Posts Tagged ‘gay marriage’

Unappealing Court Logick

Tuesday, 7 December 2010
Court weighs constitutionality of gay marriage ban by Paul Elias & Lisa Leff of the AP

The panel […] seemed worried about allowing the governor and attorney general to effectively kill Proposition 8 by refusing to defend it.

Note that the question here is not whether state officials are required to defend the law in the original hearing, but whether officials are permitted to accept the ruling of the lower court when that ruling rejects a measure. If officials are not permitted to accept such a ruling by a lower court as to the constitutionality of a measure, then one has to ask why these matters shouldn't as a rule go first to the Supreme Court.

Given the present court system, requiring state officials to exhaust their appeals in defense of a measure would creäte an asymmetry in favor of whatever measure had passed; laws would always have to be accepted as in accord with the constitution unless challengers had the resources to fight all the way to the Supreme Court. Beyond that, the residual function of the lower courts would be to allow appeals courts and the Supreme Court to moderate their work-loads by refusing to hear an appeal.

The question of whether supporters of Proposition 8 have standing to appeal the lower court ruling should turn not upon whether this were the only way to ensure that a law is fully defended, nor upon whether it is the only way that what may plausibly be their rights should be defended, but upon whether indeed it is at all plausible that their rights are at stake, regardless of whether state officials are doing anything to protect those rights. If a party were not given standing to defend its rights, on the grounds that state officials were providing such a defense, then state officials could erode those rights by providing a weak defense.

Tyranny of the Plurality

Tuesday, 26 May 2009

There isn't a whole lot to be said about this decision.

The ruling declared that

It is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it.

But, in fact, the process specified by the state constitution does not allow any-and-all amendments that can find support amongst a plurality of voters. The court chose to put democracy ahead both of the constitution and of personal freedom.

Another Grim Outcome

Wednesday, 5 November 2008

I was up for about 23 hours, went to bed, and slept, uh, for about three hours.

I decided to get on-line and see if there'd been a further reversal-of-fortune for Proposition 8, the California measure to outlaw same-sex marriage. Although in the past the electorate had voted to ban same-sex marriage, conventional wisdom, going into this election, was that the Proposition would fail by a clear margin. I believed this convention wisdom, and saw it as the one real bright spot of the election.

But as the numbers started to come-in, it began to seem that the Proposition would pass by about the margin by which it had been expected to fail.

Now, with 22587 of 25429 precincts reporting, the measure leads 4,843,531 to 4,519,010 — about 52% to 48%. There has been a little drift in the percentages since I had last checked, but nothing that suggests that there will be some marked difference in the relative shares reported amongst the later-reporting precincts. Basically, the remaining precincts would have to have voted about 64% against the Proposition for it to fail.

I had been planning to remove the Vote No bumpersticker from my note-book computer if the measure failed. I'm inclined to leave on for a while now, as a gesture of protest. But I'm concerned that it may just depress some of the people around me, so I'm going to conduct an informal poll amongst them.

I guess that, one way or another, the sticker has a short shelf-life. A little more than eight years ago, a Proposition 22, perhaps better known as the Knight Initiative and as the defense of marriage act, set out to achieve much the same ends as this latest Proposition 8. Now-a-days, No-on-Knight is quite meaningless to the vast majority of people, and No on 22 would be mysterious to an even larger group.

Hard Sell

Thursday, 25 September 2008

In the wake of a ruling by the Supreme Court of the State of California that required the state to recognize and effect same-sex marriage, there is a measure, Proposition 8, on the ballot to amend the state constitution to halt recognition of further same-sex marriages. I oppose this measure, though (as I have stated various places) what I really want is for the state to get out of the marriage business altogether, and to treat marriages simply as private contracts. (I think that participants should see marriage as far more, but that's not the business of the state.)

This after-noon, I stopped at the San Diego headquarters of Vote No on Prop 8 to buy a couple of bumper-stickers, one to actually slap on a bumper, and one to put on the case of my note-book computer.

The guy who greeted me there was a fool. Instead of just selling me a couple of bumper-stickers, he tried very aggressively to get me to make a substantial donation, starting with the idea that I should give them the equivalent of a dollar an day for a year, by donatiing $365. There isn't a fr__king year left until the election; there's about 40 days. Had he begun by suggesting a $40 donation, well, I might have gone along with that; as it was, he had my back up, and I said no to the other sums that he suggested. I gave them $5 and they gave me the two bumper-stickers that I'd sought. In addition to the bumper-stickers, I left with considerable annoyance.

Another irksome thing, not the fault of Vote No on Prop 8, was that I had to fill-out a d_mn'd form, because I'd made a political contribution, however small. It was a gross violation of my rights as acknowledged by the First and Fourteenth Amendments, but if I didn't fill-out that form, and truthfully, then the money could be confiscated by the state.

Marriage License Form 4473

Monday, 14 April 2008

As I was showering to-night, I was thinking about hypotheses concerning sexual and gender orientation and environment, and wondering how they might be tested. Then it occurred to me that some of them would become far more testable if same-sex marriage were legalized, as it would effectively register a significant share of homosexuals and bisexuals as such.

At that point, a normative concern awoke: With the push to place homosexuality on equal footing, databases are being creäted that could later be used to facilitate persecution of homosexuality and of bisexuality.

I have in the past asserted that the state ought to treat marriage as simply a contract. It's not that I think that marriage itself ought to be an ordinary contract, but that I don't think that its extraordinary aspects are the business of the state. I don't think that the state should be effecting marriage, nor promoting or shaping it beyond simply assuring that any contractual obligations creäted by marriage are met.

My basic reason for this position has been and remains that the state shouldn't be engaged in active social engineering, whether it be the sort dear to the political left or that championed by Focus on the Family. But I now see that there is some danger — albeït perhaps fairly small — that records creäted by this one sort of social engineering programme might be used for a far more dire programme later.