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culture General National

Change Done Right

With the news yesterday that New Hampshire passed a law to allow gay marriage I sincerely hope that the proponents of gay marriage may begin to see the right way to bring the change they seek – especially when put in context next to Vermont’s legalization of gay marriage, Maine’s legalization, the setback in the California Supreme Court ruling on Prop. 8, and the reaction to Massachusetts’ Supreme Court decision in 2004. While there has been little if any reaction to those three states that legalized gay marriage through the legislative process there was a large push to overturn the Supreme Court decision in Massachusetts through a state constitutional amendment, and the same approach in California succeeded in rolling back the original Supreme Court decision in California that legalized gay marriage temporarily in 2008.

The point is that the right way to enact these changes is to take the time to educate and convince people so that the change may be made through the legislative process and be accepted rather than simply trying to ram “equality” down the throats of your fellow citizens based on an unwillingness to trudge the long path of education and debate.

Although it may seem quicker to use the courts, we should all remember that cutting off the debate through judicial action has not led to any resolution on the abortion issue even after more than 30 years. It may be that 30 years would be enough to take the “slower” route of education and persuasion to peacefully achieve your goals.

Categories
National

U.S. and CA Supreme Court News

The news came last week that the California Supreme Court would issue their ruling related to Proposition 8 so I expected to have a reaction to that news today. I saw news this morning that President Obama would make his nomination for a new judge to replace Justice Souter – that news surprised me. Obama nominated Sonia Sotomayor. So far all I really know about her is that she is a Catholic, Hispanic female. I am not at all confident that we will ever have hearings in the Senate about a supreme court nominee that are more about qualifications than about politics, but if that day ever comes I am convinced that the founders were right to assign the task of confirmation to the Senate rather than the House or the people.

In California, the Supreme Court upheld Prop. 8. From what I had heard this ruling was not a foregone conclusion nor was it unexpected. The ruling provided answers to two related questions. One question was whether Proposition 8, which passed with 52% of the vote to define marriage in California as being between a man and a woman, was too far reaching to be added to the Constitution without the participation of the state legislature. As previously stated, the court denied that claim. The second question was whether the same-sex marriages performed before the passage of Prop. 8 would retain their legal recognition. On this the court unanimously agreed that they would still be recognized.

Regardless of my personal opinion on the legitimacy of same-sex marriage (just like the justices are supposed to make their rulings based on the law rather than their own personal feelings) I believe that the court ruled correctly on both questions. I believe that the question embodies in Prop. 8 is perfectly within the right and ability of the people to decide. I also believe that because the same-sex marriages performed before the passage of Prop. 8 were legal based on a previous ruling at the time they were performed the state must feel obligated to recognize those existing marriages (its the principles of ex post facto laws). The only way they could have annulled those existing marriages were if they were to rule that their ruling from last year was in error – which I expect they never will.

Categories
culture State

An Illegal Constitutional Revision?

Gay-rights advocates in California think that everyone else is an imbecile. They have decided to file a lawsuit claiming that Proposition 8 is "an illegal constitutional revision — not a more limited amendment." They expect that nobody will recognize that the California Constitution makes no distinction between an amendment and a revision. They also expect that they can bully people into forgetting that the nature of an amendment is that it cannot be illegal so long as it is enacted according to the established procedures.

Of course it is possible to make an amendment that goes against common sense, such as an amendment to designate that "in government math 2+3=7." As stupid as that sounds, if such an amendment were passed into law by following the established procedures it would be the law of the state and government calculations would have to be revised accordingly until an amendment were passed to repeal it. (Think back on the 18th and 21st amendments to the federal Constitution.)

There is no such thing as an illegal constitutional revision so long as the revision is made according to the legal procedures. They just hope they can bully the people of California through the courts on this like they did with Proposition 22 from 2000. The difference is that Proposition 8 is now the law of California and the California courts may not invalidate their own constitution – only a new amendment can do that.

Categories
National State

Proposition 8

I have stayed silent on proposition 8 thus far although I don’t imagine that many people would guess wrong if they were to predict my position. I have heard plenty of opposition to the proposition so I know the major reasons for those who oppose it. The most famous reasons for those who support Proposition 8 seem to be the "Six Consequences." I have not read those six consequences, but again, the opposition has been vocal enough that I have a pretty good idea of what those are. Today when I read the statement by Constitutional Law professors from California I decided that it was time to set the record straight about this whole issue. Like so many issues, the rancor and the passion on both sides has served to obscure the real issue and color the arguments into inaccuracy. For my purposes I will stick to the 3 points emphasized in this statement .

The first point is correct only to the first sentence – Proposition 8 would change existing California law. The trick is that there is nothing inherently bad about changing our existing written laws, especially when those laws are unreasonable in any way (self-contradictory, vague, or outside the jurisdiction of law are examples of why a law may be considered unreasonable). Those arguing in favor of Proposition 8 are arguing that the definition of marriage falls outside the jurisdiction of human law. To them it is not a matter of discrimination, it is a belief that the following statement is fundamentally false on simple semantic grounds:

Proposition 8 would forbid government officials from according gay men and lesbians a fundamental right they now enjoy and that all other adults in California will continue to enjoy: the right to marry a person of their choice.

The real argument behind Proposition 8 is that no person has the fundamental right to marry the person of their choice but that, in fact, every person finds that their choice is limited by the very definition of what constitutes marriage. At the core, what proponents of proposition 8 are claiming is that marriage is not a man-made construct and cannot be made to conform to the changing whims of society. When society forbade interracial marriage half a century ago it did not mean that interracial couples could not meet the criterion of marriage, only that society was too myopic to tolerate such a marriage.

The real argument of Proposition 8 supporters rests on two premises: 1) that what constitutes marriage is defined by God and not by society, and 2) that God’s definition of marriage requires (among any other criterion) that the parties to marriage may not share a common gender. Anyone who accepts those two premises (as I do) must support this proposition or be in open rebellion against God. (Those who reject these two premises cannot be judged by their fellow men to be in such rebellion on this issue.)

There are two very unfortunate truths regarding the arguments being made by most proponents of Proposition 8. First, they give little if any emphasis to their real argument (as stated above) preferring instead to try to make their case in terms of human law (which argument is naturally riddled with bias and inaccuracy as I will show below). Second, they fail to articulate that – contrary to what opponents claim in order to accuse them of bigotry and discrimination – while they believe that marriage by its nature cannot be entered into in a homosexual fashion they do not argue that gays and lesbians do not have the same fundamental rights as all other people, namely the rights to devote their lives to the person of their choice, to share their earthly possessions with the person of their choice, to offer care and support for the person of their choice in times of emotional, financial, physical, or mental distress (or comfort). In other words, gays have every right to cohabitate, enjoy hospital visitation and inheritance rights, and everything else commonly associated with marriage, but we assert that it is a matter of fact, and not a matter of discrimination that such sharing does not meet the qualifications for the term "marriage."

What is being decided by the voters of California is whether they will make California law conform with the definition of marriage espoused by the proponents which states that a marriage cannot be made without the participation of both a man and a woman or if they will insist in California law that marriage is a human social construct that may be altered according to the prevailing views of society.

The second point is correct on the surface and clearly exposes a flaw in the argument by Prop. 8 proponents. The tax exempt status of churches who refuse to perform marriages for same sex couples will receive the same protection regardless of the outcome of Prop. 8. Historically the tax exempt status of churches has been regularly challenged and rarely overturned. Going forward, it will be regularly challenged and occasionally overturned. The statement by the law professors ignores the truth behind such challenges which is that taking a position against legalized same sex marriage is as good an excuse as any for a group to get angry at a church and challenge their tax exempt status.

The third point is like the second in that it is technically correct and exposes a flaw in the arguments of proponents. Proposition 8 is neither necessary nor sufficient to "prevent public schools from teaching issues relating to marriage by same-sex couples to children whose parents oppose that instruction." Here the statement by the law professors ignores the facts that regardless of what is written in the books of law, very few parents have the time or the expertise to exercise their "absolute right to review all materials provided as part of a school’s comprehensive sexual health education program and to have their children excused from participation," and that legal recognition of same sex marriage by the state gives tacit permission for those who would wish to push such an agenda to test the limits of what parents will permit.

Yes, I just offered correction on the statement of 54 constitutional law professors – including Lawrence Lessig (who I esteem very highly) – and yet the only point that anyone can disagree about is the one that this issue is meant to resolve. In other words, the voters of California will go to the polls to decide between me and those who disagree with me as far as California law is concerned. On the other points everyone should stop their posturing and pointing out of technicalities. The real issue is the question of semantics.