gay marriage in california: a victory for democracy

...and a prime example of why democracy is seriously overrated. It's a means, not an end, people.

My understanding (which is admittedly limited) is that the CA Supreme Court could really only rule on whether Prop 8 was a constitutional change to CA's constitution or not. And I'm pretty sure that it is.

So to recap: if you're gay in California and pissed off (or even if you're neither but still pissed off) you should blame the people of California, not the courts. And you should give serious consideration to moving your talent and tax revenue to Iowa.

And if you're in California and happy your fine state is keeping the queers down a little longer, you should keep in mind that California has a clearly established legal precedent that your rights under the law can be abridged by a mere majority vote of the people. Have fun with that.


Gino said...

all your comments, of course, are based on a false premise that state-sanctioned marriage is a right.

Dave said...

I'm not sure how you conclude that people are entitled to civil marriage? Civil marriage recognizes society's preferred living arrangement for adults - it doesn't prohibit being single, or cohabitating, or being gay. It just doesn't reward them. And government routinely rewards preferable behavior; tax deductions are the most obvious example. So I would think that civil marriage is not constitutionally protected.
I would have thought that you would be more concerned about California's Supreme Court than about whether gay people can be married. I have no problem with gay marriage, per se; but I have a significant problem with it being imposed by judicial fiat. I take extreme offense that the California Supreme Court, all of who's members have taken an oath to support and defend the Constitution of the state of California, would *think* that they were ever in a position to rule on the legitimacy of a duly approved constitutional amendment. While I am no fan of direct democracy and the initiative process and would tend to agree that it should take more than a majority vote to pass a constitutional amendment in California, the fact is that with the adoption of Prop 8, the California Constitution prohibits gay marriage, thus there is no way for any court to even consider the constitutionally of gay marriage in California. Why the California Supreme Court even agreed to hear challenges to a constitutional amendment under the guise of that amendment meeting some constitutional muster reveals that the justices believe that they have some role outside of judicial review in crafting policy. And that is a *much* worse trend for freedom loving Americans than any discussion of gay marriage.

Brian said...

Gino--I am not asserting a right to civil marriage. I stating that as long as there is a civil institution of marriage, the principle of equal protection under law should apply.

Brian said...

Dave--Is it possible that the CA supreme court could have taken the case as a chance to rule on the ballot initiative process itself? Because it seems to me that the real outcome of this ruling is that any change can be made to the CA constitution by ballot initiative. Which seems like a really bad idea to me, but hey, it's your state...

I'm just asking...I wouldn't presume to know their motives for agreeing to hear the case.

Gino said...

equal protection cannot apply to civil marriage by the very nature of discrimination and regulation built into the idea.

close relations may not marry.

mulsims are only permitted one wife.

you must be of legal age, or not, depending on parental consent. and it varies from state to state.

there are blood tests that must be passed.

it goes on and on...

as long as nobody is denied the act of living happily ever after with whomever is willing to engage with them, then there is no discrimination.

civil marriage is merely an imprimatur from the local collective on certain behavior that usually serves as a double edged sword. nobody has a right to it.

Brian said...

Age restrictions are a different animal. You have to be at the age of majority to enter into a contract.

I'm against every other restriction you mention, for exactly the same reason.

Dave said...

First, I haven't stepped in California since 2003 so I'd hardly call it "my state." My still voting there is entirely a (legal) tax avoidance mechanism. My understanding of California is that the recall, referendum, and initiative process is part of the state's constitution - instituted around 1911 as populist/progressive reform. I think this story ( http://www.economist.com/world/unitedstates/displaystory.cfm?story_id=13649050 ) discusses this some.

In short, I don't like courts trying to use the power of judicial review to resolve political/social conflicts. It generally doesn't work out well - perhaps the only time it did was in Brown v. board of ed. Certainly judicial interferrence made things worse in slavery (Dred Scot) and abortion and school busing, etc. etc. As a corollary, I am increasingly concerned of the Left's tactic of suggesting anyone who opposes their political agenda is not a critic but a bigot. (See Miss California silliness, for example) I would think this is largely promoted by discussions of rights instead of discussions of compelling political arguments.

Brian said...

I was ribbing you about Cali being your state...

I am honestly pretty indifferent to "judicial activism" per se. Sometimes it leads to a net benefit (Brown, as you mentioned)) and sometime not so much (Scott being a fine example.) Strict constructionism in and of itself is only as virtuous as the constitution is perfect...which it ain't. The original constitution allowed for freaking slavery, for crying out loud. The judiciary can (and I think should) serve as a check on the excesses and whims of democracy, which history suggests is fundamentally anti-libertarian on balance.

Which was really the main point I was trying to make with this post.

Gino said...

and shouldnt democracy also serve to check the whims and excesses of a judiciary, which has shown to be just as anti-libertarian?

of course.

and that is what happened here.

do you really think mothers should be allowed to marry sons?

as for age restrictions and contracts: some states even allow for 15/16 yr olds to marry if they are pregnant, without parental consent.

Brian said...

and shouldnt democracy also serve to check the whims and excesses of a judiciary, which has shown to be just as anti-libertarian?

of course.

and that is what happened here.
Well, sure. The only difference is that you like the outcome, and I don't. I think you're conflating my support for gay marriage with the larger point I was trying to make here. I think the CA supreme court ruled correctly, insofar as what they were doing was addressing the constitutionality of the manner in which CA's constitution has been changed.

My point is that Prop 8's proponents ought to consider the larger implications of the beast that they have further empowered. It seems to me that there is no barrier whatsoever to Californians voting themselves a constitutional right to state health insurance, or universal housing, or whatever.

Or for passing a law prohibiting the marriage of men with Italian or Polish surnames to blonde women.

do you really think mothers should be allowed to marry sons?Do you really think mother-son marriage is a big enough plague on our society to justify legislation?

as for age restrictions and contracts: some states even allow for 15/16 yr olds to marry if they are pregnant, without parental consent.Yes, and that is foolish. A 15 year old is not competent to enter into a binding contract, functional plumbing notwithstanding.

Dave said...

I would agree that the initiative process in California is out of hand. They come in two flavors - restrict taxation and compel spending. So over the last 30 years California voters have managed to make it nearly impossible for the state to tax them while also demanding a host of very expensive projects - last year's election ballot included approx 15 initiatives, most requiring spending or borrowing. So yes I would agree that direct democracy isn't a great idea.

Gino said...

Dave: no doubt, CA is broken beyond repair, as i've recently posted about.

but, there are few 'restrict taxes' ones, but there are also the occasional 'tax me more' initiatives, that pass too often.

the initiave process wouldnt be bad, and may be the positive good it used to be, if they would just outlaw the paid signature process.

anything can make it on the ballot if you have the money to pay people to collect the signatures.
its a bastardization of the process, and against the original intent of those who put it into place.
prop 13 was done purely grass roots, no money was paid. but that was the good old days.
also, the legislature can put an initiative on the ballot with a simple majority vote. these usually cause more mayhem just on their own.

brian: a law forbidding men with italian surnames from marrying blondes could have been my ultimate salvation. where is the law when i needed it the most.

Brian said...

Gino-heh. Not the state's job to save us from ourselves, doncha know?

chris said...

Brian said... The original constitution allowed for freaking slavery, for crying out loud.Did it really "allow" it as much as it didn't restrict or ban it outright? Omission doesn't quite pass for allowance. Under the 10th amendment it would seem that the states were reserved the duty to protect the individual, regardless of superficial differences. It's mostly unfortunate that more states didn't choose to do the right thing, but it's more impressive that a good many of them did.

Brian said...

Article I, section 2:

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

"All other Persons" = slaves. The Constitution didn't institute slavery, but the 3/5ths compromise is an implicit acceptance of the institution.

Gino said...

as is mention of 'free persons' as opposed to just 'persons'.

Brian said...

Yes, that too.