Wednesday, November 12, 2008

Does Prop. 8 "Amend" or "Revise" California's Constitution?

James Taranto wrote the following, in Tuesday's "Best of the Web" column, regarding efforts to overturn California's Prop. 8, which amended the state constitution to define marriage as between a man and woman (link):

You may be wonder how the state Supreme Court could overturn a constitutional amendment. As Dale Carpenter, a Minnesota law professor who favors same-sex marriage, explains, the question is whether this amendment is actually a "revision" to the constitution. Although California voters can "amend" the constitution through a ballot measure alone, a "revision" must receive a two-thirds vote of the Legislature before being put before the voters.

Without taking a side on the issue, I'll say that it's apparent that banning same-sex marriage is not "revising" the state constitution. Actually, the court's interpretation of the constitution that allowed same-sex marriage was "revisionist." Let's not blind ourselves to the fact that marriage, under either the US or the various state constitutions, has meant, historically, a union of a man and a woman. When these documents were written, no-one thought that marriage could be defined any other way. How can an amendment that reiterates this historical view be called a "revision?"

Michael C. Dorf rebuts this argument on the FindLaw blog (link):

First, the decision holds that the California Constitution confers upon Californians a fundamental right to marry. The state, and various same-sex marriage opponents, had argued that the right to marry had to be understood in its historical context, and that was as a right of opposite-sex couples alone to marry. The Court rejected this argument as legerdemain. In so doing, the Court drew an analogy to its own 1948 decision invalidating a law barring interracial marriage, and quoted New York Chief Judge Judith Kaye's observation (in dissent in New York's same-sex marriage case) for the proposition that ìfundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.

That was written at the time of the initial court ruling, in May of this year, overturning the law (Prp. 22) banning same-sex marriage. It should be noted that the 1948 ruling allowed interracial marriages between opposite-sex couples only, and that the history of racial discrimination is quite different than the history of homosexual discrimination (Homosexuals have voted, under the same historical restrictions as heterosexuals have, since the inception of the nation). I can't help but also notice that they cite a dissent from a NY State judge in their ruling, meaning it was a losing argument in NY's "left" leaning court system. Not the most best of legal precedents to cite.

This is a complex issue, and a deeply divisive one, so I'm just skimming a few points, here. While I'm sure that same-sex marriage will eventually become the law, it has to be legalized by the legislative branch of government, not by judicial fiat. The court's May ruling was counter-productive for supporters of gay marriage, because now, as Mr. Taranto points out, "Let's suppose the California Supreme Court upholds Proposition 8. Will Schwarzenegger then be willing to sign legislation legalizing same-sex marriage? It doesn't matter! Such leglsiation is now unconstitutional under Proposition 8."

Read Mr. Taranto's whole piece for his take on Gov. Schwartznegger's cowardice in dealing with this issue, along with his usual funny take on other interesting stories. As for my opinion on this issue, "marriage" is a religious sacrement, and has no place being defined by the state. All "marriages" should be legally defined as "civil unions," which can be defined by the state. I support "civil unions" between same-sex couples. There are already churches that will perform the religious sacrement of marriage for same-sex couples, so it would be a moot point. Of course, that would be too "sweeping" a ruling for a court to make, so I fully expect the California court to call Prop. 8 a "revision" of the California Constitution, and overturn it, taking the judicial shortcut again.

I wonder if they'll ever learn.

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