May 26, 2009 is a day that will live in legal infamy. With the state tottering at the edge of a financial abyss a gutless California Supreme Court, cowering under fear of recall, committed suicide by upholding Prop. H8 and surrendering an independent judiciary to the invidious evil of majority tyranny. In doing so the Court didn’t just shoot itself in the foot but put its foot in its mouth before it pulled the trigger.
Make no mistake about it. The issue before the court was not marriage (that issue it already decided) but whether the voters can ‘amend’ the Constitution to deny one minority a judicially protected ‘fundamental’ right (in this case marriage) or whether such a Draconian rape of ‘equal protection’ and individual liberty is a constitutional ‘revision’ that can only be placed on the ballot with a two-thirds vote by the legislature. As Justice Robert H. Jackson opined in his stinging dissent in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943),
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." [Emphasis. added.]
While this is the law of the land under the U.S. Constitution the California Supreme Court has granted the mob certain rights that would never pass muster under federal law. Reminiscent of the lone dissent of Justice Harlan in the infamous case of Plessey v. Ferguson (‘separate but equal’) California Supreme Court Justice Carlos Moreno, in a strongly worded dissent, stated,“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.”[Emphasis added.]
As Prop H8ers gloat on their ‘victory’ they should take heed: you will be next. The battle of the bigots has now only just begun and the court has granted them unfettered power to trammel ‘fundamental’ civil rights under the hooves of a stampeding herd. The Supreme Court has just abdicated and surrendered the field of battle to mob tyranny. With the blessing of the Supreme Court the vicious mob bearing pitch forks may now come for you.As a practical matter the California Supreme Court has just committed suicide. In America an ‘independent judiciary’ is the only protection minorities have against majority tyranny, against violation or denial of their ‘fundamental’ civil rights. As a practical matter there is no longer any such thing as an ‘independent judiciary’ in California. From here on if the mob (statistically one of the most uneducated in America) does not like any Supreme Court decision that protects minority rights the tyrannous majority can eviscerate that ruling and enact it’s prejudice into law. The Supreme Court of California has just given religious bigots carte blanc to castrate the court and make a mockery of any notion of an independent judiciary which is now dead-in-the-water in California.
In a state that has the lowest literacy rate in the nation , a state where over 40% of California school kids live in a home where English is not spoken, where almost 1 in 4 adults in California have such poor literacy skills they cannot follow a simple newspaper article, a state that ranks 34th among all U.S. states in its students' potential for success , a state that ranks next to last in states where the adult population has at least a high school education, as state that ranks 49th out of 50 (!) in terms of spending on education (come on folks, were are talking about an educational dynamic of ignorance worse then Tennessee, Mississippi, or Kentucky!) the California Supreme Court has abdicated its responsibility to the mob by handing ‘liberal’ California over to a confederacy of dunces and Tobacco Road morons who march us backwards in lock step. I guess this is what Winston Churchill meant when he cynically quipped that "[t]he best argument against Democracy is a ten minute conversation with the average voter."Of course, what can we expect in a nation where a so-called ‘hard left Liberal’ and Harvard educated ‘civil rights lawyer’ eschews all rational legal reasoning by offering (not law - oh no, never once has this ‘civil rights lawyer’ proffered even one legal reason) but only religion as his sole rationale for promising to violate the First Amendment (separation of church and state) for the nefarious and invidious purpose of denying a ‘fundamental’ right guaranteed under the Fourteenth Amendment’s ‘due process’ and ‘equal protection’ clauses. While this is a promise of not one but two violations of the Constitution, America, a capitulating Weimar America enters a contract of mutual indifference as so-called ‘Liberals’ march backwards in lock-step on two left feet.
But threat to American bedrock is greater than the mere taking of judicially protected fundamental rights from a disfavored minority. It is no secret to anyone paying attention that the underlying purpose and intent of the Prop. H8 campaign was driven by one invidious faction: religion. And not just religion per se but one religious faction in particular. Unless one’s head is stuck where the sun doesn’t shine or is utterly disingenuous about the facts all must admit the real meaning and purpose for which Prop. H8 was enacted : so that one religious faction could usurp secular law for reasons of religion. By doing so the court and the mob have trashed what is first in the Bill of Rights, first in the First Amendment and first in our Constitution because it was first and foremost on the founding fathers minds: separation of church and state. This subterfuge designed to abrogate the First Amendment of the U.S. Constitution is a pig-sty beneath a dull facade and the spineless California Supreme Court has authenticated an invidious prejudice by going for the tainted bait hook-line-and sinker in order to dodge a recall by accommodating the ‘deeply held religious beliefs’ of one religious faction over all others. To paraphrase Justice Harlan,Both Prop H8 and the opinion of the Supreme Court of California are inconsistent with the personal liberty of citizens and hostile to both the spirit and letter of the constitution. With laws of like character being enacted in other states the effect will be in the highest degree mischievous. Bigotry, prejudice, and homophobia are institutions still tolerated by law in America and remain a power only by virtue of sinister legislation designed to interfere with the full enjoyment of the blessings of freedom, to regulate civil rights common to all citizens upon the basis of sex, and to place in a condition of legal inferiority a large body of citizens, now constituting a part of the political community also called the 'People of the State of California’. Rather than pay homage to invidious discrimination inconsistent with the guaranty given by the constitution, rather than abdicate its duty as an ‘independent judiciary’ such laws should be struck down by the courts in the discharge of their solemn duty. The judgment this day rendered will, in time, prove to be quite as pernicious as the decision made in the Dred Scott Case.”
The bedrock doctrine of an ‘independent judiciary’ (every minorities last refuge against bigotry and prejudice) instituted to protect minorities from majority tyranny is now dead in California. All ‘fundamental’ rights of all disfavored minorities now face a fanatical Jacobean guillotine. The Supreme Court of California has both abdicated it’s independence and committed suicide. It can not longer protect any minority from majority tyranny. It has castrated itself and is now, for all practical legal purposes, impotent. California no longer has an independent judiciary. The mob now has free reign to enact their prejudices into law and eviscerate any court decision protecting ‘fundamental’ rights against majority tyranny. It would be poetic justice to witness these prejudiced factions suffer the sting of their own venom spit from their own serpent’s teeth as prejudices against them are enacted into law. When that day comes they will not be heard to cry victim for their treachery will be their legacy. They just sent a written and engraved invitation to all bigots who wish to strip them of their own ‘fundamental’ rights.If liberals in California have any genuine concern for protection of minority rights then they should begin the judicial recall process immediately and let these justices die by the sword they cowered before in fear.
Ecrasez l'infame!John P. Mortimer, Esq.
Copyright © May 2009
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Comments
(rated, for the courage of your knowledgeable convictions)
It's bizarre that rights should be voted upon, state by state.
And rule by referendum will produce the kind of results you have in California ... not only this matter, but the whole thing about voting on taxes. Of COURSE people are going to want programs and services and of COURSE they're not going to want to pay for them. And, in the matter of gay marriage, it's mob rule - a mob riled up by religion. Given the principle of separation of church and state, this is particularly egregious.
Sad to say, the best system of government we've come up with so far is the election of representatives who will act in accordance with principles. Yeah, that doesn't work all that well, what with their probable lack of principles and desire to be re-elected. But a representative does dilute the mob rule thing by producing a record that covers a number of matters. S/he might still be defeated because of a stand on one given matter, but the chances are his or her overall record will be what people vote for. (Okay, that and their personality and how much money they can raise...)
But once elected, they seem to stand on their own, supporting their party's ideas (if any) or not, as they wish.
Which brings me around to my usual rant. As a Canadian, I simply do not grok the American system. Where every politician is a power unto his or herself. And, for chrissake, where sheriffs and judges are elected. In Canada, judges and (the equivalent of) sheriffs are appointed/hired on the basis of qualifications, not popularity contests.
And we have a parliamentary system. Which I think is what Churchill was referring to (rather than the vaguer term 'democracy') when he said it was a terrible system - but better than all the others.
Under the parliamentary system, we have 'real' parties. Individuals voted to parliament vote with their party - or they leave and sit as independents if they just can't swallow the party line. The party is run as a quasi dictatorship, alas, by the prime minister (who in practice has to turn over large swaths of power, particularly financial, to cabinet members). This is a terrible system - but things get done.
And in a practical or at least relatively efficient way. We've had any number of Catholic prime ministers, yet they didn't press religious issues (they may be dictators of their party, but they can be overthrown by same - so have to satisfy a broad range of opinion), and many of them were French-Canadian, yet they ended up in opposition to separatist claims because they had to keep the support of their Anglo party members. It was under a Catholic prime minister that gay marriage came into being. There were squawks, of course, from the religious people (okay, to be fair, not all of them), but those religious people were recognized as a special-interest group whose views could not override what was being officially acknowledged as a right of all people.
That and abortion were tossed around as possible issues when the current Conservative (pretty right-centre by American standards) party won power (modified by not getting a big enough majority) under an evangelical/fundie guy. Whatever his personal views and those of some of his party and supporters, he has paid no attention to those issues since gaining power. A - there's a lot else, of concern to EVERYbody, to address, and B - undoing those things would raise a lot of uproar and it's not worth the bother. (We have had gay marriage for a few years and, of course, it has made no difference at all to straight people and straight marriage, and it seems to have lost its ability to be a rallying point these days.)
And other thing about our parliamentary system (which I don't think applies to the British these days) is that we have a third party, and it's (eek) Socialist. They always have a presence in parliament, tho there has never been a possibility (thus far) of winning a majority. But they are very influential - and their presence and expression of (idealistic and unrealistic??) opinion acts to encourage the Liberals in liberal stances and damp down the reactionary tendencies of the Conservatives. Both Liberals and Conservatives have to make sure that they are inclusive enough to keep the socialists out of power...
Ain't a perfect system. In fact, a terrible system. But it works, however clumsily, whereas the American free-for-all looks from here like chaos. And in chaos, it's not necessarily the good and beneficial that emerges...
As I said over @ lemonpulp's place:
Justice Kathryn Werdegar's concurring opinion states:
"...all three branches of the government continue to have the duty...to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception. The measure puts one solution beyond reach by prohibiting the state from naming future same-sex unions as 'marriages,' but it does not otherwise affect the state's obligation to enforce the equal protection clause by protecting the 'fundamental right...of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other official recognized family relationships.' For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains. "
She's saying they had no choice. The law is in place and can't be overtaken because it is wrong. There is a process to handle this. It probably should be done State court, but there has been a suit filed in Federal court, Complaint for Declaratory, Injunctive, or Other Relief. It's on its way.
In the meantime, Justice Werdegar seems to be saying that all marriage should be outlawed, if the term and the process cannot be applied equally.
Which I think is hilarious. So, if a Domestic Union is the Same as a Marriage, as the pro Prop 8'ers have clained, if a Civil Commitment ceremony is the Same, then the heteros shouldn't mind if they, too, are not allowed to get married.
Ha!
Lots to consider. I hope that what you believe is right comes to fruition. Equal rights.
My hope is a little staggered, not so much by this decision as by the people voting against equal rights... but you did point out the education level of the voter.
I believe your hypothesis may be correct... Winston Churchill too.
How many people who voted for Prop 8 believed that their pastors would be forced to marry gay people if they didn't stop gay marriage right away? I'll be a hell of a lot of them. (I recall Elizabeth Hasselbeck going on about this on the View, seeing no significance the fact that this had happened in Sweden, not America). I'll also bet a lot of those people who spouted off about their freedom of religion, never understood that their freedom to worship in any way they liked would stay intact, always, regardless of how many gays were getting married down at the local gay-friendly church or temple.
And now the Cal Supremes have made all this stupidity permanent and very hard to make any sense of. Breaks my heart, especially in light how beautifully crafted the Marriage Cases decision was.
Let's start educating people about the facts next time around, and maybe we'll have a chance.
Rated
For instance, if a church refuses to conduct inter-racial marriage for couple of that faith they may do so but if that is not part of official (and long established) denomination wide religious dogma the church will (deservedly) loose its tax exempt status and may also have their civil license revoked because, you see, marriage is a secular institution and it is the State that authorizes the Church to perform civil, secular, marriage at the same time it conducts the religious rite. So you see, it's not the right to religious beliefs or practices they are worried about but the more mundane issue of MONEY and being free of paying their fare share of taxes. So you see it's not about religious beliefs at all but money, money, money.