California Proposition 8

[Americano]

I'm sure everyone's aware of how the religious right, spearheaded by Mormon financial backers from Utah, has passed a popular vote outlawing same sex marriage in California. Deceptive advertising, blatant lies and threats of belief system rejection were used to motivate the voting public in passing this piece of discriminatory trash, but the fat lady ain't sang yet.

Under CA charter this proposition is not only an act of discrimination, it amends the state constitution without the required two-thirds vote by the legislation to support it and defies a recent CA supreme court decision permitting same-sex marriage. The lawyers are lining up in force.

The most common defense by supporters of prop 8 is the people have spoken and the will of the people must be obeyed. The obvious retort to that statement being a parallel with states where the will of the people created segregated schools, segregated public facilities and laws against interracial marriage. We all know the eventual conclusion of those actions.

While I'm not a believer in the power of Internet petitions, yet, the following petition is offered as a show of support for those pursing the repeal of prop 8:

http://www.couragecampaign.org/page/s/repealprop8

[Michael]

Would anyone be kind enough to list some California zip codes... (the only one I know is 90210 and that's tacky).

I'm thinking that a bunch of non-California people signing the petition doesn't mean much. The petition just asks for an email address and a zipcode. I'll sign it with a Cali zip code if anyone can give me a functional one. I'll also throw a few bucks in the pot for a good cause. :)

[Americano]

Would anyone be kind enough to list some California zip codes... (the only one I know is 90210 and that's tacky).

I'm thinking that a bunch of non-California people signing the petition doesn't mean much. The petition just asks for an email address and a zipcode. I'll sign it with a Cali zip code if anyone can give me a functional one. I'll also throw a few bucks in the pot for a good cause. :)

Here ya go:

http://www.laalmanac.com/communications/cm02_communities.htm

Or, if you prefer to be 'from' Northern California:

http://www.dqnews.com/Charts/Monthly-Charts/SF-Chronicle-Charts/ZIPSFC.aspx

[Michael]

Berkeley sounds good! I've always liked the old Bishop. :D

[Americano]

What really pissed me off were the religious interests, Mormons in particular, using their money and influence to push a political agenda. Their 501c status should be stripped.

[Michael]

What really pissed me off were the religious interests, Mormons in particular, using their money and influence to push a political agenda. Their 501c status should be stripped.
Yes, this seems to be an increasing problem in the US - permitting religious organizations engage in overtly political acts, yet they are tax-shielded.

Either one is a 'tax-free' religion, or one is a 'political' group organized for activism. Can't be both.

I'm also a bit surprised that California permits a ballot initiative to be financed by out-of-state groups. That seems unusual. So can the Canadian (or Chinese) government finance a ballot initiative in California?

[Americano]

Yes, this seems to be an increasing problem in the US - permitting religious organizations engage in overtly political acts, yet they are tax-shielded.

Either one is a 'tax-free' religion, or one is a 'political' group organized for activism. Can't be both.

I'm also a bit surprised that California permits a ballot initiative to be financed by out-of-state groups. That seems unusual. So can the Canadian (or Chinese) government finance a ballot initiative in California?

Only if the initiative is blessed by Catholics, evangelicals and Mormons:

http://www.nytimes.com/2008/11/15/us/politics/15marriage.html?_r=1&pagewanted=2&em&oref=slogin

[bug]

I am so unhappy about this. I've been having an ongoing e-argument with an aquantaince in response to one of my social website rampages about this. I said that we'll be looked at by children/children's children as cavemen for not having gay marriage, in the same manner we look at blacks being slaves and women not having the right to vote. He gave me the ol' "If we allow this, then poligamy, marrying refrigerator, marry 8 year old cousin, debauchery, BLAH BLAH"--I'm sure you know the slippery slope standard drill. A "Nuh-uh", "Yeah-huh" verbal ping-pong game ensued and it resulted in me saying "I bet you that in 5-10 years, gay marriage will be recognized nationally and we will have, on the whole, fully accepted it in society." The next day, I got an email from him with a link to this Proposition 8 deal. I am upset that we seem to be going backwards. I am frustrated that people are always so afraid. And the thought of religion-tainted money funding this social recession is nauseating.

[drgoodtrips]

"Proposition 8" and its ilk are simply political gamesmanship for the time being. Anything enacted in some state, by a slim majority is able, later, to be subject to that same slim majority. Give it a couple of years, let a few of the "nay" voters die, and viola! It's reversed.

I don't think that you're going to start to see the real fireworks on this issue in the US until DOMA is challenged in the Supreme Court. The rest of these statewide referendums and whatnot reek of irrelevant values voter pandering and jockeying.

[partofme]

Looks like James Dobson threw everything financially at this.

http://coloradoindependent.com/15287/after-pumping-money-into-prop-8-focus-on-the-family-announcing-layoffs

[Michael]

"Proposition 8" and its ilk are simply political gamesmanship for the time being. Anything enacted in some state, by a slim majority is able, later, to be subject to that same slim majority. Give it a couple of years, let a few of the "nay" voters die, and viola! It's reversed.
Yes, it is simple demographics. We seen it coming in Canada (along with liberalized pot) for years. Over 65's and under 35's have opposite political opinions on these topics. Wait five or ten years and the 'anti-gay marriage' issue just dies out completely.

I don't think that you're going to start to see the real fireworks on this issue in the US until DOMA is challenged in the Supreme Court. The rest of these statewide referendums and whatnot reek of irrelevant values voter pandering and jockeying.
Gay marriage seems to have a very strong track record in court-challenges in just about every western country. It is the legislatures and the voters who balk at it, never the courts.

[Americano]

Looks like James Dobson threw everything financially at this.

http://coloradoindependent.com/15287/after-pumping-money-into-prop-8-focus-on-the-family-announcing-layoffs

I like the name of the anti-Prop 8 group, Californians Against Hate. (http://californiansagainsthate.com/)

[Americano]

Yes, it is simple demographics. We seen it coming in Canada (along with liberalized pot) for years. Over 65's and under 35's have opposite political opinions on these topics. Wait five or ten years and the 'anti-gay marriage' issue just dies out completely.


Gay marriage seems to have a very strong track record in court-challenges in just about every western country. It is the legislatures and the voters who balk at it, never the courts.

My gay friends are saying keep it at a state level until SCOTUS (US Supreme Court) has the expected appointments. They're prepared to wait 2-3 years and do it right, as long as pressure is maintained at state levels.

I think that's decent strategy. State by state opposition will become very expensive to fund for organized religion and state governments. The fundies pulled out all the stops for CA, especially Utah. And there are still legal challenges to prop 8.

[Michael]

My gay friends are saying keep it at a state level until SCOTUS (US Supreme Court) has the expected appointments. They're prepared to wait 2-3 years and do it right, as long as pressure is maintained at state levels.
Yes, a couple of new appointments could really change things at SCOTUS. They are pumping out lots of 5-4 decisions these days. That's not good.

I think that's decent strategy. State by state opposition will become very expensive to fund for organized religion and state governments. The fundies pulled out all the stops for CA, especially Utah. And there are still legal challenges to prop 8.
Yes, that's exactly how it played out in Canada. First the BC court victory, then Quebec, then Ontario. Once Ontario and Quebec went, all pressure turned on the Federal government to challenge it or support it - the feds decided to back down and let it stand. A year later, the feds pass the law that carries it across all the provinces.

Once major 'gay marriage' court victories are won in California, NY and Florida (or other large states), then the issue gets forced up to SCOTUS and by that time, it will probably stand. SCOTUS is a political body after all - it tends to follow public opinion trends. ;)

[dilettante]

Yes, a couple of new appointments could really change things at SCOTUS. They are pumping out lots of 5-4 decisions these days. That's not good.


I'm not sure an Obama administration is likely to do more than maintain present balance, at least wrt to social issues. Barring unexpected deaths/retirements, Stevens is likely the next to go; he's 88, for crying out loud, and there were rumors of his retiring even before the election. He may just be holding out until Obama takes office. After Stevens Ginsberg is the next oldest, at 75.

The oldest solidly right-leaning judge is Scalia, at 72, and I can't imagine anything short of death itself removing him from his chair with a democrat in the Whitehouse.

If Obama wins re-election in 2012 he might stand a chance of replacing Kennedy or a deceased Scalia, but I doubt he'll be able to do more than change the status-quo in this coming term.

[dilettante]

This whole Prop. 8 battle just gets more and more intriguing. Now the CA Supreme Court (the same court that struck down the gay marriage ban and prompted the creation of Prop 8) has agreed to hear arguments against it.

http://www.signonsandiego.com/news/state/20081120-9999-1n20court.html

It looks like oral arguments could begin in March.

I think this whole issues raises all sorts of interesting questions about the nature of democracy, the power of courts, the meaning of constitutions, and the power of language. All of this is essentially being done over something as ethereal as word-choice and a sense of public approval. As I understand it, the legal differences between marriages and "civil unions" are negligible, but I bet there are people on both sides literally willing to die to see the word "marriage" given the meaning they want it to have.

From a detached, this-dosn't-really-impact-me-at-all point of view, its really fascinating.

[Michael]

This whole Prop. 8 battle just gets more and more intriguing. Now the CA Supreme Court (the same court that struck down the gay marriage ban and prompted the creation of Prop 8) has agreed to hear arguments against it.

http://www.signonsandiego.com/news/state/20081120-9999-1n20court.html

It looks like oral arguments could begin in March.

I think this whole issues raises all sorts of interesting questions about the nature of democracy, the power of courts, the meaning of constitutions, and the power of language. All of this is essentially being done over something as ethereal as word-choice and a sense of public approval. As I understand it, the legal differences between marriages and "civil unions" are negligible, but I bet there are people on both sides literally willing to die to see the word "marriage" given the meaning they want it to have.

From a detached, this-dosn't-really-impact-me-at-all point of view, its really fascinating.
No doubt about it, the core issue has nothing to do with marriage and everything to do with "society should/should-not officially accept gays".

That's the real framing here and the core of the fight.

[Donkey]

There's something that's been bothering me a little bit. It's all of the uproar I am hearing around here about those evil people in Khalifornia banning gay marriage. Do I disagree with Prop 8? Sure as shit I do, and I'll come out and say it.

But holding proposition 8 protests across the country? There seems to be something missing. Maybe it's that states like, oh, I don't know, Ohio, have also banned gay marriage, but what are we going to do? Protest proposition 8 because how dare those yuppie hippie pinko west coasters engage in discrimination?

So yeah, go protest, but to hell with protesting proposition 8. Protest the Ohio gay marriage ban. I think there's something to be said about cleaning up shit in your own back yard, not necessarily first, but at least simultaneously.

[Michael]

There's something that's been bothering me a little bit. It's all of the uproar I am hearing around here about those evil people in Khalifornia banning gay marriage. Do I disagree with Prop 8? Sure as shit I do, and I'll come out and say it.

But holding proposition 8 protests across the country? There seems to be something missing. Maybe it's that states like, oh, I don't know, Ohio, have also banned gay marriage, but what are we going to do? Protest proposition 8 because how dare those yuppie hippie pinko west coasters engage in discrimination?

So yeah, go protest, but to hell with protesting proposition 8. Protest the Ohio gay marriage ban. I think there's something to be said about cleaning up shit in your own back yard, not necessarily first, but at least simultaneously.
I disagree. That Ohio voted to ban it is half-expected. Ohio overturning that ban wouldn't change nothing.

But California is recognized as the leading bastion of liberalism in the USA - if it can't pass in California, it can't pass anywhere. Overturning it in California sets the stage for it to be overturned elsewhere. California is the bellweather on liberal issues. That's just a fact of US political geography.

So fighting the ban in California makes sense. You can never get the ban in Ohio overturned until the California one is overturned first.

In Canada's fight on the same issue, BC served the same purpose - BC is Canada's most liberal province. One has to win there FIRST before you can win the heartland.

Once California and NY State both have legal same-sex marriage, it is only a matter of time for the rest of the USA.

[Donkey]

I disagree. That Ohio voted to ban it is half-expected. Ohio overturning that ban wouldn't change nothing.

But California is recognized as the leading bastion of liberalism in the USA - if it can't pass in California, it can't pass anywhere. Overturning it in California sets the stage for it to be overturned elsewhere. California is the bellweather on liberal issues. That's just a fact of US political geography.

So fighting the ban in California makes sense. You can never get the ban in Ohio overturned until the California one is overturned first.

In Canada's fight on the same issue, BC served the same purpose - BC is Canada's most liberal province. One has to win there FIRST before you can win the heartland.

Once California and NY State both have legal same-sex marriage, it is only a matter of time for the rest of the USA.

Ok, I certainly see your point. I was referring more to the tone of moral indignation that I'm hearing from my liberal college buddies. It's not that I disagree with them, they just seem to be forgetting something... :erm:

[Michael]

California's Proposition 8 essentially denies equal marriage rights to a particular segment of the citizenry of California.

If this Proposition were passed in Canada, one could expect a 'Charter Challenge' all the way up to the Supreme Court on this legislation. If this were to happen, the Canadian Justices would inevitably address the issue in terms of the Oakes Test.

The Oakes Test (http://en.wikipedia.org/wiki/R._v._Oakes) is probably Canada's most significant contribution to constitutional jurisprudence in the last half century or so. The Oakes Test is used to determine if any given legislative act that imposes a violation of rights or freedoms can be demonstrably justified in a free and democratic society.

In order to determine if any given rights-violating legislation is reasonably justified, it must meet ALL of the following tests:

1. The legislation must serve collective goals of fundamental importance.
2. The measures adopted must be carefully designed to achieve the objective in question.
3. The measures adopted must not be arbitrary, unfair or based on irrational considerations.
4. The measures adopted should impair the right or freedom in question as little as possible.
5. There must be a proportionality between the effects of the measures proposed and the objective.

As an exercise in political and legal reasoning, I propose to examine California's Proposition 8 under the Oakes Test to see if this law ought be considered 'constitutional'.

1. The legislation must serve collective goals of fundamental importance.

Proposition 8 ostensibly serves the goal of limiting the sanctity of marriage to opposite-sex couples.

Is this a goal of fundamental importance? Personally, I think not. There is no crisis here, there is no physical suffering, no physical damage and no physical harm occurring to which the law seeks to address, limit or end. I conclude that Proposition 8 fails the 1st test.

2. The measures adopted must be carefully designed to achieve the objective in question.

The measure adopted consists of banning legal certification of same-sex marriage. This measure is clearly designed to achieve the objective in question. No other method of application could achieve the legislative goal in question. I conclude that Proposition 8 passes the 2nd test.

3. The measures adopted must not be arbitrary, unfair or based on irrational considerations.

The measure adopted is not arbitrary. It may be unfair or based on irrational considerations, but it is not arbitrary. That is to say, the means and the ends are in agreement. I conclude that Proposition 8 passes the 3rd test.

4. The measures adopted should impair the right or freedom in question as little as possible.

The measure adopted purports to limit ONLY the legal certification of same-sex marriages. I don't see how any other measure could achieve the legislative policy goal by any lesser means. I conclude that Proposition 8 passes the 4th test.

5. There must be a proportionality between the effects of the measures proposed and the objective.

The measure adopted (banning legal recognition of same-sex marriage) is proportional to the objective of banning same-sex marriage. I conclude that Proposition 8 passes the 5th test.

In conclusion, Proposition 8 appears to pass 4 of the 5 parts of the Oakes Test. However, one must pass ALL five tests in order for legislation that violates any right or freedom to be demonstrably justified in a free and democratic society. Ergo, Proposition 8 ought to be struck down, pending California's re-writing of the law to demonstrate that the law serves a collective issue of fundamental importance. To do this, one must show that not passing the law will result in some significant problem. The law must NEVER be given the benefit of the doubt.

Any thoughts on this?

[dilettante]

California's Proposition 8 essentially denies equal marriage rights to a particular segment of the citizenry of California.

If this Proposition were passed in Canada, one could expect a 'Charter Challenge' all the way up to the Supreme Court on this legislation. If this were to happen, the Canadian Justices would inevitably address the issue in terms of the Oakes Test.

The Oakes Test (http://en.wikipedia.org/wiki/R._v._Oakes) is probably Canada's most significant contribution to constitutional jurisprudence in the last half century or so. The Oakes Test is used to determine if any given legislative act that imposes a violation of rights or freedoms can be demonstrably justified in a free and democratic society.
...
Any thoughts on this?

I'm not a supporter of Prop 8, but I'll play devil's advocate (ooh, that sounds like a good smiley to add!):

The Oakes Test is not applicable because Prop 8 does not deny rights or limit individual freedoms. The only restrictions created by the amendment are restrictions on the state: the state is restricted from issuing marriage licenses to homosexual couples.
Legal marriage is not a fundemental right: to demand to be legally married is to demand that the state act in a particular way, not that it allow you to act in a particular way. In refusing to grant a marriage license, the state is refusing to grant particular benefits to some individuals, but it is not restricting their freedom to act or express themselves as they see fit.
For example: If the state decided to give $100 to everyone except professional window-washers, it would not mean that the window-washers' "right to $100" had been violated: there is no such right. Such an action would certainly be discriminatory, but it would not be a matter of personal rights or liberty.
So too with Prop 8, it is blatantly discriminatory, but it is not a matter of personal rights or freedoms. Consequently, the Oakes Test does not apply.

[Michael]

I'm not a supporter of Prop 8, but I'll play devil's advocate (ooh, that sounds like a good smiley to add!):

The Oakes Test is not applicable because Prop 8 does not deny rights or limit individual freedoms. The only restrictions created by the amendment are restrictions on the state: the state is restricted from issuing marriage licenses to homosexual couples.
Good point about the smilie! ;)

And yes, your statement is generally true in those terms. But it is the right of civil equality that is violated and that's a different matter.

Legal marriage is not a fundemental right:
I'll certainly agree with you on that point.

But it is a violation of one's right of equal treatment and equality before the law, for the state to deny marriage to a specific class of persons without showing due cause of some actual 'harm'.

So too with Prop 8, it is blatantly discriminatory, but it is not a matter of personal rights or freedoms. Consequently, the Oakes Test does not apply.
Well, the Oakes Test wouldn't apply to any US Court, though it certainly could be referenced or cited. ;)

I'm just playing with the idea here since I find the Oakes Test to be interesting in itself and I'm curious how useful it might be for analysis if applied outside of the context of Canadian constitutional issues. It seems like a pretty good rule in practice.

Anyway, I think the key issue is the 'equality of civil rights' angle. That's arbitrary discrimination and shouldn't be permitted under the rule of law. That's what the Courts are for.

Speaking of which, I'd expect that if the Court struck down a 'referendum' or plebicite (such as Proposition 8 was), the People would have every right to re-vote the same (or modified) bill back into law. That's messy, but that's our democratic system. The Courts and the People could keep going back and forth like that until one side gives. The key point here is that it is the Legislature's duty to address the law in question.

[Americano]

Good point about the smilie! ;)

And yes, your statement is generally true in those terms. But it is the right of civil equality that is violated and that's a different matter.


I'll certainly agree with you on that point.

But it is a violation of one's right of equal treatment and equality before the law, for the state to deny marriage to a specific class of persons without showing due cause of some actual 'harm'.


Well, the Oakes Test wouldn't apply to any US Court, though it certainly could be referenced or cited. ;)

I'm just playing with the idea here since I find the Oakes Test to be interesting in itself and I'm curious how useful it might be for analysis if applied outside of the context of Canadian constitutional issues. It seems like a pretty good rule in practice.

Anyway, I think the key issue is the 'equality of civil rights' angle. That's arbitrary discrimination and shouldn't be permitted under the rule of law. That's what the Courts are for.

Speaking of which, I'd expect that if the Court struck down a 'referendum' or plebicite (such as Proposition 8 was), the People would have every right to re-vote the same (or modified) bill back into law. That's messy, but that's our democratic system. The Courts and the People could keep going back and forth like that until one side gives. The key point here is that it is the Legislature's duty to address the law in question.

Prop 8 is a voter amendment to the California Constitution, which also requires a two-thirds legislative majority. That's not in place, which kicks it right back to the CA supreme court who had already ruled against excluding same sex unions from marriage as discriminatory. If the CA legislature did condone the conditions of prop 8 it would be the equivalent of the Alabama voters and legislation approving of school segregation and push the issue up to a SCOTUS hearing.

[dilettante]

Prop 8 is a voter amendment to the California Constitution, which also requires a two-thirds legislative majority. That's not in place, which kicks it right back to the CA supreme court who had already ruled against excluding same sex unions from marriage as discriminatory. If the CA legislature did condone the conditions of prop 8 it would be the equivalent of the Alabama voters and legislation approving of school segregation and push the issue up to a SCOTUS hearing.

Actually in CA, the constitution can be amended through actions like Prop 8, even without the legislature. However, the constitution cannot be revised (which is apparently like amending but more serious) with the legislature. Thus, the court is only deciding whether this change is an amendment or a revision.

I'm not sure, but I think CA is relatively rare in that it allows for the constitution to be changed at all without the legislature playing a part.

[Americano]

Actually in CA, the constitution can be amended through actions like Prop 8, even without the legislature. However, the constitution cannot be revised (which is apparently like amending but more serious) with the legislature. Thus, the court is only deciding whether this change is an amendment or a revision.

I'm not sure, but I think CA is relatively rare in that it allows for the constitution to be changed at all without the legislature playing a part.


That's interesting. I wasn't aware of the difference or that their constitution could be amended by popular initiative. Is the current CA court composition deemed liberal or conservative?

[Michael]

Any thoughts on the current court case/decision?

Personally, I think the whole thing is a mess. A bare 50% majority on a plebicite is used to modify the constitution by taking away legal rights from citizens? That's wrong.

A court overturning the will of a 50% majority plebicite? That's wrong too.

Fact is, California legally granted marriage to several thousand people under their same sex marriage law. I think a high legal bar needs to be raised against taking away any right that is legally granted, but the one used is the lowest possible 'bar' to such action.

Problem is with politics in California, just about everything is so fucked up and impossible to understand that discussions about Proposition 8 and/or the California budget process are just too weird to make sense of in any context outside of California.