIAGE. The Court was NOT disagreeing about whether the right was fundamental ... it was parsing the "nomenclature" in what I experienced as a truly LAME effort to keep from having to do what they know is the right thing to do ... even if it puts them out on a limb.

And ... just for the record ... do you really imagine that if your argument about having to "convince the majority" before change is implemented to protect a minority's rights was in place we would have managed to move ahead AT ALL on Civil Rights Acts?

LGMarshall said...

I agree with D. Francisco... Same sex marriage is not a 'fundamental' right. In fact, it is fundamentally wrong to foist ones un-checked selfish desires on religous people. We cannot accept what our God teaches against. I imagine no 'argument' will ever win any one over. I really resent that the homosexual advocates have succeeded in infiltrating the California Public Schools. (It is very confusing and harmful for children to be offered this other choice in their formative years.) I have fought the schools on this for 10 years, and it is a battle worth fighting for. My son's high school recently featured a Gay artist from Los Angeles, who told the whole student body (1500 kids ages 13-18) about his gay art of 'only naked men'. His 'award winning' film he promoted, was about an elderly woman and her middle age son living together in an incestuous relationship, showing them in bed, and in the shower together. The filmmakers premise...'Suspend all judgement you bigots, judgement is wrong!'
My 15 year old son wants to quit school, he is so dejected about the fierce pro-gay agenda on campus. Secular people (& Episcoplaians) constantly complain about Church vs State... but they will be very sorry when ALL traces of our Bible based Judeo / Christian society are summarily dismissed. Why not focus on what you DO GET in a Judeo/Christian based society? (i.e., Freedom, euality, compassion, fairness, morals, kindness, dignity, protection of Life, etc.)

john said...

I don't believe the question is whether gay marriage is a fundamental right or not, I believe the question is whether marriage is a fundamental right or not. The U. S. Supreme Court has ruled it is.

Jim said...

Listening to justices' questions is not a good predictor of what the court will do. Often they are framing their questions to hear the objections they expect and the answers they will use for the opinion they favor. Lawyers do not think like other people do -- law school is all about how to think with precision logic.

FWIW
jimB

IT said...

The Catholic church does not approve or allow divorce or remarriage. Despite this, Catholics are able to accept that in the secular sphere others may divorce and remarry. They may not consider those religiously valid or "real" marriages, and they are free not to. But they manage to find a modus vivendi with a disagreeable civil policy without trying to deprive non-Catholics of the right to civil divorce.

Gay marriage is not an afront on religious conservatives any more than civil divorce is an affront on Catholics. Both may consider the civil marriage religiously invalid, and are free to do so. I am sick to death of people telling me that their religious freedom demands that I live by their religion's rules.

And morality does not derive exclusively from Judeo-Christian religion.

As for tasteless modern art, that is sadly independent of sexuality.

SUSAN RUSSELL said...

LG ... with all due respect -- and once again -- the argument being advanced is NOT that same-sex marriage is a fundamental right ...

... is it that MARRIAGE is a fundamental right ...

... and that it is fundamentally WRONG to discriminate against a percentage of Californians by excluding them from access to both the rights and responsibilities of marriage.

As for the rest of your issues -- well -- that's what the term "red herring" was invented for. Sorry about your son and -- for the record -- I'm not in favor of incest in general and films about it in specific.

But let's stay on topic here!

IT said...

I will take conservatives seriously about gays when they take the Bible seriously re. divorce.

Let's have a constitutional amendment on divorce. Then we can talk.

IT

Kate Murphy said...

Ah, but if the justices this spring uphold 8, the last thing we want is a hurried change that requires increased majorities for constitutional amendments. We'd never get 2/3's to repeal Prop 8!

Bruce said...

Jim is correct. The questions the justices ask, and even their demeanor, is not always an indicator of what they're thinking or if they are leaning one way or the other. Also, a poor presentation by the lawyer for a particular side will not necessarily doom his or her case, as the issues have been fully briefed and then researched by the Court's staff of law clerks.

It is purely anecdotal evidence, but one particular experience, which many other lawyers have shared, stands out. After 23 or so minutes (the red light had been on for a while) incessant questioning by the justices of the Florida Supreme Court, I walked out cautiously confident of victory. Although, as one friend who watched the argument on the FSU webcast said, I got "hammered pretty hard," the questions they asked certainly sounded like they agreed with me. If anything, the other guy got beat up pretty good, too.

When the decision came out (891 So.2d 492) I realized that they had, in fact, agreed with almost everything I said, except the bit at the end about who won.

The moral of this story is that it ain't over 'till it's over.

As for how lawyers think, I can't comment because I only know one way to think. If it is different from everyone else, I have to either credit or blame that fine institution where Ken Starr is currently dean.

IT said...

Two students are suggesting an initiative to convert ALL marriages in California to civil unions, regardless of gender. No more marriages for anyone from the state! If anyone wants to "marry" they can go have a separate religious ceremony that is legally meaningless.

I think this is a fine idea and surely the religious conservatives would agree.

IT said...

Agree with Kate. FIRST repeal H8. THEN reform the process.

You KNOW the enemy is going to try to pass a reform bill to trap us this way.

RonF said...

Mel should have asked that pastor his interpretation of John 8:3-11:

And the scribes and the Pharisees bring a woman taken in adultery; and having set her in the midst, they say unto him, Teacher, this woman hath been taken in adultery, in the very act. Now in the law Moses commanded us to stone such: what then sayest thou of her?

And this they said, trying him, that they might have whereof to accuse him. But Jesus stooped down, and with his finger wrote on the ground. But when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her. And again he stooped down, and with his finger wrote on the ground. And they, when they heard it, went out one by one, beginning from the eldest, even unto the last: and Jesus was left alone, and the woman, where she was, in the midst. And Jesus lifted up himself, and said unto her, Woman, where are they? did no man condemn thee? And she said, No man, Lord. And Jesus said, Neither do I condemn thee: go thy way; from henceforth sin no more.

Jesus did not say "Adultery is no longer a sin." What he asks us to do is to use compassion and love when following it, not hate and anger.

RonF said...

One can still make the argument in Federal Court that certain rights are so fundamental that they are not subject to a vote.

The idea of what is recognized as a right is ALWAYS subject to a vote. The adoption of the U.S. Constitution and it's various amendments were all subject to votes. The adoption of all the state Constitutions and their amendments was subject to a vote. In the end the recognition of individual rights and of the powers and obligations of the government are subject to the will of the people. The Federal Constitution was set up to ensure that what it recognizes as fundamental rights and powers cannot be easily changed, but the final word on what form they will take is up to the people, not the few hundred people in Congress, the person at the head of the executive or a few people wearing judicial robes.

I'll agree that marriage is a fundamental right, and that it is the proper thing for the courts to ensure that everyone has access to it. What I don't agree is that the courts have the right to change the definition of marriage from "a bond between a man and a woman" to "a bond between two people independent of sex". THAT'S the fundamental change that was made here, and it was done by the courts, not the people. The people have every right to reverse that.

RonF said...

As a citizen of this country, the fundamental right to marry should apply equally to all those with the ability to contract.

The law does apply equally to all those with the ability to contract.

However, GLBT people are currently denied that fundmental right, as we are not allowed to marry the people we love, because we happen to be of the same sex.

There is no fundamental right to marry the person you love. From the California Family Code Section 300:

Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).

There's nothing in California law that says that the right to marry has anything at all to do with love. It is neither required nor forbidden. There is no such thing as a legal right to marry someone you love because the law does not account for love at all. So therefore since the right does not exist under the law there is no legal reason it cannot be denied.

RonF said...

And as far as there being no religious basis for rights, read the Declaration of Independence. The philosophy that this country was founded on is that rights come from our Creator, not from governments. The government's job is to secure our ability to enjoy those rights.

Of course, it's true that the DoI is a philosophical document, not a legal one. But it's fair to hold it up and say "This is why our Constitution is worded as it is." When people have the final say as to what rights we should enjoy it is as American as the Declaration of Independence for them to consider what their religious faith tells them.

MarkBrunson said...

The idea of what is recognized as a right is ALWAYS subject to a vote.

Then, if enough people decide so, we can take away your right to be a conservative Christian. Good to know.

When people have the final say as to what rights we should enjoy it is as American as the Declaration of Independence for them to consider what their religious faith tells them.

Without any reference to those around them who do not share the same faith? That is not a society, but mob rule. We would do better with an absolute monarch.

Religious sectarianism can never build a community. No community, no nation.

It is the sort of senseless mob behavior a system of checks and balances was formed to counteract. You can do away with those checks and balances, but to do that, you must do away with the entire government.

MarkBrunson said...

My 15 year old son wants to quit school, he is so dejected about the fierce pro-gay agenda on campus.

Then, by all means, let him quit. True, he won't get far in life, but, then, if he can't accept that he's going to be around hostile, unpleasant people all his life, then he won't get far anyway.

I have to stand with a smile at my work and listen to racist, homophobic and just plain stupid speech from people I get paid to serve. I'm dejected. I have to share a world with idiots like this "artist" who fuel your fantasies about what gays are. Should I complain to my Daddy about how mean everyone is?

When your 15 year old starts complaining about his horrible life, tell him it's just a fact of life and he'll have to adjust.

I'm sorry to our host, Susan, if this is brutally harsh, but I have no patience for tugging heart strings with "pleeeease think of the children!" stories. Stop coddling them.

RonF said...

That is not a society, but mob rule.Mob rule is when a group of people lacking any clear right to authority impose themselves on others without following any procedure but strength of arms and without any representation as to whether their viewpoint is that of the majority. When a group of people follow a democratically created and approved procedure in a democratic fashion, it's called democracy, not mob rule.

Every right that the government is charged to secure has been so charged through a vote of the electorate either directly or through their elected representatives. The electorate is the final arbiter - not judges, not Presidents and not legislators.

uffda51 said...

Ronf, if you are going to continue to believe that homosexuals are simply sinful heterosexuals misbehaving, all the evidence provided by biblical scholarship, medical science and the voices of witness of the LGBT faithful and their families to the contrary, then I doubt that there is anything that will change your mind.

Likewise, LGMarshall (“it is fundamentally wrong to foist ones un-checked selfish desires on religious people”), if the above is considered a definition of homosexuality, in the 21st century, any attempt at dialogue seems pointless.

“Why not focus on what you DO GET in a Judeo/Christian based society? (i.e., Freedom, equality, compassion, fairness, morals, kindness, dignity, protection of Life, etc.)”

During the Bush/Cheney years? Really?

LGMarshall said...

God does allow Divorce in instances of adultery. At first he said NO, but then the selfish people begged for it, and God reluntantly Allowed Divorce.

(Adultery is not only sexual adultery, but could possibly include ('idolarty'- which is where the word adultery came from.) when one spouse puts something or someone above the marriage.... money, alcohol, drugs, gambling, etc.

Unfortunately, the Catholic Church sometimes veers away from simple bible teachings-- and perhaps they have in this case.

RonF said...

Ronf, if you are going to continue to believe that homosexuals are simply sinful heterosexuals misbehaving, all the evidence provided by biblical scholarship, medical science and the voices of witness of the LGBT faithful and their families to the contrary, then I doubt that there is anything that will change your mind.

What might change my mind is a comment actually addressing my point - which is that marriage is a bond agreed between a man and a woman. Even in a polygamous marriage what you have is multiple bonds between a man and multiple women. And while I would certainly agree that love is an important part of a marriage if it is to be successful, it's not anything that figures into the law - and a good thing too, unless you want the law to start determining whether two people love each other enough to get married.

What the opponents of Proposition 8 want is to make the self-proclaimed existence of love between two people the main focus of what the law defines as marriage, while discarding as non-essential the one constant that actually has been the core of marriage from the start of at least this country. That truly IS a fundamental change to the California Constitution - or any other one in the U.S. - and should not be left up to the judgement of 4 people in defiance of the electorate.

And in your response to LG Marshalls' comment of “Why not focus on what you DO GET in a Judeo/Christian based society? (i.e., Freedom, equality, compassion, fairness, morals, kindness, dignity, protection of Life, etc.)” of

During the Bush/Cheney years? Really?

Absolutely. These properties of Judeo/Christian based societies are far and away more prevalent and equitably distributed than they are under societies based on, say, Islam. Nothing that any recent American President has changed that.

MarkBrunson said...

Every right that the government is charged to secure has been so charged through a vote of the electorate either directly or through their elected representatives. The electorate is the final arbiter - not judges, not Presidents and not legislators.

Incorrect.

We are a representative republic, not a democracy. Thus, by our own constitutional process, the mob - and that is what they are - is not granted the authority you argue for.

Of course, perhaps I am mistaken in assuming you embrace Christian principles? Perhaps you believe in "might makes right?" In that case, it would be useless to continue showing you your error.

RonF said...

We are a representative republic, not a democracy. Thus, by our own constitutional process, the mob - and that is what they are - is not granted the authority you argue for.

It's true that the representatives make the immediate decisions about such things. As it should be - I much rather would live in a democratic republic than a pure democracy. But while the public is not the immediate arbiter of such things, they are the final arbiter. Depending on the particular state and circumstance they can elect representatives they find more amenable to their desires, they can put referenda and propositions on the ballot, etc. Eventually it all goes back to the electorate.

In California it can go rather more directly to the electorate than in some other states. But that's the law. It can be changed, or not, as the people and their representatives desire.