"Charity is commendable, everyone should be charitable. But Justice aims to create a social order in which, if individuals choose not to be charitable, people still don't go hungry, unschooled or sick without care. Charity depends on the vicissitudes of whim and personal wealth, justice depends on commitment instead of circumstance.
Faith-based charity provides crumbs from the table; faith-based justice offers a place at the table"
~Bill Moyers

Sunday, May 31, 2009

California's Prop H8: The State Supreme Court Punts.

Upon hearing the decision of the Supreme Court of California on Prop H8, the first comment I made to my friend Juanita was made 'off-the-cuff', she asked me what I thought and I said "The Supreme Court is buying time", the reason I felt that was the case is very simple, in the previous rulings they have pleased the Pro Prop H8 proponents and angered the LGBT Community when they ruled that licenses for same-sex marriage were invalid under State Law because it barred such unions (California Proposition 22 (2000)), next, in another decision, they pleased the LGBT Community and angered the Prop H8 Proponents when they ruled that Prop 8 was an unconstitutional abridgment of civil rights, oookey... So, in their latest ruling, which they announced on Tuesday May 26, 2009, they declared the Prop H8 constitutional amendment is valid, albeit it takes away rights protected under the 'equal treatment under the law constitutional clause' (Part of the Fourteenth Amendment to the United States Constitution), furthermore, they ruled that the 18,000 or so same-sex marriages performed in between their second and third ruling, were valid, because of their second ruling which was apparently reversed on their third.

He, he, he... I don't mean to laugh at this very serious issue, but, in addition to being a little confusing to follow their steps and logic, it brings to my mind overtones of the 'Keystone Cops' on a State Supreme Court Scenario, bumbling and fumbling.

But just taking a sample of the opinion pieces out there, here is Dan Walter's on the San Jose Mercury News on May 27th:
Opinion: California Supreme Court followed the law on Prop. 8

"marriage licenses that San Francisco was issuing to same-sex couples at the behest of Mayor Gavin Newsom were invalid because state law prohibited such marriages.

A year ago, the same court pleased gay rights groups and angered conservative "pro-family" groups when it declared that the statute barring same-sex marriages, although enacted by voters, was an unconstitutional abridgment of civil rights.

The court seemingly reversed itself again Tuesday, declaring that Proposition 8, a constitutional amendment again outlawing same-sex marriages, is valid. But all three decisions were correct, even courageous, because they upheld the limited role that courts play in public policy.

As the court itself said, "In a sense, this trilogy of cases illustrates the variety of limitations that our constitutional system imposes upon each branch of government — the executive, the legislative and the judicial."

In petitioning the court to set aside Proposition 8, gay marriage advocates wanted the court to rule that it was a constitutional revision, rather than an amendment, and thus could not be enacted via initiative. But had it done so, it would have made a mockery of the initiative system — which, for all its flaws, remains a valuable tool for effecting public policy — and created a legal quagmire with unimaginable unintended consequences."
It is not a simple issue no matter which way you look at it, but two points are blatantly clear, 1. Protection of Civil Rights on equal treatment under the Law and, 2. Public Policy or, putting it another way, pure, unbridled democracy, the worst kind of government but the best thing we got going for us, on the one hand, the governed have, supposedly, participatory prerogatives on a democracy, on the other, notwithstanding that nobody is either better or worse than the other, we humans have differences on how we look, what we think or our nature, but... And this is a big but, regardless of our differences, all of us are supposed to have the same inalienable rights, hence, "Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities.". but, there seems to always be a but, isn't?, what about democracy? Well, this beautiful monster called democracy, in it's extreme, purest form, is what is known as 'anarquism', another extreme manifestation of unbridled democracy is that "Fifty-one percent of a nation can establish a totalitarian regime, suppress minorities and still remain democratic."

Is it just? According to Erik von Kuehnelt-Leddihn, "The voice of the majority is no proof of justice", Maximilien Robespierre said that "Any law which violates the indefeasible rights of man is essentially unjust and tyrannical; it is not a law at all." and the great humanitarian, Mahatma Karumanchi Gandhi, left us one of his tenets "In matters of conscience, the law of majority has no place.", the answer to me appears to be a resounding no!

Going back to my comment that the California Supreme Court was 'buying time' or, as stated in this post's title, they 'punted', I must say that the point is valid because a) in their first ruling they validated the voice of the majority and, b) on their second ruling they upheld the inalienable rights of the individual and, c) in their latest ruling they upheld unbridled democracy as the supreme policy-maker of the land, making a little aside to say that because in their second ruling, they temporarily made legal the marriage between persons of the same sex, the legal marriage contracts made during that period, remained legal (Something to do with legal retroactivity versus current legal status, I think)

Yes, the State Supreme Court punted, they decided to go the political route, they left it to the electorate to decide public policy instead of settling once and for all the issue of whether or not a majority has the prerogative to take away constitutional rights from a minority, or until the US Supreme Court rules on the issue, which will happen, since already legal suits challenging the Cal Supremes' ruling have been filed.

I do totally agree with Dan Walter's point that the California Supreme Court have "created a legal quagmire with unimaginable unintended consequences", fortunes and majorities change, public opinion attitudes change as well, today's majority may in the near, or far future, whichever may be the case, change too; so, let the 'political pin ball game' commence, the 'pro-this' or 'pro-that' will win a scrimmage or a battle here and there, only to be reversed later by the 'con-this' or 'con-that' majority, only to be set back later by the 'pro or con on this or that', yes indeed, by all means, let the 'political pin ball game' commence instead of answering two simple, yet vital, questions: "Does the individual has inalienable rights?" and "Does a majority has the right to abridge them?"

I do also agree with Dan on another point he makes because there is no question on my mind that same-sex marriage contracts will be legal in California and other states sooner than later, but I disagree that it is the appropriate course of action, as he and others are saying:
The appropriate course for same-sex marriage advocates to take is to pursue their cause in the same political arena in which their opponents prevailed in November. Polls indicate that Californians are split roughly 50-50 on the issue of gay marriage, but support is growing over time, and a pro-gay marriage measure has a fair chance of succeeding next year.
In closing, I do most fervently disagree with the opinion of many and that Dan also exposes in his piece, while leaving for another post the role of "Organized Religion", more aptly called "The Religious Right" And the innumerable and outrageous ironies and the accompanying plethora of hypocrisies in this matter:
A victory at the polls would have much more moral validity than the Supreme Court's ignoring legal precedent and blithely overturning Proposition 8.
I'll state why I disagree, moral validity is acquired when what is just is followed, what Dan and others are saying is that they expect that their views will be validated by political Trends/Will - What legal precedent? It seems to me this claim was done in a vacuum due to his not specifying to which precedent he is referring to.

I heard somewhere that the California State Supreme Court's ruling on Prop H8 was courageous, excuse me?

They punted, the stage is set thus bringing up a final question: Which minority will be next?

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