Tinderbox–Damned if you do, Damned if you don’t

Gay Marriage Colorado

Damned if you do, Damned if you don’t

The California Supreme Court in the crosshairs for Proposition 8

Now that the California Supreme Court has agreed to hear the case for overturning Proposition 8, the speculation begins.  What will they say?

In this case, it’s a damned if you do, damned if you don’t scenario.

Personally, I would love to see the Supreme Court overturn themselves on this one.  What better ending to nullify the actions of an activist court than to force them to cross themselves.  As it works out, the hearing looks like it’s going to begin in March of next year, five months from now, and exactly a year from the Court’s overturning of prop 22 that made same sex marriage legal in California.

Poetic justice, chickens coming home to roost, bread on the waters—Call it what you will, that victory would be sweet.

California though, has more than their high court’s pride to worry about.  If Proposition 8 is upheld as many expect it will be, in this tinderbox situation where already the will of the people has gone unheard, would the court’s reasoning have much more sway against the agitators?  With tensions on this issue running high, and the grass roots gay movement only now kicking into gear… the protests and marches we’ve seen brandishing “eye for an eye” justice to date could only be a taste of what’s to come.

The nation will be watching this one, and for some the intoxication of an instant media added into the mix of sure frustration is a recipe for instantaneous combustion.

If the Supreme Court Justices reach out and tip the scale the other way, somehow contorting law and throwing out precedent (not that they’re strangers to these tactics), the reaction would be swift and immediate.  The voices now silently observing would put out a hue and cry that would ring both ocean fronts.

The Court is basically in a political box here. They are answerable to the people for their jobs if they make law instead of interpreting it.  The separation of powers looms large.  If they did overturn the will of the people, twice clearly expressed, they’d have to go so far out on a limb to do it that public opinion would break cleanly on our side and the people of this nation would stand up to be counted by droves, with hell to pay for any politician who stood in the way.

Regardless of how you feel about marriage, the sanctity of the people’s voice is paramount in every democracy.

The court must tread lightly when stepping across the people.  Already the whispers are running quietly through the state as all eyes turn to the Courts and wait for justice to come one way or another.  For now we’re keeping the powder dry.

–Beetle Blogger



  1. Tom Dibble said,

    November 20, 2008 at 4:17 pm

    Never mind the public “culture war” which has already been triggered. There will be agitation and likely violence no matter which way the court votes. There are far more important things at stake here.

    If the court allows Prop 8, then they are opening the floodgates for any constitutional amendment to pass with a 50%+1 initiative vote.

    This is a HIGHLY dangerous precedent. It will end in either the removal or wholesale adjustment of the initiative process (which itself will be difficult to do), or the collapse of California as a functioning (barely) government.

    We are a Constitutional Representative Democracy. We are not a pure Democracy. There is a reason for that, which is taught to every 10th grader in the state in their Civics course.

    All this talk of “activist judges” misses the point of what a judge (especially a Supreme Court judge) is supposed to do, first and foremost: ensure that the state is running in compliance with it’s Constitution. If you don’t like the Constitution, then change it (the PROPER procedure for a radical change to the Constitution is a 2/3rds vote in the Legislature followed by the 50%+1 vote of the people; it’s hard for a reason!) Don’t blame the referee for following the rules!

  2. beetlebabee said,

    November 20, 2008 at 5:02 pm

    To say this referee is following the rules I think is a stretch. While we do delegate our lawmaking powers, our judicial powers and our executive powers to the state, we retain control over our preeminent voice. If the government were to ever forget the group who first delegated that power, they would have to be reminded that they are still answerable to the people. It is the people’s job to police the government or the power of democracy itself would be lost.

    Absolute power was never intended to be given to the government, in any branch.

    We may quibble about whether the amendment was large or small, or whether the voice of the people should decide by this margin or that margin, but this is the way it is currently, and the voice of the people as twice expressed, needs to be respected.

  3. Will said,

    November 20, 2008 at 6:34 pm

    If the judges overturn prop 8, I will come on my own penny and bring along everyone I can persuade, and I will protest long and hard.

  4. Tom Dibble said,

    November 20, 2008 at 7:22 pm

    “the voice of the people as twice expressed, needs to be respected.” But that’s precisely it: in a Constitutional Representative Democracy, the “voice of the people” needs ONLY be respected IF it is in line with the Constitution!

    If you disagree with the judges in the state, by all means organize an effort to remove them. It’s worked before, and it’s baked into the system for a reason.

    However, a bad judge is not defined as one who interprets the Constitution correctly but in disagreement with 52% of the people of the state.

    Without “activist” judges of the 20th century, we would still be living in a segregated society and my girls would be looking forward to a life subservient to their husband and earning 25% of the wage a man would earn doing the same thing. While some far-right blowhards would love for us to return to the paleolithic in terms of civil rights, I am glad I live in this time of opportunity and hope that my daughters and son will live in an even more enlightened time.

  5. Heather said,

    November 20, 2008 at 7:25 pm

    Why is the opposition NOW saying that this should have gone to the legislature and then the people? Where were these filings BEFORE the vote was put to the people? Could it be because the opposition really thought they were going to win and are now whining because they didn’t win? Hmmmm…

  6. beetlebabee said,

    November 20, 2008 at 7:39 pm

    Tom, you can’t hide behind the civil rights era for every activist stand a judge takes. Each case should be judged on it’s merits, separate from any last century popular history.

    If judges are removed, it will be because the majority of Californians believe that judge is not holding up the Constitution. It is too steep of a fight to undertake on a whim. It would take a massive effort were it ever to get to that point, but the fact remains, it is our power, and having the voice of the people twice overturned would, I wager, bring ample energy to the table to get the job done.

  7. prop8discussion said,

    November 20, 2008 at 8:04 pm

    Didn’t they file the constitutional revision before the election? and it was denied?

  8. Scott M. said,

    November 20, 2008 at 8:11 pm

    Yo, Bibble – Propositon 8 amended the Constitution!

  9. Shoes said,

    November 20, 2008 at 9:36 pm

    The Supreme court declared Legislative Civil Rights Act of 1875 unconstitutional, extending segregation for nearly 100 years.

    It’s rather ironic to hold them up as the dazzling institution that ended segregation after they were the ones responsible for keeping it alive for so long!

  10. beetlebabee said,

    November 20, 2008 at 9:42 pm

    Somebody ban that man, he’s getting too much truth in the conversation. Where’d you find a good fact like that Shoes?

    I’m impressed.

  11. standingfortruth2008 said,

    November 21, 2008 at 12:46 am

    Plessy v Fergusun (1896) http://en.wikipedia.org/wiki/Plessy_v._Ferguson

    How about that Supreme Court? I agree with Shoes.

    Tom Dibble – why did Jerry Brown agree that it was an amendment not a revision and now has to defend it?

    Study harder, my friend, and come back with more facts.

  12. Shoes said,

    November 21, 2008 at 2:02 pm

    I agree in part with TomDibble. The Supreme Court is not an elected branch because their duty is solely to uphold the law and the Constitution. Period.

    The Supreme Court was not established to legislate, nor to let public opinion sway its decisions. With no accountability to the electorate, to do otherwise tips the controls in our nation’s balance of power. A revisionist Court strips away power from the people by mandating that which could not be accomplished democratically. It assumes an elitist mentality, one that supersedes the will of the majority of the people who have followed the democratic process–the very people whom they supposedly serve.

    The crux of the problem is found in this phrase in the Declaration of Independence, “We the People…” From the beginning, government derived its power from the people, not the other way around.

  13. teeny said,

    November 21, 2008 at 3:15 pm

    Ah, well, you know…a supreme court is just a regular court with tomatoes and sour cream.

    All joking aside, does anyone know what the status is on LDS missionaries currently serving in the hot-spots of California? I know it’s not uncommon for them to get pulled out to temporarily serve somewhere else when it gets that dangerous. I would be buying a top notch alarm system for my house if I lived in ‘Frisco right now.

  14. Tom Dibble said,

    November 21, 2008 at 4:54 pm

    “Why is the opposition NOW saying that this should have gone to the legislature and then the people?”

    (1) I believe this was brought up before the election, but was not heard by the court (rightly) because (2) the Court is meant to rule on actual conditions, not hypotheticals. Until the bill was passed, the CA SC could not hear arguments about it. At least, that’s my understanding.

    “Tom Dibble – why did Jerry Brown agree that it was an amendment not a revision and now has to defend it?”

    Because Jerry Brown is the sworn Attorney General, and has to defend the state’s position on every legal issue. That’s his job. As an attorney you don’t always get to pick what case you defend.

    “Plessy v Fergusun (1896)” (etc)

    Absolutely. The US SC (and CA SC) have a long and sordid history of bad decisions mixed in with the good ones. For instance, they supported “separate but equal” several times before striking it down, and upheld antimiscegeny laws many times before striking those out as well. HOWEVER, they have a far better record than the voting public on issues of constitutionality.

    People. Do you have a proposal for a functioning democracy which does not involve the Judicial branch? The Judicial Branch’s SOLE power in the checks-and-balances triangle is judicial review. Take away that power, and the entire triangle falls apart. See http://www.usconstitution.net/consttop_cnb.html for a summary of the checks each branch has on the others (the “people” in the form of the initiative process are acting as a stand-in for the legislative branch).

    Yes, the courts at all levels have made bad decisions in the past. And, yes, they might make a bad decision on this case. However, their record is FAR more in line with the letter and spirit of the Constitution than popular vote. They have the responsibility of judicial review of all laws for a reason.

    Again: throw out the “activist judges” and make the SC nothing more than a mouthpiece for the whims of the scant majority. What, then, will you do to keep YOUR minority rights (YOU, yes, YOU are a minority, guaranteed) in the face of the majority who feels you don’t need them? Stock up on guns?

    Maybe there’s a good alternative to our form of government which heavily involves direct legislation by the majority with no regards to a constitution and no judicial branch ensuring constitutionality, and yet somehow magically manages to keep everyone’s unwritten rights from being violated … but THAT IS NOT OUR GOVERNMENT.

  15. Karl said,

    November 21, 2008 at 6:26 pm

    Interesting discussion about majorities, 4 out of 7 Judges made a radical decision back in May. Four lawyers were given the power to rule against ancient tradition, state law, federal law, religious law and natural law. It seems a lot more dangerous to give 4 people this kind of power than 6.3 Million Citizens. The court should at best be required to rule unanimously to make this kind of decision.

  16. Shoes said,

    November 21, 2008 at 10:46 pm

    SEC. 3. The electors may amend the Constitution by initiative.

    It is interesting that constitution commission members allowed this clause to be included in the state constitution, considering the “highly dangerous precedent” you stated.

    (And “precedent”…in this past election alone, Props 9 and 11–both of which passed–were constitutional amendments.)

    “If the court allows Prop 8, then they are opening the floodgates for any constitutional amendment to pass with a 50%+1 initiative vote.”

    Yes, that is the constitutional process regarding the initiative amendments that are not a “substantial alteration of the entire constitution, rather than…a less extensive change in one or more of its provisions”. (Amador Valley Joint Union High School District v. State Board of Equalization, 22 Cal.3d 208), 1978 ruling.

  17. C Smith said,

    November 23, 2008 at 8:47 pm

    ” Four lawyers were given the power to rule against ancient tradition, state law, federal law, religious law and natural law. It seems a lot more dangerous to give 4 people this kind of power than 6.3 Million Citizens.”

    Karl –

    1) Religious law does not rule in this country as we have many, many different religions in the United States as well as atheists who don’t believe in God at all – we are not a theocracy.

    2) I’m not sure what you mean by “natural law” – if you mean the law of procreation I can understand that as you do need a male and female to procreate. But that has nothing to do with getting married. Lots of people procreate without getting married and couples who are sterile and old people are allowed to get married.

    3) Homosexuality is not illegal in this state. In fact, homosexuals are protected as a minority when it comes to housing and hiring practices. Until Prop 8 showed up, there was nothing in the constitution or a law banning same sex marriage. There is also no federal law banning same sex marriage. Bush tried in 2004 and it was defeated in congress.


  18. amy said,

    November 24, 2008 at 12:33 am

    Just throwing out something I’ve been wondering about, but what are the possibilities of CA dividing over this issue? Does anyone think something like that could happen? Actually forming two states out of one? It’s happened before…Just wondering what people think…

  19. leftcoastvoter said,

    November 26, 2008 at 1:27 am

    Tom – you seem to pick your side and change as the discussion goes to meet your side of the argument. Or, you are just playing devil’s advocate.

    First you seem to say that 51% is dangerous, and that judges are not “activist” but rather “divine” as they are more enlightened than “the people”.

    Then you agree that they are not infallible (Plessy), and now it seems that you resemble my college roommate who would pontificate endlessly about what “should be” and never reach a conclusion.

    Where do you stand? We want to know?

    Are you Pro-Gay marriage? Are you Pro-Traditional Marriage?

    It appears that you vacillate and we (or at least I) want to know.

    Thank you!

  20. Shoes said,

    November 26, 2008 at 9:53 am

    My previous post was so long that it probably put everyone to sleep, but “We the People” is the beginning of the Constitution. Before I put everyone back to sleep again, I want to reiterate (correctly this time) that the power of the government (the constitution!) comes from the people, not the other way around.

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