Category ►►► Democracy Inaction

November 19, 2008

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

Democracy Inaction , Matrimonial Madness
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 | Comments (13) | TrackBack

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