It is the will of 52% of a voting public over 48% that changed the stance of California’s Attorney General Jerry Brown. He has filed suit to overturn the Proposition, writing that the courts have already said that the right to marry is protected as an “inalienable right.” Brown writes further that a “tyranny of the majority” would be established if a ballot initiative could to take away an inalienable right. This is something that the Constitution was designed to prevent.
The sponsors of Proposition 8 are championed by Kenneth Starr, dean of Pepperdine University's law school, and the former independent counsel who investigated President Bill Clinton. He argues that by upholding the initiative and invalidating 18,000 same-sex weddings performed before the election, the court would preserve the people's lawmaking powers. "Proposition 8's brevity is matched by its clarity,” Starr wrote. “There are no conditional clauses, exceptions, exemptions or exclusions." He would know since he was one of its authors.
Although I am not a lawyer, it occurs to me that there is also the pesky matter of ex post facto law; also known as retroactive law, and prohibited by the Constitution. The American Heritage New Dictionary of Cultural Literacy, Third Edition, defines an ex post facto law as, “A law that makes illegal an act that was legal when committed." In the case of Proposition 8, same-sex marriages may no longer be performed, at least for now. However, to invalidate marriages performed while they were legal makes the Proposition an ex post facto law.
The new bigotry has plenty of articulate spokespeople to espouse its specious cause. I would be interested to know what they think about repealing laws that prohibited marriages between blacks and whites. But that is the old bigotry.
Article comments
— go to most recent comments1 - Seamus the Terrible
How come no one cares or talks about the impact to society of deviating from the "gold standard" of marriage.
And don't give me that "high divorce rate" crap about conventional marriage. When done right, it is still the best thing out there.
Anyone out there want America's kids to have second best? I don't.
So I'm not a bigot...just an observer of what works best and what doesn't. Straight marriage done right...that's the standard.
Another thing...rights are rights to action, not rights to stuff or privileges. It means you can live in an orderly society and to have a redress of grevances when injured. Its not about all this other stuff (marriage, a job, health insurance, etc. etc.). Give me a BREAK PLEASE.
2 - Glenn Contrarian
Good article, and thanks for the education on ex post facto law.
Seamus -
How about the rights to life, liberty, and the pursuit of happiness? It's funny how the Republicans cozy up to the 'Reverend' Sun Myung Moon and the thousands of arranged marriages he makes every year between people who have NEVER met before the night they get married, but raise Cain about two people who meet and court and propose and marry, whose ONLY difference from the classic Western way of courtship lay in the fact that they're the same sex and mostly must hide their relationship.
Seamus - could someone convince YOU that you should only date guys, that you should marry and live the rest of your life with another guy? No? Then how can you possibly think that a true homosexual can be convinced that he MUST be attracted to ONLY women?
Are American citizens who happen to be homosexual still American citizens? Do they not still have the SAME right as the rest of us to life, liberty, and the pursuit of happiness?
When I was much younger, I was quite prejudiced against homosexuals - such was de riguer where I came from. But the years passed, and in the Navy I watched those I knew to be gay or lesbian who were patriotic and did their duties honorably and well...but were discharged for the SOLE 'crime' of being homosexual. That was when I began to see the bigotry of such policies...and the authors of those policies.
But last week I got a belly laugh! It seems that President-Elect Obama is considering an openly gay man named Bill White to be Secretary of the Navy! Whoooooo...I can just see the faces of the officers and senior enlisted....
3 - Bob
Every society must have rules that the majority support. If every rule that the majority supports is deemed tyrannical, then what's the point of having majority rule? Just have dictators decide everything. Since when is marriage an inalienable right? I'm no constitutional scholar, but I thought it was, life, liberty and the pursuit of happiness.
4 - Doug Hunter
Gay marriage is an issue of morality, just like prostitution, polygamy, bestiality, incest, etc. There is no 'right' to any of the above although they all should be legal in my opinion.
So, on the basics we're in agreement I just wouldn't use the hateful tone and namecalling to people who disagree with my values. Virtually everyone's values are 'bigotry' to someone else making the term meaningless without further explanation, essentially an expletive.
5 - Baritone
Same sex marriage is second best? In whose eyes? There are millions of gays who, I assume, would have a differing opinion on that one.
Heterosexual marriage the "gold standard?" Please! I constantly wish that this country would pull its collective head out of its bible wielding, puritanical ass.
The sanctity of marriage? Marriage?? A union that can be established in Reno or Las Vegas by a couple of blind drunk idiots at 3AM after having met an hour before in a ritual held in a drive-thru "chapel" administered by an Elvis impersonator and witnessed by Elvira. A sacred union? Kiss my ass!
I've been married to the same woman for over 36 years. I love her and cannot conceive of life without her. That has nothing to do with a marriage certificate, nor the archaic rite we went through back in 1972. It IS about a relationship which, in my mind, trumps any laws.
However, I would be thoroughly pissed if someone came forward to tell us that our "marriage" was to be nullified because some tight assed self-righteous buttheads who for whatever reasons decided to codify their disapproval through legislation, or as in the current situation with
Prop 8 in California, through referendum.
In a free society, which this is advertised to be, personal relationships should be none of anybody's damn business. Christians are such fucking busy bodies. Tend to your own damn knitting, and quit trying to spread your fucking self-imposed misery to others who want no part of it!
B
6 - Clavos
B-tone,
Stop equivocating and tell us what you really think.
Get off the fence and take a stand, dude...
7 - bob
Hey Doug, That's pretty much my point about majority rules. Every opposing view can be deemed as a bigitted view. So then after a majority vote, the issue is resolved to the view of that majority. There has to be a loser. The gay folks just need to accept it. Somebody will always lose. Tough nuggies.
8 - Dave Nalle
Anyone out there want America's kids to have second best? I don't.
When the choice is between 'second best' and being doomed for life by the abominable foster care system I'll take second best every time.
Dave
9 - Baritone
Clav,
Waffle is my middle name.
B
10 - Baritone
Bob,
"There has to be a loser. The gay folks just need to accept it. Somebody will always lose. Tough nuggies."
That's easy for you to say so long as it's not your rights that are being affected.
How accepting and philosophical would you be, do you think, if the shoe were on the other foot? Would you simply nod in acceptance and resignation and fade off to a dark corner and lick your - well, lick your wounds?
We are talking about basic rights. Rights to pursue happiness. For many, that includes loving and perhaps marrying whomever they choose. Neither race nor gender should be at issue. If the government says that I cannot form a legal union with someone based upon their gender, then my rights to pursue happiness as I see it are being abridged.
On the other hand, if government kept its stupid nose out of personal relationships, I cannot imagine how a gay couple up the street being married affects me in any way. It does not "endanger" my marriage. If my, or anyone's marriage falls apart, it very likely will have had nothing to do with g/l couples forming legal unions.
B
11 - Tony
Great article but I think the main point here is that the term "marriage" refers to a religious sacrament. The government has absolutely no right under the Constitution to legislate in a religious matter.
If Churches don't want to marry gay people that is their right as private institutions (although do receive unconstitutional tax breaks) but the government has no right to strip any American citizen of their full legal rights to union.
This is, most definitely, the new bigotry but it is also religious zealotry at its worst. It is no different than Muslim religious beliefs that women are second class citizens. America should be ashamed at itself that we are still this ignorant.
If the religious freaks want a government run by their own religion that create a new country somewhere without our wonderful secular constitution. And don't give me this, the constitution has God references crap; we all knows its secular.
12 - bob
Hey baritone. The gov't. doesn't really care about whatever personal relationships people have. They do have a say in 'legal unions' in whatever shape or form. Legality is a gov't issue.I don't understand how you don't see the difference. Laws are written rules that are gov't duties. Who you hang with or live with or whatever is not their business. When you look for a legal distinction, it becomes a gov't issue.
13 - Dr Dreadful
No shit, Bob.
Unfortunately for your ridiculously circular argument, government clearly does care about personal relationships, or it wouldn't make laws (Prop 8 et al) restricting them. Capisce?
14 - Dr Dreadful
This clearly would be an ex post facto law and Starr and his people must know it. If Prop 8 had specifically referenced and reaffirmed Prop 22, that would have been another matter - but it didn't.
So it's hard to see what Starr's true motivation is, if it's not bigotry and/or sheer spite.
15 - bob
OK I give up. We have rules so that society can function without too much animosity. We try to set guidelines that are acceptable to the majority. Let's get rid of all the rules and let anarchy reign. I really don't care what the gays do, but in sympathy gov't functions I do believe we rules that the 'majority' agrees on. 52 to 48, game over. I've lost many times in my life, and I do my best to get along and move on. To keep kicking and screaming like children 'til you get your way is a bit much.
16 - Dave Nalle
Bob, the reason we have the rule of law rather than the straight rule of the majority is so that when the majority holds an opinion which justifies the persecution of a minority that minority has some protection under the law.
This is why referendum systems like the one in California are so disastrous and such a waste of time.
Dave
17 - Dr Dreadful
We have rules so that society can function without too much animosity.
How's that working out for you in California?
Let's get rid of all the rules and let anarchy reign.
No, let's get rid of the bad laws that deliberately unempower and disadvantage a segment of the population.
I really don't care what the gays do, but in sympathy gov't functions I do believe we rules that the 'majority' agrees on.
Wrong on at least two counts. The US Constitution is specifically designed - see Article 5 - to prevent 'mob rule'. Also, the vast majority of laws are enacted not by direct popular referendum but by the federal, state and local legislatures.
To keep kicking and screaming like children 'til you get your way is a bit much.
So would you agree that Kenneth Starr and his cronies need to stop their shit right now?
18 - jamminsue
Marriage is a legal status, allowing such things as visitation rights when a partner is sick and other stuff like inheritance. Prop 8 intruded religious beliefs on a civil legal issue.
IF one viewed gay marriage as a religious issue, then this is to be considered:
One reason why tolerance was such an issue to our founding fathers was the multitude of religious groups that had found safety from persecution on this continent. What if there had been a law stating people could only worship at the Puritan church? Or the Quakers? Or the Humanists? That would have destroyed this country, and is the reason "tyranny of the majority" was originally created.
Either way, the founding father's ideals for this great country trump Prop 8.
And, who said a gay couple would be "second best" parents? Parenting is a skill, not a sexual orientation. Sadly, it seems to me, good parenting skills are no longer the norm in this culture.
19 - Tony
Its refreshing to read that their are people in this country who still grasp the concept that we are a republican; not a state run by mob rule.
The Constitution was created to prevent the popular bigotries of various times from impeding upon the rights of all citizens.
20 - Tony
*republic -- wow that was a bad slip. I was on the bigotry topic so I guess that was a Freudian slip.
21 - bob
If you think that lawmakers and politicians don't pay attention to what the majority wants, then I've got some swampland for you .Certainly there are times when they go against the majority to try and right a perceived wrong, but a majority of the time. Check out all the laws on the books and I'll bet you that the majority agree with most of them. Remember immigration? They flooded the phones until they cracked under the will of the people. Most people don't care about this gay thing, but if it opens the floodgates to something else, that's what they're worried about. Unintended consequences.
22 - Dr Dreadful
This is why referendum systems like the one in California are so disastrous and such a waste of time.
Agreed. Which is why we don't have one in the United Kingdom. Special legislation is needed to put even a single referendum question to a public vote. It's usually only been done when the matter involves national sovereignty or constitutional questions - issues so fundamental to the functioning of the Union that nothing short of a direct public vote is satisfactory.
There has only ever been one referendum involving the whole UK: in 1975, regarding whether we should stay in the European Common Market. There was a vote in Northern Ireland in 1973 on whether the province should remain part of the UK or unite with the rest of Ireland; and referenda in Wales and Scotland (twice - 1979 and 1997) on devolution.
And that's about it, apart from a few local ones on an assortment of issues, usually whether a city should have a directly-elected mayor.
Truly important stuff that will actually matter a hundred years from now, in other words - not parochial issues that any idiot with a bee in his bonnet and the energy to go out and collect X number of signatures can get put on the ballot.
23 - Dave Nalle
Bob, I hate to tell you this, but on the immigration issue they still haven't cracked under the will of the vocal nativist bigots opposing reasonable immigration policy.
And on the gay rights issue the politicians understand that a vocal minority which is being persecuted and which votes may be a better ally than a bunch of bigots who only turn out to vote on referendums.
Dave
24 - Dr Dreadful
Remember immigration? They flooded the phones until they cracked under the will of the people.
On what planet, Bob?
25 - Sandy
The version of ex post facto in the article isn't entirely correct as it is not a catch-all.
For example with a law that outlaws a certain gun. A person that owns that gun would not be charged with originally buying it, as that would be ex post facto. However, the continued ownership of that gun would be against the new law and therefore that person must...uh..."divorce" their gun. ;) The exceptions are when "grandfather" clauses are specifically written into the law. California has done both of these versions of gun laws.
The wording of Prop 8 doesn't carry grandfather clauses, which suggests Starr may have a legal argument on that front. And perhaps that's why Brown's argument didn't try to expound on ex post facto.
Looking at marriage specifically, there is an example in the US, which goes to over a century ago. The mormons in the 19th century had some of their members in polygamy relationships. At the time they did this, it wasn't illegal. A series of laws were passed over time, one of which was to invalidate the previous marriages that had already been done. It went to the Supreme Court as mormons at the time said that it was protected by the Constitution. The Court disagreed.
The California Supreme Court case ought to be interesting.