Mob Rule in California

When it comes to the fight over Prop 8, the legal argument is far murkier than the moral one.

By: Kai Wright | Posted: March 6, 2009 at 9:02 AM

Mob Rule in California

When it comes to the fight over Prop 8, the legal argument is far murkier than the moral one.

Kai

The future of California’s Prop 8 ban on same-sex marriage now rests with the state Supreme Court. To argue that the initiative is a shameful blemish on California’s constitution is easy. To prove that it is violates the law is a much tougher sell.

When it comes to the fight over Prop 8, the legal argument is far murkier than the moral one.

03/06/2009 09:02

Sure, Ken Starr’s a creep who’s made a career as the right wing’s legal hatchet man. But when he told the California Supreme Court yesterday that it couldn’t throw out Proposition 8, he was probably right.

Don’t get me wrong: I think Prop 8, which repeals previously granted same-sex marriage rights, is a shameful blemish on not only California’s constitution but on all of American jurisprudence. And I’m no constitutional law scholar, to be sure. But Starr’s argument that Cali’s voters had every right to bar same-sex marriages in November was as compelling as it was gross. The state’s initiative process, he asserted, was created generations ago to grant the people the power to govern, even when they make “very unwise choices.” Like it or not, it’s been mob rule in California ever since.

That mob rule banned affirmative action back in 1996, setting up copycat initiatives around the country and plunging black student enrollment at UCLA to a lousy 96 students by 2006. Two years earlier, voters passed the infamous Prop 187, which stripped a host of rights from undocumented immigrants, though a federal court threw it out after years of political and legal wrangling. In the late 1970s, the mob upheld the death penalty, even though the court had ruled it unconstitutional.

Now, the mob has enshrined anti-gay discrimination into the state’s founding document. In doing so, it may have also taught the gay rights movement a difficult lesson that black folks learned long ago: In America, the business of winning rights is a messy, often bloody battle best fought in the streets, not in the courts.

A bevy of lawyers, including those for the city of San Francisco and the state attorney general, argued yesterday that the court cannot let the mob’s assault on gay rights stand. They implored the justices to remember their May 2008 ruling that so triumphantly declared marriage a fundamental right for all couples, regardless of gender. They insisted that voters can’t just take that right away. Given the tenor of the justices’ questioning, the effort was probably as vain as it was valiant. We’ll know when the court rules, sometime in the next 90 days.

While the moral case for knocking down Prop 8 is clear to many, the legal case is murkier. The argument is as follows: Prop 8 did not amend the California constitution, but rather revised it. The distinction is key because amendments can happen by initiative, but revisions must go through a far more strenuous legislative process. All sides agree on the long-settled legal question of what constitutes a revision versus an amendment—a revision makes a structural change to state government by, say, redefining the powers of the executive branch. The question is whether Prop 8 meets that standard.

Marriage rights advocates and the city of San Francisco assert it does (notably, the AG doesn’t, but that’s a long story). The court’s May 2008 ruling established that marriage equality is covered by the state constitution’s equal protection clause. And changing the equal protection clause, the marriage rights lawyers argue, is as much of a structural change as can be imagined.

Problem is, there’s no legal precedent for that argument. And there’s loads of precedent for Starr’s counter—namely, that no matter how ugly we find the people’s choices about who gets what right, in California the mob is the decider.

The unavoidable truth behind the whole discomfiting exchange yesterday is that gay rights cannot be won inside the staid confines of a courtroom, not in Cali or anywhere else. I know; this is the right’s argument as well—that voters alone can make these sorts of sweeping social decisions. But the unfortunate reality of American history—Western history—is that oppressed people don’t litigate their way into enforceable equality. The courts are inherently conservative; their leadership in expanding and redefining rights is exceptional, not normative.

For all of the NAACP’s masterful and creative legal work on civil rights, real progress came only once southern blacks forced the issue upon society at large, not just upon judges. Ditto for abolition. I’ve just finished Adam Hochschild’s vibrant history of the British abolition movement—which invented many of today’s standard-issue political tools, from boycotts to political art. These are the weapons that the gay rights movement lacks most, not inventive legal arguments.

This is not to say there is no place for a legal struggle in this or any other battle for human rights. Gay rights lawyers have, in fact, already logged some impressive victories, including a U.S. Supreme Court ruling throwing out state sodomy laws. But without an aggressive, sustained grassroots political campaign, the lawyers are left arguing with one law-book-clutching hand tied behind their backs. As I’ve written for The Root and, at more length, in ColorLines magazine, the fight against Prop 8 has shown an unforgiving light on the gay rights movement’s failure to mobilize just that sort of campaign.

As a card-carrying political queer, I regularly receive fundraising pitches from the Human Rights Campaign, the nation’s largest gay rights group. The unmarked envelopes in which these solicitations arrive make me wince every time. They quietly ask me to quietly donate money to the all-too-quiet work of lobbying lawmakers to please give me rights. It’s a small matter, but it reinforces for me the movement’s larger failure—one that is inherently clear to me as a descendant of slave rebels, freedom riders and political martyrs. America never gave anybody rights; we’ve always had to wrest them free for ourselves.

Kai Wright is a senior writer for The Root.

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Mixed-Up on Gay Marriage

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Posted: Sunday, August 16, 2009

In response to __think_first__.

monopolykilledme

I am sorry that the end of my comment truly saddens you. I meant that in a very tongue-in-cheek way. I really don't feel that it should be that way at all either. But because people feel so strongly about it, that is pretty much the way it seems to be- because no matter which way the pendulum swings a group of people will feel as though they have been wronged.
I too live in California and have kept up with all of the surrounding issues that you speak of.
I actually agree that this issue has been (or is) an attack on religious freedom. Here is why: We are free to believe whatever we want to believe. We are free to practice our religion in the ways that we see fit. What we aren't free to do, is force other people to adhere to our religious views. To do so is an attack on religious freedom for people who do not believe in the same ways that we do. When everyone is free to believe and practice what they wish for themselves, then all of our religous freedom is secure. To use Christianity, biblical scripture, etc. to back up or dictate what is state or federal law is unconstitutional and does not allow for other religions or interpretations. That is not religious freedom. (A legal definition and a religious definition are two different things. You, your religion, or church dictates the religious aspect. Not the law.) These are some of the same reasons that I believe it is a civil rights issue. It is about allowing another group of people to believe and practice what they wish without denying them that same right under the law. Please enlighten me as to how my version of "winning" would take away civil rights from many people.

Posted: Saturday, March 28, 2009

in response to monopolykilledme

__think_first__

Sometimes when I write a long post my main points get lost in translation, or lost/misconstrued within my other minor points. For that reason is why I promised in my last post to stop coming up with comparisons/analogies and debating their worth to the subject at hand, which can go on and on all day without making any progress. So for now on I will not address them, because I believe that I have sufficiently done so in our previous conversations. Being a California state resident myself, I had the misfortune/fortune (however you want to see it) of having to be in the middle of the Proposition 8 political game of words. So before voting on it, I educated myself about what exactly it would mean to all Californian’s rights if it were to pass, because to change the constitution (either state or federal) is a very serious matter and should never be taken lightly. While doing so I found out that the story about this issue actually goes back to 1977 when California law through the state legislator, specifically defined “marriage” as between a man and a woman. Later on in 2000, California voters by a large margin passed proposition 22 where voters legitimized the definition of marriage as between a man and a woman, while at the same time adding a new definition for same sex couples called domestic partnership. In 2003, our state legislators upgraded domestic partners right’s by giving them some of the rights that civil union couples in Vermont enjoy, which in the state of Vermont, couples with a civil union are guaranteed all right’s that married couples receive. In California, after a few years of back and forth between partisan California legislators and judges, and activist groups both gay and straight, our state gave the people a say on the issue to hopefully end the debate. By the time of the vote, domestic partners had most of the same rights as married couples, and proposition 22’s definition of marriage as 1 man 1 woman was thrown out. At this point for me the issue went beyond equal rights for gay couples, to an attack on other American’s civil rights, i.e. most of the religious groups. If the main issue was about civil rights for gays, why not demand all equal rights for domestic partners, instead of attacking other American’s religious rights by taking away the legal and religious definition of marriage? As I said before, your personal intentions not to make it an attack on freedom of religion is irrelevant and unintended consequences are immeasurable. The ending lines of your last post truly made me sad. “I guess we'll just have to see who wins. But I hope that whatever happens, it is as fair as possible.” The problem with leaving it as to see who “wins”, shows that you still have the “it’s my way or no way” mentality which is not beneficial to either party and defeats the purpose of trying to coming up with a compromise. Besides, if your idea of win were to occur, it would be taking away civil rights for many people, which could never be considered fair.

Posted: Wednesday, March 18, 2009

Closing argument and LOL

Light

Hello,

I believe that everyone has got strong points to counter argue. But I would like to say, the key thing here is mutual understanding/agreement and respect. Because, verily, there are many contradictions/conflicts as far as definitions are concerned and this is pretty much what laws and statement of rights are about, as I previously mentioned.Though I am completely sure that there is no "absolute freedom/democracy" otherwise, we are leading to chaos (anarchy), again as I previously mentioned. Life is "simply complex". ("Simply" and "Complex" contradict each other, yet they form a nice combination here. :D)

We keep speaking about rights, whether it's heterosexuals or homosexuals, we all have rights, but I believe, not to say that we can't do whatever we want, but instead, I would say we should not do whatever we want if ever we want to respect others and be respected in return. Everything has got a limit in life. Not only alcohol, but even the pure water in excess can lead you to severe health disorders and you should not say that you have the right to drink all the water you want unless you want to die, and then don't blame doctors for not having saved your life.

A simple example, let's take the case of smoking. If someone wants to smoke, he/she is free to do so and the later can claim that it's his/her right to do so. But if I don't smoke and I don't want to be a passive smoker, then I also have the right not to be a passive smoker because I simply don't want to affect my health just because someone else wants to smoke. So the smoker will have to smoke somewhere in private so as not to annoy non-smokers. Now, if he comes up with that he has got the right to smoke wherever and whenever he wants because he has the freedom/right to do so, then scientists will have to invent a new cigarette that will allow the latter to smoke in the presence of non-smokers and you will have other complications like to how much your little cigarette will now cost or how bulky/practical it will be. In some countries, public smoking is banned, and yet, you will see people smoking in public + the police might not do anything about it + the passive smokers might as well not be complaining about it at all even though if they might be feeling uncomfortable.

So we will keep running in an "infinite loop" as long as we don't find some sort of mutual agreement. If some people say that the word "marriage" is only for heterosexuals based on its previous definition, then either its definition will have to be revised, or we might come up with something for homosexuals that describes them as being in a state of legal union. I believe that homosexuality has been in existence for a very long period of time, if not all the time, but it has never been uttered as freely as it is being nowadays, could be because of the fear of a predominated heterosexual society and/or religious prohibitions. And the mere fact that we can hear their voice today is because we have indeed become more tolerant + owing to more homosexuals willing to fight for their cause, and that's a sign of progress I would say if we are more tolerant. I guess it can be considered as new to society in the sense that it is now being supported and freely uttered, at least partially if not fully. As such, if there hasn't been any word to define their legal union and heterosexuals want to keep their "marriage" definition, then define a new set of words for them that will allow them to have fair rights, but which would probably and ironically be as similar as that of heterosexuals'. Etymology keeps evolving and we keep using new words, especially with the rapid development of technology.

And I repeat again, there is no “absolute freedom” and everything has got a limit in life. Various rules apply for different various circumstances, universality is rarely achieved if not never, and we are bound to see further changes in the future. Like saying, existence of God can neither be fully proved wrong nor fully right as such one morning you wake up and He speaks to you ;). It's up to you to believe, but I guess, ironically, we'll all know it once we'll be dead, and for the time being we can't ask the deads unfortunately. (Because T-Mobile and the others don't provide network coverage to communicate with the deads - haha :D)

If the rate of reproduction is on the fall, then scientists might come up with something, may be extensive cloning etc, and you will once again have people for and against cloning, haha, back to the endless arguments again :D
(or you will always have people like me and other heterosexuals to do the job to save the human species ;) haha.)

PEACE :)

Thank you for reading.

Posted: Friday, March 13, 2009

To bkj.

monopolykilledme

Separate but equal has nothing to do with plumbing. The main issue is not that the facilities were comparable, but that they were separate. And the facilities were not comparable, history has shown. (If I told you that the toilet in the "Colored Restroom" was never made to flush, then what? I'm sorry but I don't think the plumbing theory logically flows.) You also say that civil unions offer all of the same benefits as marriage and they don't. I also do not think that plumbing has anything to do with marriage anyway. If you are going to adhere so strictly to the definition, then you should easily see that it says nothing about "plumbing". The traditional ideal family can not be legally forced or regulated in the same sense that you suggest because these days they come in many forms and many different supreme court cases and laws support that. Worst case scenario, nothing would change for you (other than being disgusted that gays could marry) because whether you think it's natural or not, the same gay couples are living their lives as homosexuals so whether or not it is "most benefitial for society" does not come into play in the way that you suggest. Some people are unable to procreate. Some people procreate without marriage, etc. So that is also not an issue. We have single mothers and fathers. In vitro fertilization. Birth Control. Chapel marriages. Vegas marriages. I could go on and on and virtually every surrounding issue has been tackled in a similar manor in terms of privacy rights, family law, inclusive equitable definitions, etc. Yet gay marriage continues to cause such an uproar. I've heard many different quips about a definition being a definition. But as for your wife's backflip analogy- does she not know how to do a backflip or is someone just preventing her? I'm sorry, I don't quite understand the connection. (I'm really trying though.) I do agree with you that where equality truly exists it should be freely granted. That is why I feel so strongly the way I do.

Posted: Friday, March 13, 2009

Mob Rule in California

When it comes to the fight over Prop 8, the legal argument is far murkier than the moral one.

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Mob Rule in California

When it comes to the fight over Prop 8, the legal argument is far murkier than the moral one.

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Slate

The Big Money

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