When the California Supreme Court agreed last week to decide the legality of Proposition 8 — which a slim majority of Californians passed Nov. 4, taking from same-sex couples the marriage rights that the court had established in May — the debate shifted to a concept far older than that of gay rights.
Essentially, it will decide whether this is a case of the "tyranny of the majority," a phrase Alexis de Tocqueville coined in his classic 1835 book Democracy in America, drawing on a concept from the ancient Greeks that was the philosophical underpinning of the US Bill of Rights and the central paradigm of constitutional democracy.
The founding principle is that basic rights — such as the freedoms of speech, religion, and association — are not subject to majority approval and can't be taken away by a simple popular vote. So the question now before the judges is whether the right to marry, which the court ruled had been unconstitutionally withheld from same-sex couples, is among those core rights.
"The whole notion of equal protection is to protect minority interests from the periodic discriminatory impulse of the majority," Robert Rubin, legal director for the Bay Area chapter of the Lawyers Committee for Civil Rights, told the Guardian.
"And [upholding Prop. 8] would turn that on its head."
'CONSTITUTIONAL CRISIS'
Even before the votes were counted election night, the San Francisco City Attorney's Office and its counterparts in Santa Clara County and the city of Los Angeles were developing their challenge to the legality of Prop. 8, which they filed Nov. 5.
Both Prop. 8 proponents and the California Attorney General's Office agreed that the high court should immediately take the case rather than let it rattle around the lower courts for months or years. "Review by this Court is necessary to ensure uniformity of decision, finality and certainty for the citizens of California," Attorney General Jerry Brown wrote to the court.
Brown had previously ruled that the roughly 18,000 marriages performed since May were legal and that Prop. 8 is not retroactive, something proponents of the measure dispute and which the Supreme Court also has agreed to decide in this case. But two of the three "issues to be briefed and argued," as the high court ruled Nov. 19, were more fundamental: "1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (see Cal. Const., art. XVIII, 1-4) 2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?"
Narrowly framed, the first question asks whether the process of banning same-sex marriage in the constitution should have gone through the more cumbersome revision process, which involves winning a two-thirds vote in the California Legislature before submitting the measure to voters. And the second concerns whether the legislative branch of government (in this case, through a direct vote of the people) can legally override this decision by the judicial branch.
But more broadly framed, both questions go to the same basic issue: can a simple majority of voters take away rights from a protected minority group, one the judicial ...
We’ve all read more explanations of the passage of the hateful Prop 8 than we can count.
And every one of those explanations skips over and ignores the most blatant and most disturbing explanation.
In our loss on Prop 8, the enemy was not just the rampant homophobia amongst ethnic minorities; the enemy was not just the utter ineptitude of the No on 8 campaign. Although those are both very real concerns, they are not the enemy that defeated us on Prop 8.
The enemy is religion!
Religion is the tool that conservatives used to strip our community of a fundamental civil right. They relied on the blind, unquestioning herd-think (e.g. “faith”) that is essential to every religion as the tool to make just enough people fear and hate us and vote against us. It is Karl Rovian faith-based politics at its most cynical and its most evil, and it worked.
We all know that Prop 8 was enacted by a vote of 52% to 48%.
Those voters identifying themselves as Evangelicals supported Prop 8 by a margin of 81% to 19%; non-Evangelical Christians who said they attend church services supported Prop 8 by 84% to 16%.
No surprise that non-Christians opposed Prop 8 by a margin 85% to 15% and those who never attend church opposed Prop 8 by 83% to 17%.
Quoting Geoffrey R. Stone (Huffington Post, 15 Nov 08; for statistics above also), “What this tells us, quite strikingly, is that Proposition 8 was a highly successful effort of a particular religious group to conscript the power of the state to impose their religious beliefs on their fellow citizens, whether or not those citizens share those beliefs. This is a serious threat to a free society committed to the principle of separation of church and state.” (italics the letter writer‘s)
More to the point,…
Our community was just stripped of a constitutional, Supreme Court-affirmed right by the vote of people who share an imaginary space-god friend who, they believe, commanded them 2000 years ago to hate us queers. (If only stoning-to-the-death weren’t so politically incorrect in this hemisphere….) Four-fifths of the money supporting the Yes on 8 campaign came from Catholics and Mormons -- you know -- those charming, enlightened people who actually believe in and celebrate the cannibalistic wet-dream of a nibble of cracker and a sip of grape juice on a Sunday morning transforming literally into the eat-me-drink-me body and blood of a long-dead man (Catholics) and those equally enlightened folk who believe that wearing magic underwear will protect them from impure thoughts and knife wounds (Mormons).
Of course, it isn’t politically correct to say such things. “One must respect people’s religious convictions.” And because we must respect people’s religious convictions, we mustn’t be impolite and call their bullshit just what it is -- bullshit! After all, we wouldn‘t want anyone’s magic underwear to get all scrunched up in an edible knot.
We must respect the hammer they use to clobber us.
Tellingly, no one ever explains WHY we should respect these people whose understanding of right and wrong (let alone “equality”) has not evolved since The Inquisition!
Would you respect a physician who still uses bleeding as a cure for fevers? Or a mathematician who refuses to learn to compute any equation since the time of Euclid? Respect an astronomer who refuses to learn anything since Copernicus? No?
Then why do we respect anyone else’s 2000-year-old ignorance and hatreds and hypocrisies? Because they share imaginary friends who don’t like us?
Oh hell no! No.
Again, the enemy is religion itself -- all religions; all denominations of any religion; any and all delusional imaginary-friend herd-think. And yes, of course that includes the fellow travelers at MCC and Dignity and Glide and Holy Redeemer -- if you help propagate the imaginary space-god friend bullshit, you’re part of the bullshit the rest of us have to fight!
As long as “faith” is more respected and more important than equality to 52% of Californians, Prop 8 will be the law of the land. We will never win this battle until we acknowledge that the enemy is religion itself.
Although I voted no I do get a laugh out of the hysterics of the chronic morally outraged Bay Guardian kooky left, the religious wing-nuts vote their morals and the morally superior left is outraged at the morally superior religionists.
When like the Guardian you base your entire world view on being the worlds self-appointed moral squad and your morals get beat out by the other sides self-appointed morality...
...well, you would think that maybe the screamers at the Bay Guardian would take a look at their own world view of entitlement the same way they think the relgionists should.
I think that people should be left to their own devices, I have no interest in being anyone's keeper, unlike the nut bags at the Guardian who have never seen a coercive law wrapped in liberal mantras they have not liked.
Gays should be able to get married just as I should not be coerced to recycle or whatever crazy scheme the born again christian at the Bay Guardian think is the best for the rest of us.
Lesson never learned though. True Believers never have to think, just read a Guardian opinion piece on freedom and see how it all works.
clowns.
You think people should be left to their own devices, huh tough guy? Personally, I believe in our Bill of Rights and the concept of human rights, which it's up to the government to ensure against would-be bullies who have ridiculous role models like John Wayne.
Sincerely,
Steven T. Jones
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