Proposition 8 Ruling is a Catch 88

See what I did there? It's like a Catch 22, only 4 times as bad. Worse, really, but 88 went well with the rest of the headline.

In rendering its decision to uphold Proposition 8, the California Supreme Court ignored not only their own precedent but their reason for existing. Upon advice of counsel, I decided to bite the bullet and try to wade through the 136-page Prop 8 decision to find out where the whole thing went wrong. After doing so, I can only conclude than that the court wrote their decision to fit a pre-ordained outcome.

That outcome was best described by Below the Beltway's Doug Mataconis (and others, I'm sure) as "splitting the baby," a reference to the story of Solomon as directed by Quentin Tarantino.

In order to arrive at this decision, the court faced a number of obstacles, but I have isolated the moment at which they went from torturing logic to putting it out of its misery.

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As Ed Rawls noted, the court rests its entire decision on the distinction between a constitutional amendment and a revision. This is sleight of hand, however, as pointed out in the dissenting opinion. The real issue is whether Proposition 8 violates the inalienable rights of liberty and due process. If it does, then Proposition 8 is necessarily a revision, not an amendment. Furthermore, the distinction is rendered moot, because it is unconstitutional on its face.

To illustrate, you couldn't amend, revise, or Martinize a constitution to legalize the murder of a certain class of people.

The court had already ruled, in the Marriage Cases, that marriage inequality makes same-sex couples a suspect class, that it violates the privacy, liberty, and due process clauses of Article 1, Section 7 of the California Constitution. The court even cites, extensively, the decision in the Marriage Cases.

Furthermore, in the Marriage Cases, the court made a clear distinction between the right to marry, and the right to be afforded the rights and privileges of marriage without calling it marriage, which already existed. In other words, the point of the Marriage Cases was the right to marry, not the right to separate but equal marriage. That means that the Prop 8 court had to escape its own precedent in order to uphold Prop 8.

In order to do so, the court relied on this bit of Orwellian logic: (page 34-35)

Because in common speech the term "right to marry" is most often used and understood to refer to an individual's right to enter into the official relationship designated "marriage," and in order to minimize potential confusion in the future, instead of referring to this aspect of the state constitutional rights of privacy and due process as "the constitutional right to marry," hereafter in this opinion we shall refer to this constitutional right by the more general descriptive terminology used in the majority opinion in the Marriage Cases - namely, the constitutional right to establish, with the person of one's choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage.

In other words, just because you have the right to marry doesn't mean you get to call the product of that marrying a marriage. It would be like a defense attorney saying, "Just because my client murdered the victim doesn't mean you get to call it a murder. We prefer soul/body disunion."

There are a host of other problems with this decision, but this is the poisonous tree.

As Rawls points out, Judge Moreno's dissenting opinion clearly explains how the majority has given undue deference to the amendment as "the will of the people":

The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent. ...

The equal protection clause is therefore, by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect. Rather, the enforcement of the equal protection clause is especially dependent on "the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority."

Finally, the court's contention that Prop 8 doesn't violate Article 1, Section 7, but rather "carves out a narrow exception," is a terrifying prospect. Will the court approve future amendments to re-dub children of same-sex unions "fagbabies," or to narrowly exempt individuals in same-sex unions from the designation "human?"

The California Supreme Court has twisted itself into disgraceful knots in order to avoid doing its job. Perhaps in a thin-skinned attempt to avoid the label of "activist," they have created a new one, the "inactivist court."

Tommy on: Daily Dose:

• Prop 8: California Gays are Now 2nd and 3rd Class Citizens
• Sonia Sotomayor: Inspiring Wannabe Latina Law Students Everywhere
• I Picked the Wrong Day to Miss Iron Chef America

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