The Prop 8 Decision: Legalese vs. Equality
heThe other day I wrote that Prop 8 was a masterstroke of evil and legalese. After reading the CA Supreme Court's decision last night, I suspect that some of the Justices would agree with me. There are several times in the document where the Justices note that they had to put their personal feelings aside and look strictly at the legality of Proposition 8. However, in their sticking to the letter of the law they legalized discrimination, and did so knowingly as is made obvious in the dissenting opinion by Justice Moreno.
There were two sticking points that made Proposition 8 stand. The first is that the California Constitution allows for a simple majority to pass an amendment. In the past this has allowed laws like Proposition 187 to pass, a law which denied public education and social services to illegal immigrant families. Prop 187 was ultimately struck down because the judge ruled that it was 'a “scheme” designed to regulate
immigration, an exclusively federal domain.'
This is where the second point comes in. There are no (as pointed out by Michaelangelo Signorile on his show yesterday) federal laws recognizing or protecting gays as a minority class. If there had been any federal recognition, the Justices could have struck down Proposition 8 on that merit, but without it, six of them felt that their hands were tied.
The dissenting vote by Judge Moreno was an interesting read, and naturally I found myself in agreement with most of his points. I thought he made the real point, the one overlooked by the majority in their opinon when he noted:
I'm trying to convince myself that they were adhering to the letter of the law concerning Constitutional amendments, but in doing so they sacrificed one of their prime duties, which is to prevent a minority class from being mistreated by the majority, or as Justice Moreno said in his dissenting opinion: "The equal protection clause is therefore, by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect."
So where does that leave us? As I said the other day, the momentum is on the side of the LGBT community. Public opinion has shifted in favor of same sex marriage and will continue to do so as it becomes less scary to the average voter. Voters will overturn Prop 8 in either 2010 or 2012 and this decision will go down as an embarrassing moment in California history.
There were two sticking points that made Proposition 8 stand. The first is that the California Constitution allows for a simple majority to pass an amendment. In the past this has allowed laws like Proposition 187 to pass, a law which denied public education and social services to illegal immigrant families. Prop 187 was ultimately struck down because the judge ruled that it was 'a “scheme” designed to regulate
immigration, an exclusively federal domain.'
This is where the second point comes in. There are no (as pointed out by Michaelangelo Signorile on his show yesterday) federal laws recognizing or protecting gays as a minority class. If there had been any federal recognition, the Justices could have struck down Proposition 8 on that merit, but without it, six of them felt that their hands were tied.
The dissenting vote by Judge Moreno was an interesting read, and naturally I found myself in agreement with most of his points. I thought he made the real point, the one overlooked by the majority in their opinon when he noted:
We recognized in the Marriage Cases that "draw[ing] a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership)" (Marriage Cases, supra, 43 Cal.4th at p. 782) "impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple." (Id. at p. 784.) Denying same-sex couples the right to call their relationships marriages treats them as " 'second-class citizens.' " (Id. at p. 785.) As we observed in the Marriage Cases, "there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples." (43 Cal.4th at p. 855.)Considering that most of what was written above came from the earlier decision, I'm stumped that the same body of Justices could reach such a radically different conclusion. Justice Moreno makes some excellent points about how the Justices are not beholden to only those minorities identified by the US Constitution:
California’s equal protection doctrine has not been confined to that of federal Fourteenth Amendment jurisprudence: "[O]ur state equal protection provisions . . . are possessed of an independent vitality which, in a given case, may demand an analysis different from that which would obtain if only the federal standard were applicable." (Serrano v. Priest (1976) 18 Cal.3d 728, 764.) The equal protection clause of our state Constitution is important as a provision of independent force and effect only when this court extends greater protection under that provision than the high court has extended under the equal protection clause of the federal Constitution.It appears that there was plenty of precedent for the court to overturn Proposition 8, and I am truly confused as to what motivated the Justices to decide the way that they did. Was it simply political cowardice in the face of right wing media's constant attacks on "activist judges" and a threat by the Christian Right to start a recall vote against the Justices themselves? I'd like to think not, that the Justices would not bow to that sort of political pressure.
I'm trying to convince myself that they were adhering to the letter of the law concerning Constitutional amendments, but in doing so they sacrificed one of their prime duties, which is to prevent a minority class from being mistreated by the majority, or as Justice Moreno said in his dissenting opinion: "The equal protection clause is therefore, by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect."
So where does that leave us? As I said the other day, the momentum is on the side of the LGBT community. Public opinion has shifted in favor of same sex marriage and will continue to do so as it becomes less scary to the average voter. Voters will overturn Prop 8 in either 2010 or 2012 and this decision will go down as an embarrassing moment in California history.
Labels: Opinion
posted by John at
9:19 AM
0 Comments
May 26, 2009
Obama Nominates Jerry Springer to Supreme Court
Washington DC- In a move that initially shocked Republicans and Democrats alike, President Obama announced his pick for the Supreme Court today, talk show host Jerry Springer.
Speaking to a special session of the Senate, Obama stated that "Despite his lack of judicial experience, Jerry is an excellent mediator who acts with compassion and integrity. I have complete confidence that he will execute his new office with the same dignity and high minded behavior that he has demonstrated on his television program over the years." Obama went on to say that the Supreme Court would be getting an "extreme makeover" for the 21st century, with a more open format based on Springer's television show.
Springer, who is 65 has no professional legal experience, but he has served in public office as the Mayor of Cincinnati in 1977. His television show has been on the air since 1991, and it's rumored that his vast fortune is second only to Oprah Winfrey's.
Springer said he was honored by the nomination, and only hoped the other justices would be open to updating the stodgy image of the court to one that would really allow plaintiffs and defendants to fully express themselves. "People are passionate about the law," said Springer, "but you'd never know it watching these dull, somber proceedings."
The nomination was met with skepticism at first, Senate Majority Leader Harry Reid was actually caught on camera rolling his eyes, but with a more positive reaction from his Republican colleagues, Springer's nomination began to get traction.
Senator Elizabeth Dole was the first to openly express support stating "I love Jerry Springer! I never miss an episode." Later on she expressed a bit of regret when Springer indicated he would be unable to continue his program should his nomination be approved.
Minority Leader Mitch McConnnell made the Republican stamp of approval when he remarked "Springer is a lot less liberal than most of the candidates we expected, we kept expecting Bill Mahr or Oprah Winfrey to be named."
There were still some Democrats strongly opposed to the nomination though. Senator Chuck Schumer of New York has promised to lead a filibuster and block the appointment. "It's not just because Springer is dangerously unqualified for such a high office, but we were promised former New York City Mayor Ed Koch, who resided over the People's Court for several seasons."
When asked to comment on the Ed Koch appointment, White House Press Secretary said that Koch was considered but never promised. "We had to go with the Justice who would draw the highest ratings, and that person is Jerry Springer."
Speaking to a special session of the Senate, Obama stated that "Despite his lack of judicial experience, Jerry is an excellent mediator who acts with compassion and integrity. I have complete confidence that he will execute his new office with the same dignity and high minded behavior that he has demonstrated on his television program over the years." Obama went on to say that the Supreme Court would be getting an "extreme makeover" for the 21st century, with a more open format based on Springer's television show.
Springer, who is 65 has no professional legal experience, but he has served in public office as the Mayor of Cincinnati in 1977. His television show has been on the air since 1991, and it's rumored that his vast fortune is second only to Oprah Winfrey's.
Springer said he was honored by the nomination, and only hoped the other justices would be open to updating the stodgy image of the court to one that would really allow plaintiffs and defendants to fully express themselves. "People are passionate about the law," said Springer, "but you'd never know it watching these dull, somber proceedings."
The nomination was met with skepticism at first, Senate Majority Leader Harry Reid was actually caught on camera rolling his eyes, but with a more positive reaction from his Republican colleagues, Springer's nomination began to get traction.
Senator Elizabeth Dole was the first to openly express support stating "I love Jerry Springer! I never miss an episode." Later on she expressed a bit of regret when Springer indicated he would be unable to continue his program should his nomination be approved.
Minority Leader Mitch McConnnell made the Republican stamp of approval when he remarked "Springer is a lot less liberal than most of the candidates we expected, we kept expecting Bill Mahr or Oprah Winfrey to be named."
There were still some Democrats strongly opposed to the nomination though. Senator Chuck Schumer of New York has promised to lead a filibuster and block the appointment. "It's not just because Springer is dangerously unqualified for such a high office, but we were promised former New York City Mayor Ed Koch, who resided over the People's Court for several seasons."
When asked to comment on the Ed Koch appointment, White House Press Secretary said that Koch was considered but never promised. "We had to go with the Justice who would draw the highest ratings, and that person is Jerry Springer."
Labels: Satire
posted by John at
8:41 AM
1 Comments
May 25, 2009
The Prop 8 Decision: Equality Will Win Out in the End
Tomorrow the California Supreme Court will issue its verdict on whether or not Proposition 8 is constitutional. The answer to this seemed obvious on a personal level, but I know that legal definitions can often be more convoluted and confusing, so I spent the last two days reading the California Constitution and the arguments against Proposition 8 to see if I could come to my own conclusions. As I researched, reading many of the current articles about the whole subject, I realized that even if the Court upholds Prop 8, its days are numbered.
After looking over the California Constitution, I realized that Prop 8 was a masterstroke of evil and legalese. There was little or nothing in the existing California constitution to refute it, except for those points which are being decided on by the CA Supreme Court right now: Is Prop 8 invalid because it constitutes a revision rather than an amendment? And, does Prop 8 violate the Separation of Powers doctrine under the Constitution? The first one seemed obvious to me, but we're talking about legal definitions here rather than common sense, but the second question seemed more obtuse and required a lot more research before I was able to understand it.
Does Proposition 8 count as a revision of the Constitution rather than an amendment? Since it takes away a previously existing (albeit for a brief time) right for a group of people, the answer is an obvious "yes." Had same sex marriage never been legalized, there would have been a valid argument for it being and amendment, but stripping away a right that the same Supreme Court had previously ruled as existing, clearly makes it a revision and not an amendment.
The question of whether Proposition 8 violated the Separation of Powers Doctrine under the Constitution seemed a bit murky at first, and looking at the Constitution itself didn't help matters. All it states is that "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." What is not said here is that while the legislative branch's job is to pass the laws, it is the job of the judicial branch to interpret them. Proposition 8 only exists because some California citizens didn't like a particular interpretation of the existing law by the courts, so they passed a law which took the power of interpretation away from the courts. In effect, it was a legal act of spite, and the proper action of the courts would be to strike it down.
The main argument I've heard for the Supreme Court keeping Prop 8 is that they don't want to overturn the will of the voters. This argument was presented strongly by one of the Justices during the the Prop 8 hearings in March and gave many people the impression that Prop 8 would indeed be upheld. If this is the basis of their ruling, it should be noted that the will of the voters is shifting, and now favors overturning Prop 8 by a slight majority. Time is on the side of progressives, and the average person is getting over their fears and realizing that the world won't end because gay people are allowed to marry each other.
So if tomorrow is a setback rather than a day of celebration, I am confident that we'll see Prop 8 overturned and same sex marriage legalized within the next two to four years. I'll even be as bold to predict that we'll see a federal same sex bill in the Senate be 2016. I'm betting that the Supreme Court will do the right thing though and tomorrow will be a day of (re)celebration.
After looking over the California Constitution, I realized that Prop 8 was a masterstroke of evil and legalese. There was little or nothing in the existing California constitution to refute it, except for those points which are being decided on by the CA Supreme Court right now: Is Prop 8 invalid because it constitutes a revision rather than an amendment? And, does Prop 8 violate the Separation of Powers doctrine under the Constitution? The first one seemed obvious to me, but we're talking about legal definitions here rather than common sense, but the second question seemed more obtuse and required a lot more research before I was able to understand it.
Does Proposition 8 count as a revision of the Constitution rather than an amendment? Since it takes away a previously existing (albeit for a brief time) right for a group of people, the answer is an obvious "yes." Had same sex marriage never been legalized, there would have been a valid argument for it being and amendment, but stripping away a right that the same Supreme Court had previously ruled as existing, clearly makes it a revision and not an amendment.
The question of whether Proposition 8 violated the Separation of Powers Doctrine under the Constitution seemed a bit murky at first, and looking at the Constitution itself didn't help matters. All it states is that "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." What is not said here is that while the legislative branch's job is to pass the laws, it is the job of the judicial branch to interpret them. Proposition 8 only exists because some California citizens didn't like a particular interpretation of the existing law by the courts, so they passed a law which took the power of interpretation away from the courts. In effect, it was a legal act of spite, and the proper action of the courts would be to strike it down.
The main argument I've heard for the Supreme Court keeping Prop 8 is that they don't want to overturn the will of the voters. This argument was presented strongly by one of the Justices during the the Prop 8 hearings in March and gave many people the impression that Prop 8 would indeed be upheld. If this is the basis of their ruling, it should be noted that the will of the voters is shifting, and now favors overturning Prop 8 by a slight majority. Time is on the side of progressives, and the average person is getting over their fears and realizing that the world won't end because gay people are allowed to marry each other.
So if tomorrow is a setback rather than a day of celebration, I am confident that we'll see Prop 8 overturned and same sex marriage legalized within the next two to four years. I'll even be as bold to predict that we'll see a federal same sex bill in the Senate be 2016. I'm betting that the Supreme Court will do the right thing though and tomorrow will be a day of (re)celebration.
Labels: Opinion
posted by John at
2:06 PM
0 Comments
May 24, 2009
Changes to this Blog
Over the next few weeks and months there will be some major changes to this blog. First and foremost will be the expansion of it's format, going beyond parody. I will from time to time be posting my own political musings, under the category of "opinion" (for all my right wing readers who have trouble telling the difference.) I expect to make my first opinionated post by tomorrow, so I figured a heads up was in order.
I will also be promoting some of my politically designed t-shirts and bumper stickers. Whether I do this as a blog entry or just something in the sidebar is yet to be decided, but I thought I would give everyone fair warning.
I also intend on posting far more frequently, hopefully getting at least two or three posts a week here. I enjoy writing for PM, even when my posts have been few and far between. Often I'll have a post in mind, but get so bogged down with my day job and other responsibilities that the moment passes and the story is no longer relevant. That is going to change, I will now set aside a little time each day for writing either here or in one of my other blogs.
If you're a fan of this blog, I hope you'll enjoy the expanded content. If you're one of the Conservatives who feel that you have been scandalized by this blog, don't worry, there's still time to become a progressive before I poke fun at your foibles. What do you think really made Arlen Spector change parties?
I will also be promoting some of my politically designed t-shirts and bumper stickers. Whether I do this as a blog entry or just something in the sidebar is yet to be decided, but I thought I would give everyone fair warning.
I also intend on posting far more frequently, hopefully getting at least two or three posts a week here. I enjoy writing for PM, even when my posts have been few and far between. Often I'll have a post in mind, but get so bogged down with my day job and other responsibilities that the moment passes and the story is no longer relevant. That is going to change, I will now set aside a little time each day for writing either here or in one of my other blogs.
If you're a fan of this blog, I hope you'll enjoy the expanded content. If you're one of the Conservatives who feel that you have been scandalized by this blog, don't worry, there's still time to become a progressive before I poke fun at your foibles. What do you think really made Arlen Spector change parties?
Labels: Opinion
posted by John at
6:42 PM
0 Comments
May 11, 2009
Republican Party Galvanizes Around Dijon-Gate
A seemingly innocent choice of condiments has erupted into a nationwide scandal, and has finally given Republicans a rallying cry against the Obama administration. After months and months of failed attacks on his acquaintances, his religion, and his citizenship, the Republicans have found something that sticks: Dijon Mustard.
Until now Barack Obama has been the Teflon President, deflecting a constant string of right-wing attacks and accusations with style, grace and humor. The more rabid his political opponents became, the more Barck Obama shined; however, that all came crashing down this weekend when his All-American image was shattered by his ordering of Dijon Mustard on a cheeseburger.
Right wing pundits pounced causing Kraft Foods stock sym KFT (the makers of Grey Poupon) to plunge in early trading. Short selling was quickly halted on the stock, and Treasury Secretary Timothy Geithner called a press conference to inform the country that TARP funds would be used to shore up Kraft Foods stock. Geithner stated: "With products like Grey Poupon and Kraft Macaroni & Cheese, the company is too tasty to fail." The stock soared in late trading, but the fallout of Dijon-gate has only just begun.
"This is the biggest scandal since Whitewater!" Senate Minority Leader Mitch McConnell shouted on the Senate floor, holding a bottle of French's yellow mustard in one hand and a hot dog in the other. "I demand a specical commission be appointed to examine this obvious French-Socialist influence on our governement!"
A similar proposal was made in the House by Rep. Michelle Bachmann, who further suggested that the eating of mustard on anything but hot dogs was an strong indicator of Socialist infiltration into the mind of the eater. She demanded an immediate investigation into all of the "Dijon Democrats." Both proposals were of course voted down by the Democrats, but not without loud accusations of cover up by the Republicans.
"This is not over!" House Minority Leader John Boehner promised in an afternoon press conference. "The Republican party will employ an outside independent investigation, headed by CRC Public Relations, a patriotic firm with no political affiliations whatsoever." When a reporter pointed out that CRC Public Relations was the company behind the Swift Boat ads against John Kerry in 2004, security immediately had her ejected from the news conference and Boehner described her as a "Dijon Demmie spy."
Former presidential candidates and 2012 hopefuls, Sarah Palin and Mike Huckabee also weighed in: Sarah Palin smiled before the cameras with a moose dog in one hand and a bottle of yellow mustard in the other. "If yellow mustard was good enough for our founding fathers, it's good enough for me." In a separate news conference Mike Huckabee stated: "The devil may have created dijon mustard, but it was God's will that Obama put it on his cheeseburger and exposed his corrupt nature for all the world to see."
Until now Barack Obama has been the Teflon President, deflecting a constant string of right-wing attacks and accusations with style, grace and humor. The more rabid his political opponents became, the more Barck Obama shined; however, that all came crashing down this weekend when his All-American image was shattered by his ordering of Dijon Mustard on a cheeseburger.
Right wing pundits pounced causing Kraft Foods stock sym KFT (the makers of Grey Poupon) to plunge in early trading. Short selling was quickly halted on the stock, and Treasury Secretary Timothy Geithner called a press conference to inform the country that TARP funds would be used to shore up Kraft Foods stock. Geithner stated: "With products like Grey Poupon and Kraft Macaroni & Cheese, the company is too tasty to fail." The stock soared in late trading, but the fallout of Dijon-gate has only just begun.
"This is the biggest scandal since Whitewater!" Senate Minority Leader Mitch McConnell shouted on the Senate floor, holding a bottle of French's yellow mustard in one hand and a hot dog in the other. "I demand a specical commission be appointed to examine this obvious French-Socialist influence on our governement!"
A similar proposal was made in the House by Rep. Michelle Bachmann, who further suggested that the eating of mustard on anything but hot dogs was an strong indicator of Socialist infiltration into the mind of the eater. She demanded an immediate investigation into all of the "Dijon Democrats." Both proposals were of course voted down by the Democrats, but not without loud accusations of cover up by the Republicans.
"This is not over!" House Minority Leader John Boehner promised in an afternoon press conference. "The Republican party will employ an outside independent investigation, headed by CRC Public Relations, a patriotic firm with no political affiliations whatsoever." When a reporter pointed out that CRC Public Relations was the company behind the Swift Boat ads against John Kerry in 2004, security immediately had her ejected from the news conference and Boehner described her as a "Dijon Demmie spy."
Former presidential candidates and 2012 hopefuls, Sarah Palin and Mike Huckabee also weighed in: Sarah Palin smiled before the cameras with a moose dog in one hand and a bottle of yellow mustard in the other. "If yellow mustard was good enough for our founding fathers, it's good enough for me." In a separate news conference Mike Huckabee stated: "The devil may have created dijon mustard, but it was God's will that Obama put it on his cheeseburger and exposed his corrupt nature for all the world to see."
Labels: Satire
posted by John at
10:53 AM
0 Comments
