November 19, 2008

If the California Supreme Court Doesn't Trust the People...

Hatched by Dafydd

...Then perhaps it should dissolve them and appoint a new people

As Big Lizards predicted earlier, the California State Supreme Court has agreed to decide several lawsuits that seek to overturn Proposition 8, the constitutional amendment -- on the grounds that it's unconstitutional. The lawsuits advance a novel legal theory of governance by the consent of the governors:

The lawsuits argue that voters improperly abrogated the judiciary's authority by stripping same-sex couples of the right to wed after the high court earlier ruled it was discriminatory to prohibit gay men and lesbians from marrying.

In other words, the voters improperly interfered with the court's right to decide all major moral issues.

Not to mention the fact that Proposition 8 does not "prohibit gay men and lesbians from marrying." It doesn't even mention gay men or lesbians.

Nor does it prohibit anyone from marrying any one (or any group); it only says such marriages will not be "valid or recognized in the state of California." Go ahead and marry a person of the same sex; call yourself married by the lights of your own house of worship; just don't check "married filing jointly" on your IRS 1040 form, unless you're inordinately fond of institutional cooking.

(And of course, it's just as valid for a gay man to marry a lesbian as for a straight man to marry a straight women. Or a lesbian.)

There is another exciting legal argument offered by at least one of the sets of plaintiffs' lawyers in one of the cases:

"If given effect, Proposition 8 would work a dramatic, substantive change to our Constitution's 'underlying principles' of individual [sic] on a scale and scope never previously condoned by this court," lawyers for the same-sex couples stated in their petition.

[Where the expression "never previously condoned by this court" means "at least not since May 15th, 2008," when the Court held -- for the very first time -- that the state constitution required marriage to be "gender neutral."]

The measure represents such a sweeping change [all the way back to the olden times of six months ago!] that it constitutes a constitutional revision as opposed to an amendment, the documents say. The distinction would have required the ban's backers to obtain approval from two-thirds of both houses of the California Legislature before submitting it to voters.

In other other words, the CSSC can utterly upend Western civilization by a simple 4-3 majority... but it takes a supermajority if two-thirds of both houses of the legislature in addition to a majority of voters to change it right back to the status quo ante, the law of the land before May, 2008... which, by an amazing coincidence, happens to be the exact same wording that is now called a "dramatic," "sweeping," "substantive change" to the "underlying principles" of our constitution. (Or the "underlying principles of individual," whatever that's supposed to mean.)

If H.L. Mencken were alive today, he'd be spinning in his grave.

Hatched by Dafydd on this day, November 19, 2008, at the time of 5:56 PM

Trackback Pings

TrackBack URL for this hissing: http://biglizards.net/mt3.36/earendiltrack.cgi/3353

Comments

The following hissed in response by: hunter

I have noticed for years that, for lefties, popular will is only valid when lefties agree with the results of the popular will.
Tossing out the will of the people on this will be a huge and lawful mistake.

The above hissed in response by: hunter [TypeKey Profile Page] at November 19, 2008 7:01 PM

The following hissed in response by: scrapiron

Calling them Supreme is a stretch. Calling them a court of law should be a felony.

The above hissed in response by: scrapiron [TypeKey Profile Page] at November 19, 2008 8:14 PM

The following hissed in response by: FredTownWard

hunter wrote, "Tossing out the will of the people on this will be a huge and lawful mistake."

,... but perfectly consistant with many similar past California Supreme Court rulings.

The real question is whether the Obama-supporting majority who voted for this referendum will finally "get a clue" when not if their vote is overturned,...

or will they just say, "Yes, Massa," before returning loyally to the Democrat Party plantation.

I'm (sadly) betting on the latter.

The above hissed in response by: FredTownWard [TypeKey Profile Page] at November 19, 2008 8:19 PM

The following hissed in response by: hunter

I accidentally forgot "un" in front of "lawful".
If the courts in California can now pick and choose what initiatives to the Constitution are acceptable, then the Cali Constitution is no longer a document controlled by the people.
I do not believe it is up to the Court in Cali to determine if an Amendment is valid.

The above hissed in response by: hunter [TypeKey Profile Page] at November 20, 2008 5:22 AM

The following hissed in response by: LarryD

Time for the people of California to recall some judges, I think.

The above hissed in response by: LarryD [TypeKey Profile Page] at November 20, 2008 6:02 AM

The following hissed in response by: Dafydd ab Hugh

LarryD:

Time for the people of California to recall some judges, I think.

Newsflash, Monday, November 9th, 2009: "California Supreme-Court justices declare recall of California Supreme-Court justices unconstitutional."

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at November 20, 2008 6:29 AM

The following hissed in response by: Chris Hunt

Newsflash, November 10, 2009. One or several California Supreme Court justices recalled to the dust from which they came. Violence will be the end result of our "betters" usurping our natural rights.

The above hissed in response by: Chris Hunt [TypeKey Profile Page] at November 20, 2008 7:44 AM

The following hissed in response by: Geoman

Whatever happened to the idea of persuading people to your way of thinking? Of reasoned argument?

How did an issue that was an oddity 10 years ago, suddenly become a fundamental human right?

And why does the left not honestly address the central issue for most of us. If marriage between same sex couples becomes legal (which I am personally okay with that), how then do we morally and legally justify prohibiting under age marriage, or polygamy, or what have you? What limit is then recognized?

Bottom line - progressives hate liberty, free speech, and free thought.

The above hissed in response by: Geoman [TypeKey Profile Page] at November 20, 2008 9:33 AM

The following hissed in response by: Consul-At-Arms

I've quoted you and linked to you here.

The above hissed in response by: Consul-At-Arms [TypeKey Profile Page] at November 21, 2008 12:04 PM

The following hissed in response by: N. O'Brain

Why don't they go whole-hog and just declare the Constitution unconstitutional?

The above hissed in response by: N. O'Brain [TypeKey Profile Page] at November 21, 2008 4:50 PM

The following hissed in response by: Chairm

Excellent summation, Dafydd.

I like your parting line: "If H.L. Mencken were alive today, he'd be spinning in his grave."

Heh. We can choose to laugh or to cry. Thanks for the humor.

* * *

Geoman asked:

Whatever happened to the idea of persuading people to your way of thinking? Of reasoned argument?

Well, for years at our group blog we've been trying to engage SSMers (those who support and/or advocate same-sex "marriage") in the actual disagreement over marriage.

Our motto: Defending marriage on the firm ground of reason and respect for human dignity.

We invite discussion at our blogsite but we also go out into the blogosphere, and into other public forums, in search of well-reasoned arguments in favor of merging gay union with marital status.

But we are confronted, always, with the first axiom of SSM argumentation: to disagree is an act of hatred, of bigotry, of irrationality. It is very difficult to clear away that underbrush.

That's becaue the SSM movement is not about marriage, but it is about identity politics of the gaycentric kind. Scrape the surface of the demand for the merger and you find the raw nervous system of an identity politics gone mad.

They are not for justice, but for "just us".

Of late we are told by SSMers that our reasoned approach is not emotional enough. See, the protestors are angry and they have unlimited moral authority because they are soooo angry.

If they yelled at us loud enough they actually believe they can move us to their side. I think the emotivism of the SSM movement is what sustains it; but that's also its profound weakness as a basis for leading society on the law -- on the contitution -- much less on the question of marriage. They, however, see emotivism, if they are even conscious of its central role in their argumentation, as their greatest strength.

That, obviusly, has more to do with the herding mentality than with rationality. Their anger plays to themselves.

On one hand, their voiced complaint is that we have no rational basis -- and no good reason -- to defend marriage has been thoroughly challenged and refuted. On the other hand, the new complaint is that we don't put enough emphasis on "love" -- i.e. the tradition of romance -- and compassion. However, we do offer a balance and we can do so because of the deeply rooted meaning of marriage.

No matter how we approach this issue, the SSMers cannot make room for even the slightest possibility that we are correct, have a principled basis even if our conclusion is disputable, or have moral standing to even discuss the actual disagreement.

Enough is enough.

The polling trends during the Proposition 8 campaign strongly suggested that had the vote been held a couple of weeks later, the Yes side would have likely reached the 60% mark of 2000 -- or perhaps bettered it. The No side squandered what looked an insurmountable lead out of the gate. But instead of blaming the leadership of the No side, or even the profoundly flawed SSM argumentation, the protestors would rather hurl insults at scapegoats.

Remember, with their early lead the campaign was theirs to lose. The Yes side rallied, and the Yes leadership deserve credit for a campaign that worked, but the No side also displayed its worst, and truest, flaws. When they realized the trajectory was in the Yes side's favor, the No side -- including the rank and file -- show true colors.

The days of protest are really just an extension of the indisciplined No campaign. And the campaign was based on identity politics from which they could not hide. Now, in the aftermath, they very freely demonstrate the fascist inclinations at the heart of the movement and its argumentation.

It is not just a fringe element on the No side that is of this mindest. Apart from a small minority of people who supported the No side while leaning toward the Yes side's pro-marriage position (I know very ambivalous), the overwhelming majority of the No side -- especially the gay/lesbian segment -- has been encouring the protestors. The chants of "bigots, bigots, bigots" is both their starting place and their end place. It is like they are pivoting around one foot and lashing out in all directions.

The protestors even hope that their rallies will persuade the justices on the high court! They are treating the judiciary like a superlegislature.

On all fronts, the mask has slipped.

I wish it were otherwise. If the defense of marriage is ever defeated, I would rather it be to a rational and balanced argumentation and a campaign with legtimate claims on public approbaton. Since it is what it is, all of use should fortify ourselves to fend off the attack on marriage and on our principles of governance.

For the sake of peace, brace yourself.

-- Chairm
The Opine Editorials

The above hissed in response by: Chairm [TypeKey Profile Page] at November 21, 2008 5:30 PM

The following hissed in response by: hunter

Chairm,
Well said.
This is the way lefties also deal with climate, national security, and immigration.
It is a disturbing devolution.

The above hissed in response by: hunter [TypeKey Profile Page] at November 22, 2008 6:15 AM

The following hissed in response by: Xpressions

Oh don't worry, if the liberal illuminati can't get the judges to go left, they will indeed appoint new people.

The above hissed in response by: Xpressions [TypeKey Profile Page] at November 27, 2008 9:08 AM

Post a comment

Thanks for hissing in, . Now you can slither in with a comment, o wise. (sign out)

(If you haven't hissed a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Hang loose; don't shed your skin!)


Remember me unto the end of days?


© 2005-2009 by Dafydd ab Hugh - All Rights Reserved