Prop 8: The Constitution as a One-Way Liberal Ratchet
Troy, beat me to the punch (see below). But since I won't be on Law Talk, let me offer a few quick observations.
As I said yesterday, my expectations were low. The opinion is written by Judge Stephen Reinhardt, one of the most liberal judges in America, who has twice declared the Pledge of Allegiance unconstitutional, most recently in 2010, describing the Pledge as a system of state "indoctrination" of religion. Also, as KC commented yesterday, this decision is probably an interim step before SCOTUS weighs in -- quite possibly before the 2012 election (Ed Whelan at Bench Memos agrees). If that happens we'll have the perfect trifecta this summer and fall: ObamaCare; the Arizona Immigration Law; and Prop 8!
But anyway. The decision pretends to be a narrow one. Because California had previously allowed gays to marry, and because the Domestic Partnership law grants equivalent rights to same sex couples, the State cannot now take rights away from homosexual couples. The Court leaves open the (hypothetical) possibility that a State that never allowed gays to marry could continue to restrict marriage to heterosexual couples. On this reasoning, the Constitution is a one-way liberal ratchet; once a State confers a "right" then the People can never revoke it; even if supported in two statewide referenda. This is the same reasoning that lead the Warren Court to attempt to turn welfare benefits into a constitutional "property right" that could not be revoked without due process.
Moreover, the language of the Ninth Circuit makes it very clear that the majority (2 judges) believe that gay marriage can never be prohibited or limited. Prop 8 does "nothing more" than strip same-sex couples of the right to use the designation "marriage" to describe their union, says Reinhardt, and there can be "no legitimate reason" for such a law, said Reinhardt. Therefore, it is an irrational law that "adversely affects the status and dignity of a disfavored class."
This is poppycock on stilts. First, the law does not strip anyone of the right to use the term "marriage." The First Amendment protects anyone's right to refer to another person as his/her spouse, and it allows any clergyman to perform a same-sex ceremony. The law prohibits the State from using the nomenclature "marriage" to describe a same-sex relationship. No legitimate reason? How about: the twice-expressed opinion of the majority of California voters? Are California voters anti-gay? No. The same electorate also approves of the Domestic Partnership law that guarantees all state benefits to same-sex couples. But, unlike judges, the people of California might just have a sense that the word "marriage" has cultural significance. And in their exercise of representative government, they opted to maintain the traditional significance of marriage (and no, Tommy, that doesn't necessarily mean coverture).
Second, the decision assumes its conclusion: that the "right to marry" is a fundamental right that belongs to all people. Yes, California previously issued marriage licenses to same-sex couples -- but why does that get etched in stone as a "right?" State issued marriage licenses are better seen a privilege; the State can change the ground rules without violating the Constitution.
Third, if the "right to marry" applies to all consenting adults, then (caution: slippery slope alert), then I do not see any "legitimate" reason for a State to maintain laws against incest and polygamy (see the current pro-polygamy lawsuit championed by George Washington Law Professor Jonathan Turley). Certainly, the practitioners of incest and polygamy are "disfavored" in our society. How can we deny them their dignity?
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Dec '10
Re: Prop 8: The Constitution as a One-Way Liberal Ratchet
Cutlass
Personally, I don't think gay marriage is the end of the world. However, I will vehemently oppose it so long as the issue a vehicle to establish the absurd notion that sexual orientation equates a protected class and anyone who disagrees should be ostracized from the public square as a vile bigot. ยท 49 minutes ago
I agree with you. If Vermont wants to issue its marriage licenses to couples of the same sex and it isn't imposed by a court under "rights", I'm not so concerned. It's parodic and a mockery of a cross-cultural institution, but there are worse things eroding our culture.
The courts, however, discolored this whole thing. If it's a right, then we will have plural marriage. Period. We'll also have to permit incestuous marriage. It's a "right".
People lauding this decision are:
Apr '11
Re: Prop 8: The Constitution as a One-Way Liberal Ratchet
The debate over gays has been patently absurd on so many levels. Now, culturally we've moved to a point where people who want to exercise their right to live an openly homosexual lifestyle can do so without being shunned from society. That's fantastic, and it makes me proud as an American that we can live and let live. Gays could have easily petitioned their fellow citizens for perfectly reasonable reforms, like hospital visitation. Gays would have been just another ho-hum segment of society.
Instead, vicious LGBT groups had to drag everyone into this asinine national conversation about "gay rights," poisoned with anti-Christian bigotry and vile attacks on the decency of over 50% of the nation. And it's not just marriage. We have to ignore modern science, 100 years of psychological scholarship, and common sense to swallow the dogma that homosexuality is a biological trait on par with race - otherwise, we're just filthy bigots.
It's worth noting that Martin Luther King was ten times more respectful towards racist segregationists than the LGBT activist are towards the average American who happens to disagree on the definition of the word marriage.
Edited on February 8, 2012 at 3:36pm