Motley Moose – Archive

Since 2008 – Progress Through Politics

Day of Justice

(Proudly cross-posted at C4O Democrats)

Today is the day I’ve been waiting for quite some time. The California Supreme Court hears oral arguments on the lawsuits that will force the judges to decide whether it’s OK to treat millions of people, people like me, as “second-class citizens” simply because of who we love. Can this possibly be allowed? I hope not, and I renew my vow today to work my hardest to ensure it’s not allowed.

So what’s at stake today?

Here’s an idea.

OK, so that’s the human element… But what about the legality? It’s not as “cut and dry” simple as the pro-H8 forces want us to believe. Believe it or not, the judges must ultimately decide on their own relevance. Does the court’s interpretation of the constitution still matter?

What’s really at stake in the Prop 8 case – and what will probably be the real deciding factor in the California Supreme Court’s decision – is the power and prestige of the California Supreme Court itself.

Prop 8 aims to overturn the California Supreme Court’s 5-4 decision in The Marriage Cases (2008), where the Court held that “the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own — and, if the couple chooses, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society,” and that “in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

If this decision of the California Supreme Court, based on what it described as a “fundamental constitutional right,” can be overturned by a simple majority of voters in a ballot proposition, then the purportedly “fundamental” state constitution carries no more weight than a simple statute — and arguably even less weight, since a statute requires either the approval of a majority of the legislature and the signature of the governor or a two-thirds vote of the legislature.

And since appellate judges see themselves first and foremost as guardians of the constitution, if the constitution is diminished, then the judges are correspondingly diminished as well.

And this is what scares me the most about Prop H8 if it were left to stand! It could very well undo all of California’s pioneering ventures to advance civil rights simply because any electoral majority can vote away any “protected” minority group’s rights. It could very well reduce the value of our state’s constitution to nothing more than scrap paper worth trashing. It could very well undermine the importance and the independence of the judiciary system by refusing to let them do the job they’re supposed to do in interpreting the constitution!

This is what should scare all of us today, scare us all into action. Do we want the nation’s most populous state reduced to ridicule? Do we want to see people’s fundamental rights stripped because of certain churches’ religious doctrines? Do we really want a “tyranny of the (bare) majority” where a 52% election win can render the entire judiciary meaningless?

This is what keeps me going. I just can’t imagine this happening. And frankly, I don’t want to.

LGBT families deserve better. All people who’ve had to endure unjust discrimination deserve better. And ultimately, all Californians deserve better. Hell, all Americans deserve better!

But as I’ve said before, this matter doesn’t end once a decision is announced. If the court allows H8 to stand, we have no other choice but to go back to the ballot to win back our equal rights. But if the court does the right thing and overturns H8, we must be vigilant in defending them from the coming radical right attacks and ultimately stopping the radical right from playing any more political games with our lives.

After all, these people hurt by H8 deserve their day of justice.

Ultimately, we all need our day of justice. Let’s hope we see it coming today.


  1. rfahey22

    One major problem that this case won’t address is the fact that a bare majority can amend California’s state constitution in the first place.  Granted, apparently a proposition cannot “revise” the constitution but merely “amend” it (which seems like a pretty mushy distinction), but I do think that that diminishes the stature of the state constitution.  It also raises problematic issues with respect to the distribution of authority between judges and voters (essentially, voters have the legal right to alter the constitution but the court can step in afterwards and say that they’ve gone too far).  It seems like a very strange arrangement to me and I’m surprised that it has existed for so long.

    Anyway, here’s hoping that the law is repealed.  

  2. It will be important to the discussion after a decision is rendered. The anti-H8 group seems to have a plan in place if this fails in court. Do they also have a plan on what to do if they are successful? There will be quite a bit of outrage from supporters of prop-H8. There is going to be a media war over the decision. I hope someone is planning on how to win that war.

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