Tuesday, May 26, 2009

Did they win what they think they won?

Are you tired as I am, of the mob rule proponents? You know, the ones who say "majority rules!" It's pretty clear that they are lacking some fundamental understanding of our Constitutional democracy. The courts and the Constitution are essential to protect the rights of the minority from mob tyranny. This is why the minority consents to be governed.

There is a US State Department site that explains this concept, for those who have a problem grasping it, from a document called Principles of Democracy.
Majority rule is a means for organizing government and deciding public issues; it is not another road to oppression. Just as no self-appointed group has the right to oppress others, so no majority, even in a democracy, should take away the basic rights and freedoms of a minority group or individual.
The California Supreme Court has made a decision that these Principles of Democracy do not apply in our state. They have upheld the tyranny of the majority and crushed the rights of the minority. They have failed in their constitutional role to protect us. And this was spelled out explicitly in Justice Moreno's withering dissent.

So, they have set a dangerous precedent that ANYONE'S rights are subject to modification by majority vote-- ANYONE. That means left-handed people, redheads, Mormons, the disabled, and any other definable group can have their rights legitimately eliminated by the mob.

BUT: Prop8 supporters did not win what they think they did. Because the court did say clearly that all this applies to is the term "marriage". The actual rights-and-privileges of marriage are still to be available to gay and lesbian folk, just not the name--that is an explicit statement that "whatever it is called" is a marriage in ALL but name. If the H8ers wanted to eliminate all the benefits of marriage from gays, then Prop8 would have been a revision, and unqualified. To qualify as an amendment, the effect of Prop8 must be limited to the name "marriage".

Think about it. This means that there must be state forms that include the DP'd folks: "Single or Married/unioned". This means that kids will learn that there are marriages and DPs in school, and yes, teacher may invite them to her wedding (because they didn't take the name wedding, just the name "marriage"). This means that under law, GLBT "whatever you call its" WILL be treated the same as "marriage" .

Prop8 is still wrong, of course, and the court did fail. We must over turn it. But I wonder how long it takes The Forces of H8 to figure out that they didn't really succeed doing what they thought they were doing.

As the expression goes, the arc of history may be long, but it bends towards justice.


Elizabeth Kaeton said...

Well done, IT. I have quoted you in my blog post on this.

I'm not a lawyer and I don't play one on my blog, but here's what I say:

If it walks like a marriage and talks like a marriage and sounds like a marriage . . .it ain't a duck!

IT said...

Thanks, Elizabeth. I'm not a lawyer either, of course....but the idea here comes from a lawyer, so there may be something to it!

Göran Koch-Swahne said...

Most important point, this.

Maybe the Judges should have thougth first...

Göran Koch-Swahne said...

Interstingly, Andrew Sullivan praises the descision as "politics".

I agree - but no praise. It's a bad kind; trying to please - or, at least, not to dis-please as many as possible...

When people realize what they have been lured into...

IT said...

I am starting to suspect, Göran, that they did know what they were doing, that they felt limited by the law, but narrowed the decision as much as they could to deflect its harm.

In fact, some people are suggesting this is in many respects a solidification of gay rights.

It's hard to explain to people in civilized countries, like yours, but there has been some speculation that the right wing rump, already primed for violence, would have reacted very violently to an apparent "overturning" of the people's will. And those are the people with assault rifles.

This is a very frightening country and parts of it are becoming 3rd world.

Göran Koch-Swahne said...


David said...

dear IT
sorry but 'different' still doesn't equate with 'equal'

as long as there is a distinction, there would not appear to be either equality or full citizenship. but then i have the luxuary of writing from a country where our people have been allowed legal marriage for close to a decade now.

being neither a lawyer or an American, perhaps i'm missing something, but it would appear to me that the Supremes screwed up by not having the courage to address what was really at stake.

IT I bet you an BP looked great in those purple St.Paul's t-shirts!

love and prayers


IT said...

I'm not saying it was right, david, and by all means we need to over turn this. Trust me, I KNOW separate is not equal. I'm saying we would be foolish not to take advantage of any little bit of good we can pull out of a disappointing decision especially if it makes the heads of the H8ers explode. ;-)

Göran Koch-Swahne said...

Maybe I should underline what I just wrote on a Swedish blog "Antigayretorik" that I don't think this kind of thing would happen in a Europe having WW2 in (not so fresh ;=) memory...

I mean the grean light given by the California Supreme Court to any devaluing the civil rights of minorities (such as the impopular Mormons ;=)

We wouldn't dare. No Jew would dare! The Mormons shouldn'd either...

Barry Fernelius said...

Last night, I read the California Supreme Court's decision in the Prop. 8 cases. What did the Prop. 8 proponents gain by 'winning' this case? Not much.

The justices gave Prop. 8 the narrowest definition possible: the word 'marriage' can only be used to describe a domestic relationship established between a man and a woman. The opinion takes great pains to point out that Prop. 8 does NOT give the state any right whatsoever to take away the rights and privileges associated with a domestic partnership established between same sex partners.

So what did they win? One word. MARRIAGE. That's all. It's not much when you start to think about it. Consider the following.

1) Same sex partners can't call their relationship a MARRIAGE. (Possible exception: those who were legally married prior to Prop. 8) But the following words are not restricted in any way: husband, wife, etc. It's OK for Jennifer to call Judy her wife. It's not OK to say that the relationship between Jennifer and Judy is a MARRIAGE.

2) Same sex couples of 'a certain age', couples who have put in place all of the legal paperwork could engage in acts designed to create litigation. Jim says to Harry, "Hey, I'm having chest pains!" Harry calls the ambulance, and Jim is rushed to the hospital. Harry says that he needs to be by Jim's side, but the hospital hesitates. Harry says, "It's OK; Jim is my husband." The hospital still refuses. When Jim is released from the hospital, Harry sues the hospital.

Now take that scenario and multiply by one thousand. Same sex couples should litigate institutions back into the stone age!

3) For the next election, put a ballot initiative forward that restricts the use of some other word. For instance, consider the following:

"Shall the California Constitution be changed to eliminate the right of opposite sex couples to refer to each other as husband or wife, providing that those terms can only be used in the context of a same-sex relationship?"

4) Another option: simple civil disobedience, most of the time. The California Constitution says that same-sex couples can't call their relationship a marriage, but all of us can go on doing so anyway. Until there is legislation that specifies a penalty for this crime there isn't anything that anyone can do. Keep right on using the word marriage in any way that you want to -- except for a few narrow instances that could present legal problems.

Look, I'm a straight guy, and some of you might say that I don't have a horse in this race, but the issue is simple: equal rights under the law. I say that same sex couples have the opportunity to take the equal rights argument to extremes.