Nothing to see here but more Prop 8 hand-wringing

[muckefuck]

I'm a lot more bummed by the success of Proposition 8 than I expected to me. Even though I knew that the last ballot measure passed easily, that polls showed a clear win, that any time we allow a popular vote on queer rights we get shafted--even with all these things in mind, I still blithely expected it to fail.

Now that the expensive legislative battle is over, another expensive legal battle begins. It pains me to think of all those tens of millions down the drain simply because a scant majority of Californians can't accept that they live in a secular democracy, that civil marriage is not a sacrament and follows different rules. That's what makes this first and foremost a defeat for liberal humanism, and only secondarily for gay rights.

I'm trying to set my lights by cpratt, who's been very upbeat in his comments today despite being one of the thousands of individuals who's just seen his marriage go *poof*. (But, then, I guess it's a little easier the second time around; think you'll get your license fee refunded this time?) We've known for years now that getting same-sex marriage is mostly a waiting game, as resistance drops with every generation. Once today's over-65s are dead and gone, the yeas will have it--but that's awfully cold comfort to anyone who would like some additional legal protections in the meantime.

There are other illiberal measures that stick in my crawl from this election--particularly Missouri's Official English law and Arkansas' hateful and unjustified barring of gay couples from adoption and foster care--but I had already resigned myself to those. For some reason, I keep having higher expectations for California, despite all evidence to the contrary.

Comments

[pklexton.livejournal.com]

Actually, one of the functions of a constitution is to protect the civil rights of minorities from majority oppression. Indeed that is the whole idea behind the bill of rights. Remember your high school American history? The idea that your civil rights can be modified by a 50.1% majority should scare people.

Actually, marriage has been found to be a fundamental right by the US Supreme Court. Just not for some of us.

[lhn.livejournal.com]

The Bill of Rights was, however, a set of actual constitutional amendments passed by the states, not brought into existence by judicial interpretation. Ditto the 13th, 14th, and 15th Amendments. Constitutional protections still have to be enacted by established democratic processes, or they risk being undone by them. The modern fashion for depending on judges instead of going through the hard work of getting an amendment passed only works as long as the other side can't get an amendment going the other way.

(And as long as you've got the judges you want-- if not, then your "judicial protections" may look more like Plessy v. Ferguson or Bowers v. Hardwick. Government by relatively unaccountable judges is a double-edged sword.)

That said, I'm not sure what the point is of California's having a constitution that can be amended by a 51% popular vote. But blame that on the old Progressive movement and their "Initiative, Referendum, and Recall" battle cry and the institutionalization of government by popular whim.

[pklexton.livejournal.com]

I agree with the statement about the unreliability of judicial protections by judge-made law. Sure, it can abused, and the system loses legitimacy. Judge-made law, regarding consitutional rights or otherwise, however, has been part of our system since almost the beginning. Conservatives sometimes forget that it doesn't all go one way. Bush v. Gore.

[lhn.livejournal.com]

Or Marbury v. Madison. Or the entire English common law tradition. But there are limits-- not least those imposed by the separation of powers that allows other lawmaking institutions to reverse those decisions where they're deemed to have gone further than their interpretive powers properly allowed. (Traditionally the legislature, but CA's crazy system is, by now, hallowed by nearly a century of history.)