Infinite Monkeys

Nice Jim. I hope you don't mind me providing a link to this item from a topic I just now posted at redblue. It seems to be a HOT issue today. Whew 100 degrees in Redwood City today.

Don't mind at all, John. And thanks.

Link away, drawing as much attention to this post -- and this issue -- as possible.

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Jim, although I usually consider myself pretty conservative, I have to say that I am honestly torn on this one. I do think that it is incredibly scarry for the judicial system to act as a legislative branch. I especially don't like that they are overiding the voice of voters.

That being said, I guess that I also feel sympathetic to the gay community in wanting to be granted theright to marry. After all, they deserve to be as miserable as the rest of us.

Seriously, it is a complicated issue that should not be decided in the court system. That much is indisputable.

Dear Jim,

You haven't lost your knack for " provocative " thinking, how can I post on your new home? Too much to say for just a comment!!

You should pay a visit to redblue sometime, some of my stuff will get a reaction from you.

Best Regards,

Minuteman,

I hear ya, dude. I've also struggled with this issue. I have people whom I love dearly who are gay, and are married. I agree that they should have all the legal protections of a civil union -- which California grants. That was, if you remember, what birthed the "gay marriage" debate in this country: Gay partners not being legally granted the power of attorney, a place at the bedside in the hospital, etc.

But it's morphed to something different since then, hasn't it? And the conflict I feel is that the traditional definition of marriage should not so carelessly be trifled with. I've outlined the trouble that could cause in my post.

The bottom line is that these are questions for the people to decide, not judges by fiat.

Gilbert,

The comment section has no limits on length. So write away, and we can have a nice long conversation.

I will come over to RedBlue and check out your stuff. I'm reluctant to post stuff because, well, the organization that runs that site screwed over my friends. I prefer not to reward that.

But, like I said: If you have something to say on this subject, I'm eager to hear it. Unload your thoughts in the comments here.

Yours is the first optimism I have found in this decision. Thank you for leading me to the light.
Aloha,
Keahi

Thanks, Keahi.

Don't be a stranger around here. There's lots of light.

Cheers!

Zaius

Hi Jim:

I would have taken the bait earlier, but I wanted to actually read the California Supreme Court's decision before commenting. Some thoughts:

* It's possible -- possible -- that I could agree with you that the California Supreme Court had overstepped its bounds, but I have a hard time with the word "tyranny" in this context, because I think it signifies a constraint on freedom or action. How are you or any other Californian constrained or restricted that you weren't two days ago? What's happened is that a greater number of people have additional freedom to act. From where I stand, that doesn't look like tyranny.

As the California Supreme Court said: "Opposite-sex couples will continue to enjoy precisely the same constitutional rights they traditionally have possessed, unimpaired by our recognition that this basic civil right is applicable, as well, to gay individuals and same-sex couples. "

It would also be tyranny if the California Supreme Court could impose its vision by fiat -- but as you yourself note, that's not the case: The people of California, never shy about statewide referendums, will get to vote on a state constitutional amendment. It is they -- and not the court -- who will have the final word. So it's hard for me to see where the tyranny is.

* Turning to the ruling, it is true that there is not an explicit right to marry contained in the California Constitution. But there has nonetheless been a longstanding recognition that some rights in that constitution -- to due process, to privacy -- create in California a right to marriage. And it's important to note that neither side in this case was disputing a right to marriage under the California Constitution.

* But the California Constitution, the court notes, does "not purport to reserve to persons of a particular sexual orientation the substantive protection afforded by those provisions." So the court refuses to impose restrictions that the Constitution itself doesn't make. That seems ... conservative to me.

* So if the argument, then, is that gay couples in California have all the rights and incidents of marriage without getting to use the word "marriage" -- well, I've said before that I don't actually care about that argument. But I'm not gay. And the court says that use of the word "marriage" is part of the dignity and recognition included in the right to marry-- and thus might violate the equal protection enjoyed by all citizens.

I could go on and on, but it would basically be a recap of the majority decision. And I doubt that I'll persuade you that it's a good one. Some final thoughts.

* Reading through this decision, it seems to me that it is a very *California* decision, and I don't mean that disparagingly. What I mean is that it seems very grounded in California law and culture and would thus be impossible to duplicate in states less receptive to it -- say, like my home state of Kansas, where there's already a state constitutional amendment prohibiting same-sex marriage.

* In arguing against a "judicial tyranny," Jim, I think we run the risk of creating a legislative tyranny. Most constitutions -- and I'm not terribly familiar with the California version, so please forgive -- recognize the judicial branch as a co-equal branch of government, not an appendage that merely confirms and ratifies the decisions of the other branches. And it seems to me that conservatives argue that if the legislature does something, it's ipso-facto constitutional. I don't buy it.

I'm tired. Must get breakfast and think about something else now.

Hi Joel. Lemme take some of this point by point:

It's possible -- possible -- that I could agree with you that the California Supreme Court had overstepped its bounds, but I have a hard time with the word "tyranny" in this context, because I think it signifies a constraint on freedom or action. How are you or any other Californian constrained or restricted that you weren't two days ago? What's happened is that a greater number of people have additional freedom to act. From where I stand, that doesn't look like tyranny.

I guess we have different definitions of tyranny. What four of seven justices on the California Supreme Court did yesterday was usurp the freedom of California voters to define marriage. The court invalidated a 2000 referendum, passed by a huge majority, to insert the "man/woman" language in the state code. The ballot initiative this year will put the language in the state constitution -- hopefully protecting it from another attempt at judicial cancellation.

Turning to the ruling, it is true that there is not an explicit right to marry contained in the California Constitution.

So maybe the judges should not be inserting one. That's the job of legislators and the people.

And it's important to note that neither side in this case was disputing a right to marriage under the California Constitution.

I haven't looked into this fully, but my understanding is that the uber-liberal California Attorney General -- the former Gov. "Moonbeam" Jerry Brown -- was pretty lukewarm in his "defense" of the 2000 referendum. But, fair point. And I'm not a lawyer, so I'm going to skip to the end.

In arguing against a "judicial tyranny," Jim, I think we run the risk of creating a legislative tyranny. Most constitutions -- and I'm not terribly familiar with the California version, so please forgive -- recognize the judicial branch as a co-equal branch of government, not an appendage that merely confirms and ratifies the decisions of the other branches. And it seems to me that conservatives argue that if the legislature does something, it's ipso-facto constitutional. I don't buy it.

At least "legislative tyranny" -- a concept I generally reject -- has the benefit of enjoying the consent of the governed. Judicial tyranny does not. And a co-equal judiciary would defer to the consent of the governed in all but rare exceptions, not deciding that the will of the people as expressed in the legislature and by referenda doesn't fit their views, so must be overturned.

The radical far left is on the verge of obtaining absolute control of the federal government. The rule of the people is a memory.

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I could care less if two guys get married, or two girls, but four people should not be able to over-rule millions. That’s certainly not government by the people. It’s execution of a personal political agenda by activist appointed judges. The people of California decided the issue; radical elitist determined that the majority of the people in the golden state were just too stupid to make the proper choice,its Democrat politics 101. They know what's best for us all.

I'm with Joel on this one. The justices did NOT do what the Massachusetts court did, which was "find" a right to gay marriage in the commonwealth's constitution. Rather, they simply recognized that without a constitutional amendment to formally establish the distinction, a law must not exclude the term "marriage" from gay unions.

This is what appellate courts are SUPPOSED to do - invalidate laws that don't meet constitutional standards. This is not Roe v. Wade territory, creating new rights (and invalidating state authority) out of whole cloth. It's instructing legislators and the citizenry in the path they must follow to pass constitutional laws, and on what constitutional modifications must be made to avoid the obstacles.

And that ain't tyranny, folks. That's checks and balances.

Now, I obviously would prefer that government get completely out of the "marriage" business. But in the real world, I think rulings like this do precisely what they should: Keep what may be a slim majority (particularly in California) from imposing their will on a minority without due consideration of the consequences and the proper process.

Robb. You're wrong on this, dude. The majority decision is full of lots of disingenuous language, but the justices did, in fact, find a right for gays to marry in the constitution. More precisely, they found that putting the traditional definition of marriage in a statute violated the constitution. That's finding a "right" in the constitution to override the statute.

Indeed, the justices were explicit in their contempt for the will of the people of California. From the majority decision:

“[i]t is irrelevant that the voters rather than a legislative body enacted [the challenged law], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation.”

That smells kinda tyrannical to me.

Dissenting Justice Corrigan has the "checks and balances" thing right:

In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent.

I'm frankly surprised, Robb, to read a libertarian like you take the position you did. But, we can disagree with good humor and respect.

I think the quote from the majority decision that you cite shows precisely why the court was acting within its constitutional charter. While California (like my own state of Arizona and several others) includes several direct democracy structures (in this case, Initiative) the laws passed by those structures must still meet the constitutional test.

As far as I know, the constitution of the state of California does not formally discriminate against homosexuals with regard to marriage. In the absence of a constitutional definition of marriage that excludes a class of people, any law that restricts the rights of that class based entirely on their choice to engage in an activity that is both legal and consensual, or based on the particular gender mix of the individuals involved, should not be allowed to stand. The constitutional amendment is the right legal mechanism to accomplish this, not a statute.

As Joel said, there is nothing that heterosexuals CAN'T do as a result of this ruling. As far as I can tell, this ruling is a check AGAINST tyranny - the "tyranny of the majority."

It might surprise you to know that I'm personally opposed to gay marriage. But I'm also opposed to using state power to regulate an institution that is none of the state's business. Even if it IS the state's business, there is a constitutional process that must be followed.

I should note that I'm not alone among professing libertarians in holding this view.

You seem to imply that if the Constitution doesn't state something explicitly, then the right doesn't exist. The Constitution doesn't say that only legal citizens of the United States can have driver's licenses. Is it then unconstitutional for the legislature to approve a statute barring illegal immigrants from getting them? Especially when they are able to get other services from the state?

The California Supreme Court decision is especially egregious because gays were not being discriminated against in any significant legal sense. Yet four judges decided to overturn the will of the people anyway. That's not good.

And, again, by this court's justification -- and, it seems, yours -- polygamy should also be legal in California. Or does a polygamist have to sue the state first and demand that the California Supreme Court grant it a "right" to marry multiple spouses (which would be, I presume, of either sex).

"You seem to imply that if the Constitution doesn't state something explicitly, then the right doesn't exist."

That's certainly not what I was trying to say. In fact, what I'm trying to say is closer to the opposite: If the constitution doesn't explicitly omit a class from sharing in a right that is assumed for the general population, then limiting that right by statute should not be permitted. Remember, it's not the court that wants to limit people's rights here, it's the people who passed the statute.

Your illegal immigrants argument is a red herring, but I'll take a couple of minutes to pursue it anyway. Why? Because I'm a simian and I'm easily distracted.

1. Neither I nor anyone else that I'm aware of would argue that the right to drive a vehicle on publicly owned motorways is either an inalienable or constitutional right.

2. That said, I don't think ANYONE (citizen or not) should have to get permission from the state to operate a vehicle.

3. Tying access to the government teat to acquisition of a driver's license is just stupid.

4. I'm against state services, period. Focusing on whether or not illegal aliens have access to them is missing the point. If the government is going to steal my money, it doesn't matter who they're giving it to, what matters is they're stealing it.

I could go on.

As to the "Santorum objection", I have already weighed in on that subject.

Indeed. The Federal Income Tax is unconstitutional; Never ratified by 2/3 state amendment requirement process.

And in large part, you don't even get opportunity to pay it. It is simply taken outright.

constitutionality is typically only a boon for lawyers and mouth-pieces.