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Court hears Proposition 8 Appeal. Early signs not good for Gay Marriage

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The fight to overturn Proposition 8, the controversial measure that bans gay marriage in California made its way to court today.

Hundreds gathered outside a California Supreme Court in San Francisco to watch on a big screen as the seven justices heard arguments for and against the validity of the law.

Lawyers representing gay rights groups, couples and a number of local governments argued that the ban on gay marriage is a drastic change to the constitution that deprives a minority of fundamental rights, and as such Proposition 8 was not within the boundaries allowed by such initiatives.

Proposition 8 supporters, led in court by former Whitewater special prosecutor Kenneth M. Starr, told the court that a simple majority could limit rights up to and including free speech under a state constitution that gives citizens broad power to legislate through the ballot box. “The people do have the raw power to define rights,” said Starr. “The people are sovereign and they can do very unwise things, and things that tug at the equality principle.”

The attempt to throw out Proposition 8 looks in doubt, with Chief Justice Ronald George, previously a supporter of gay marriage saying that “there have been initiatives that have taken away rights from minorities by majority vote” and have been upheld by the courts. Justice Joyce Kennard, also previously a gay marriage supporter, said the challenge to Proposition 8 involved “a completely different issue” from the court’s ruling that the marriage laws violated gays’ and lesbians’ rights to be treated equally and wed the partner of their choice.

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7 Responses to “Court hears Proposition 8 Appeal. Early signs not good for Gay Marriage”

  1. philipcfromnyc

    It appears (from responses to oral arguments) that the Court will probably uphold Proposition 8 insofar as this measure prevents gay couples from marrying in the future, but will also probably sustain those gay marriages that have already taken place. Sadly, our chief allies on the Court appear to accept the proposition that the majority of the citizens of the State of California may modify the state constitution to deprive a minority considered to be a suspect class of a right identified by the Court as fundamental (these terms have very specific meanings in constitutional law).

    We should therefore be prepared to overturn Proposition 8 less than two years from now; this issue can next be presented to the voters in November 2010, and we must spend time and effort carefully examining what went wrong in 2008 and how to prevent a recurrence of this religiously inspired nightmare.

    I use the phrase “religiously inspired” because it is no secret that the Mormons flooded the State of California with literally millions of dollars at the last moment, when pro-gay support was at its strongest. These people used their money and political clout to influence the political process in another state by spreading lies and disinformation up and down the state (falsely claiming that churches would be forced to perform gay marriages, etc.). We must identify why and how our efforts to reach out to the black community failed (about 70% of black voters voted in favor of Proposition 8), and how we can best rebut – and hopefully forestall – the forces of hatred and bigotry when they next raise their ugly voices 20 months from now.

    What frankly beggars my imagination is how the Court can turn a blind eye to the retraction of a right that it held to be fundamental from a class of persons that it held were identified along suspect lines (less than a year ago). If ever there were an object lesson in which the will of the majority of voters should be overturned, this case represents that object lesson. Would the Court uphold a measure that deprives Jewish persons, and only Jewish persons, of the right to publish books? Would the Court uphold a measure that deprives Catholics, and only Catholics, of the right to vote? From a legal standpoint, these hypothetical measures involve the same dynamics as are implicated in the current case. The Court appears to accept, implicitly, the proposition that a bare majority of the voters may retract any fundamental right from any minority, including suspect classes.

    Because in re Marriage Cases, S147999 (2008) was decided by invoking only the state constitution, that case cannot be appealed to the US Supreme Court. However, it may be possible to appeal the outcome of the instant cases to the US Supreme Court, depending on the nature of the state court’s analysis, because the retraction of a fundamental right (whether or not the group adversely impacted by the retraction of that right is suspect or non-suspect) from any group of persons must, under federal precedent, pass muster under “strict scrutiny” (see e.g. Heller v. Doe, 509 U.S. 312 (1993)). Here, the constitutional infirmity is compounded by the fact that gay persons are a suspect class under state constitutional precedent. However, the identification of marriage as a fundamental right that is also available to gay couples was a creature of state constitutional analysis, not US constitutional analysis, and the identification of gay persons as comprising a suspect class was also a creature of state constitutional interpretation; I therefore very much doubt that we would win before the US Supreme Court were we to perfect an appeal to that Court (and the ramifications of a loss at that level would be truly nightmarish).

    The silver lining to this cloud is the fact that all of the Justices appeared to endorse the proposition that gay couples should still be granted all of the substantive benefits (at the state level) of heterosexual marriage. This issue was not disturbed by Proposition 8 – in fact, proponents of Proposition 8 were careful to ensure that their attack on gay marriage not include an attack on domestic partnerships, which already grant to gay couples all of the substantive rights and privileges (at the state level) of heterosexual marriage, because their own polls indicated that any attempt to repeal domestic partnerships would fail.

    We should also make sure that our heterosexual allies be made aware of the full range of vicious and depraved sentiment expressed by many supporters of Proposition 8, who gathered outside the courthouse carrying signs bearing such clichéd and disgusting comments as “Homo sex is sin”, “Gay = Pervert”, “The Wages of Sin is Death”, and other charming terms of endearment. In their own way, these reptilian hate-mongers have actually helped us, by making the link between a vote in favor of Proposition 8 and overt, unadulterated hatred of gay persons crystal clear to any individual unfamiliar with this campaign.

    In any civil rights struggle, there will, inevitably, be setbacks and bitter disappointments. It is incumbent on us to prevent these setbacks from demoralizing us and diminishing our desire to fight back, and to fight back hard. Fortunately, we have many very powerful and vocal allies in this particular struggle – and we have succeeded in ensuring that protests against Proposition 8 have continued, and show every sign of continuing unabated, and with unanticipated ferocity, until this constitutional obscenity is repealed. We even succeeded in getting the hate-filled bigots to request exemption from financial disclosure legislation, because once identified, those who contributed to the campaign to pass this measure became the target of (perfectly legal) boycotts, protests, and other forms of public shaming. The pressure on many of these hate-mongers became intolerable, as they were “outed” and named, publicly, by pro-gay marriage advocates and publications. They failed in their bid to remain anonymous – this was a particularly hypocritical act of cowardice on their part, given their repeated calls on members of right-wing groups to harass and badger firms that have implemented gay-friendly employment, hiring, and advertising policies (the “American Family Association” finally abandoned its puny boycott of Ford, falsely claiming that it had won (when in fact Ford has made no substantive changes to any of its policies)).

    All eyes are currently on the Iowa Supreme Court, which heard oral arguments pertaining to gay marriage in December. We have already won in Massachusetts and Connecticut, and neither of these decisions has been disturbed by legislative enactments or state constitutional amendments (despite intense pressure to do in Massachusetts). Our victories in those two states are solid, and will remain solid. President Obama has promised to throw his full weight behind the repeal of the misnamed “Defense of Marriage Act” (DOMA), which was dreamed up by a thrice-married drunk who failed to pay child support to the children of his first two marriages, who financed an abortion for his second wife (whilst proudly claiming to be “pro-life”), and whose third marriage collapsed after he was photographed licking whipped cream from the breasts of two strippers at a fund-raiser.

    We will keep fighting, and we will eventually win – not just in California, but throughout the country.

    PHILIP CHANDLER

  2. Jeff Call

    it's never good when the comment length exceeds that of the article… also prop 8 has never been about hate. your vitriolic comment attributes prop 8 to fear, hatred and bigotry. Consider the possibility that people can study the facts and reasons on both sides and come to a different conclusion than you.

    PS. attacking the reputation of high-profile people who support prop 8 or whole groups like “the mormons” does nothing to strengthen the position of your belief that gays should be allowed to marry.

  3. Philip Chandler

    “also prop 8 has never been about hate. your vitriolic comment attributes prop 8 to fear, hatred and bigotry. Consider the possibility that people can study the facts and reasons on both sides and come to a different conclusion than you.

    PS. attacking the reputation of high-profile people who support prop 8 or whole groups like “the mormons” does nothing to strengthen the position of your belief that gays should be allowed to marry.”

    **********
    Response:
    **********

    Yes, I do attribute the vote to fear, hatred, and flat-out bigotry. You are absolutely entitled to disagree. As for the Mormons — almost four of every five dollars spent promoting Proposition 8 was sent to the campaign by Mormons based in Utah. We were WINNING the fight to retain marriage until these people stepped in at the last moment, with their money and their political clout, and I will not refrain from pointing this out because it is “politically incorrect” or otherwise embarrassing. To quote John Aravosis — “They just took marriage away from 20,000 couples and made their children bastards.”

    I consider that to be an act of religiously-inspired hatred. Period.

    PHILIP CHANDLER

  4. atty79

    @Jeff Call, you said, “Consider the possibility that people can study the facts and reasons on both sides and come to a different conclusion than you.” If you honestly think that people vote because they know the facts behind a particular issue, both sides and the consequences of their actions, you are an extremely naive person.

    To study the facts on both sides, you must concede that voters had to have read the In Re Marriage cases. Considering that the vast majority of voters barely have a high school education, how do you possibly assume they each individually read and understood the In Re Marriage opinion? The answer is: they did not. You are foolish to think that voters don't just vote their feelings. That goes for both sides. The problem with proponents of Prop 8 is their “feelings” caused the diminution of the rights of a class the Supreme Court found needed to be protected from the majority.

    You need to realize that your assumption is wrong. People do not educate themselves before casting their ballot. Once you realize that, you can evolve into an understanding that direct democracy is wrong; and more importantly, that church-led bigotry caused Prop 8 to succeed.

  5. Johnny

    To me it sounds if the Mormons have used there MONEY and POLITICAL power to get the California Supreme Court Justices!
    I live in Salt Lake City Utah and we presented FIVE Bills to the Utah Legislators and they were denied before they ever hit there desks!
    I am sure you heard Senator Buttars Ugly .Sick, Twisted remarks against the Gay Population…. We just wanted protection from Dicrimination and Hate Crimes and NOT Marriage!
    Like I said before we need to do this on a National Level ( OBAMA?) and revise the Bibles and other books of Religon to Remove any Remarks against Gays!
    Until then were are SCREWED!

  6. Johnny

    If you did not here the Nasty Remarks made by Senator Chris Buttars Of Utah against the Gays in America you need to pull it up the video on Google.
    He said the MORMON CHURCH feels the same way as he does and so does his friends in the House of Legislators!
    The Mormons are evil, two faced, ocult and not to be trusted what so ever! Buttars called Gays Perverts and an Abomination! LOL!
    Take a look at the MORMONS history and even Today with there bizzare Temple ritulas and There past in killing 120 Men, Women and Children for no reason what so ever!
    Joseph smith who practice the Black Arts and was a Lier and a Convict and Murderer! Lied about the Scrolls!
    The book of Mormon is nothing but a bunch of FICTIONAL LIES! Has been proven to be A fake!
    Go to you http://www.youtube.com and type in the search box “THE BIBLE VS. THE BOOK OF MORMON” it speaks and shows proof positive the Mormon Cult is one HUGE LIE!
    Mormons will take children and PLACE them on there Youth Ranch ( Ran By SENATOR BUTTARS ) and they are used as slaves for the Mormons and brain washed to believe there lies to be Breeders to make the Church Numbers Grow and there Money and Power!
    Mormons believe that Blacks were an abomination because they believe there skin was turned black by God for they were evil people until the laws of discrimination was put into effect in the 70's….
    ALL OF THIS IS BECAUSE OF THE MORMON OCULT RIGHT HERE IN UTAH AND THE WORLD AND THEY ARE TOTALLY RESPONSIBLE AND TO BLAME FOR PROP 8 AND THE SUPREME COURT JUSTICES DECISION WHEN THEY ANNOUNCE PROP 8 WILL BE ENFORCED! I want to share with you also how Mormons throw there Gay Children out into the streets right here in utah and we the Gays Find them food, shelter and help with any addictions and prostitution they used to survive on the streets!
    I know for a FACT and seen and worked in institutions for the old on or Mentaly Challenged where Mormon Families will Commit there Teens to be placed in these institutions just BECAUSE THEY ARE GAY!
    I WORKED IN THESE INSTITUTIONS AND KNOW THIS TO BE TRUE! There files show there placement in these institutions were soley based on Homosexuality!!! They place cameras in Parks to capture and place Gays in Jail ! Utah is like living in a Country that is ran by DICTATORSHIP! THAT IS A FACT! Everything you eat, drink, entertainment and much more is decided by the Mormon Occult and there servents called POLITICIANS!

  7. Brady

    What “minority”? Are they embarrassed to be gay? If not, then call it like it is – a choice.