A Proposed CA Constitutional Amendment to Overturn 8
While all too many gay activists have busied themselves throwing a temper tantrum expressing their outrage at last week’s California vote in favor of Proposition 8, a few gay writers and leaders have exercised restraint, counseling caution and developing a new strategy to promote state recognition of same-sex marriage.
I believe the broader strategy should be (to do what I have been counseling for as long as I’ve been blogging about gay marriage) to make an affirmative case for extending state recognition of marriage to monogamous same-sex couples.
On the particular issue of the recently (& popularly) amended California constitution, we should not move to explicitly overturn its provision codifying the traditional definition of marriage with one expanding that definition. Instead, we should give the elected legislature the authority to determine the qualifications for marriage.
I e-mailed my friend Dale Carpenter, a law professor at the University of Minnesota, for help with the language. He cited the language of he Hawai’i marriage amendment passed in 1998: “The legislature shall have the power to reserve marriage to opposite-sex couples.” His preference would be to craft the provision as follows, “The legislature shall have the power to decide whether to reserve marriage to opposite-sex couples.” (Emphasis added to highlight the differences.)
Given how the California legislature has twice voted to recognize same-sex marriage, this would mean that once the provision were enacted, all the legislature would need do would be to vote again on the issue. This would confer legitimacy on the legislation. Elected officials, answerable to the citizens, would take responsibility for the new law.
Not just that. It would easier for many people opposed to the notion of same-sex marriage to vote for a constitutional provision which itself did not explicitly sanction same-sex marriage.
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So what happens when a different legislature comes along and decides that same sex marriage isn’t okay in California? Allowing the legislature to vote on something isn’t instilling a right, is just making a law. And, I can’t see people who voted against same sex marriage being blind enough to vote to allow the legislature to vote in something that the people have previously voted out. I would argue that a lot of the people who voted yes on Prop 8 did so out of deep felt convictions that “marriage” is between a man and a woman. I don’t see how those folks change their convictions and let the legislature against those beliefs.
Comment by Hunter — November 14, 2008 @ 4:24 pm - November 14, 2008
State recognition of marriage is not a “right.”
Comment by GayPatriotWest — November 14, 2008 @ 5:29 pm - November 14, 2008
Good post, and I think it’s a good idea in principle. The problem is, what is the constituency for this proposal? Opponents of gay marriage won’t support it because it overrules Prop 8 and hands the issue to a pro-SSM legislature. Gay marriage supporters would prefer it to Prop 8, of course, but they won’t prefer it to an amendment that outright endorses gay marriage.
The one constituency I could see supporting this amendment is a pretty small one — those who support SSM or are agnostic about it, but do not want either courts or constitutional provisions to decide the issue. I don’t know how small that group is, but it *might* be enough to make a difference in a close vote.
Overall, this is the kind of creative thinking we are going to need in the coming years.
Comment by Dale Carpenter — November 14, 2008 @ 6:15 pm - November 14, 2008
>State recognition of marriage is not a “right.â€
Dan, you are wrong.
With the Loving ruling, the U.S. Supreme Court found that Marriage was indeed a fundamental Civil Right and the State had to recognize it. That’s a matter of decided law.
The argument now is if that Civil Right extends to two people of the same gender who wish to get married. Courts in California, Massachusetts, Vermont and New Hampshire have ruled that, under their existing State constitutions, it is. New York ruled that it wasn’t.
Prop 8 revoked this right from the people of California — which in turn opened up a whole new set of arguments as you can’t fundamentally revise the California Constitution through a simple majority vote.
Marriage -is- a Right, hands down. Is it a right that two people of the same gender have? I think it is under Equal Protection guarantees. We’ve argued about this before. I find an argument ad antiquitam fallacious.
Comment by Jody — November 14, 2008 @ 7:27 pm - November 14, 2008
That should have said, “I’ve always found your argument, which really is just an argument ad antiquitam, to be fallacious.”
Comment by Jody — November 14, 2008 @ 7:29 pm - November 14, 2008
No, Jody, I’m not wrong.
I can’t argue with someone who doesn’t even get my point.
Comment by GayPatriotWest — November 14, 2008 @ 8:13 pm - November 14, 2008
Jody,
You touch on the answer to your own premise. The four states that have found same-sex marriage to be a right do so (erroneously) on the basis of language unique to their state constitutions. No one has found a right to same sex marriage based on the US Constitution. Indeed, far more courts have found no right to same sex marriage, and the continued reference to Loving is disingenuous at best, for the language of loving makes it clear that the states interest in marriage is procreation, something that makes gender, unlike race, very relevant:
Indeed, every court since has found that the idea that the Constitution requires us to pretend that same sex couples are the same as opposite sex couples.
But I know of no one that actually accuses the left of having common sense.
Comment by American Elephant — November 14, 2008 @ 8:44 pm - November 14, 2008
That should read “every court since has found that the idea that the Constitution requires us to pretend that same sex couples are the same as opposite sex couples flies in the face of common sense:”
Comment by American Elephant — November 14, 2008 @ 8:47 pm - November 14, 2008
Furthermore, since Jody insists that marriage is a “fundamental right” that can be denied to no one, regardless of anything else, he needs to come out and state that he finds restrictions on marriage by age, blood relationship, and existing marriage to be discriminatory and unconstitutional.
Comment by North Dallas Thirty — November 14, 2008 @ 10:30 pm - November 14, 2008
#2. Supreme Court? or Gay Patriot? Um, Supreme Court….
Comment by jimmy — November 14, 2008 @ 10:37 pm - November 14, 2008
Even if we won an repeal via the ballot box, it does not stop the Proponents of 8 to put new initiatives on the ballot over and over like the parental notification initiative.
Comment by matt from california — November 15, 2008 @ 12:16 am - November 15, 2008
dhimmy
4 of seven on the Supreme Court or 52% of 100%. Um… 52%.
Look, I can use your juvenile arguements better than you can.
Dimwit.
Comment by The_Livewire — November 15, 2008 @ 1:34 pm - November 15, 2008
matt for CA? So what’s your answer?
Comment by The_Livewire — November 15, 2008 @ 1:34 pm - November 15, 2008
Arrgh, got so frustrated at trolls that I missed the original reply I wanted to make.
Dan, this idea has merit. I do think that the ‘No on 8′ crowd is never going to have a better window of a friendly government agency approving the language of the ammendment. Your thoughts on this mirror my thoughs with the Ohio DOMA. Namely that Ohio’s DOMA pulled the decision away from the courts and government, and locked it in the hands of the people. I voted for OH-DOMA to protect my state from trigger happy judges. I’d vote for its revocation since it would again be a choice of society, not goons in black robes.
Comment by The_Livewire — November 15, 2008 @ 2:06 pm - November 15, 2008
How about just getting the gov’t and courts out of marriage completely.
Comment by a different Dave — November 16, 2008 @ 6:44 pm - November 16, 2008
Marriage is not a fundamental right. The choice to associate and enter into a social contract with anyone you so desire is. “marriage” is a word that confers a religious endorsement upon a relationship and frankly, that’s a stupid thing for the state to do.
Tow things should be fought for and neither of them usually are. Firstly, people should be demanding that the state stop defining their relationships for them. marry in a church if you want but don’t get the government to confer that religious endorsement for you. It’ll just end up pissing people off…as it has. Second, equality should truly be asked for in an equitable way. The government should get out of the marriage business and instead of conferring marriage licenses to anyone, they should be issuing licenses of domestic contract or partnership or whatever you want to call it.
Why do people clamour so for the state to define their relationship? I’m never getting married but heck, I’m spending my life with some one.
Comment by Zach Bell — November 16, 2008 @ 9:14 pm - November 16, 2008
>I can’t argue with someone who doesn’t even get my point.
Dan, I do get your point: marriage is a privilege and we have to ask the majority really really nicely if we can have one.
[No, Jody, that's not my point. Go read my posts and consider their meaning free of your jargon. Do you understand what I mean by social change? Do you want to provide some examples of state recognition of same-sex marriage aside from recent court decisions? --Dan]
The fact is though that Marriage is a Civil Right. That’s what Loving was all about. To state that Marriage is not a Civil Right is to be in error. You may disagree with that finding, but say as you did to Hunter, that Marriage isn’t a Right is to be factually wrong.
It’s because it is a Right that I don’t find the rest of your argument germane. I understand the sentiment behind it. I understand your belief. But in regards to Civil Rights it just doesn’t apply. You don’t “ask” for Civil Rights. They’re yours by birthright.
[Give me a break, Jody, and study the meaning of the term "right" and "civil right." If you find a man whom you wish to marry and who wishes to marry you, even under a Prop 8 regime, you can do so. The state just won't grant the privileges to your marriage it does to straight marriages. Indeed, it will grant those privileges under California law, save to call your union marriage. As long as you're free to do something, you have the right. I have no clue when you came up with the notion of state recognition of marriage as a birthright, reading a Hallmark card or something. And go read Loving and note the the choice the Lovings had, to leave Virginia or to go to jail. When's the last time you heard a state threatening to arrest a gay couple for calling themselves married?
You're not arguing with me, you're offering slogans. -Dan]
Comment by Jody — November 17, 2008 @ 4:06 am - November 17, 2008
>Indeed, every court since has found that the idea that the Constitution requires us to pretend that same sex couples are the same as opposite sex couples.
AE, when arguing that “every court since” has affirmed something and the erroneous findings of State courts, don’t cite a 1971 Minnesota State Supreme Court decision. Undermines your argument right off the top.
Comment by Jody — November 17, 2008 @ 4:17 am - November 17, 2008
Jody, so we can put you in the pro-polygamy/polyandry/below the age of consent group? Affter all, if Marriage is a ‘civil right’ we can’t deny it to anyone. If we deny it to anyone, then it’s a privilge.
Thanks in advance for your reply.
Comment by The Livewire — November 17, 2008 @ 7:56 am - November 17, 2008
AE, when arguing that “every court since†has affirmed something and the erroneous findings of State courts, don’t cite a 1971 Minnesota State Supreme Court decision. Undermines your argument right off the top.
You may wish to educate yourself before making such statements, Jody.
By the way, Jody, this is the same court and same set of justices who wrote Loving. Why, if as you claim, they stated in Loving that same-sex marriage should be allowed and that bans on it were unconstitutional, did they fully uphold and endorse bans on it a scant five years later?
Comment by North Dallas Thirty — November 17, 2008 @ 12:12 pm - November 17, 2008
>You may wish to educate yourself before making such statements, Jody.
If by “yourself” you mean you, ND30, then I think you’d have a point.
And if you scroll up, you’ll see that I never said the SCOTUS found for Same-Sex marriage. I said that Dan factually incorrect — Marriage was found to be a Civil Right. The argument occurring now, with State Court decisions, the protests, even the Baker ruling, is does that Right to same sex couples as well.
You can state that it doesn’t, and cite Baker in your claim. That doesn’t change the fact that, thirty years and Bowers later, the issue is far from settled.
Comment by Jody — November 17, 2008 @ 4:01 pm - November 17, 2008
>Jody, so we can put you in the pro-polygamy/polyandry/below the age of consent group? Affter all, if Marriage is a ‘civil right’ we can’t deny it to anyone. If we deny it to anyone, then it’s a privilge.
Well, if I took the position that history defined marriage then sure, given that polygamy, polyandry, underage and even incest was a normal for the institution since it began. Thankfully, we now look at things as the competing and conflicting series of facts, issues, and harm that they actually happen to be.
Comment by Jody — November 17, 2008 @ 4:13 pm - November 17, 2008
So, Jody, given your reliance on the constitution as the adjudicator of civil rights, I guess that means that you believe both Dred Scott and Plessy v. Ferguson to be correctly decided. And in the current day, you join me in finding the constitution confers an individual right to own an handgun.
A “right” mean the freedom to do something. It doesn’t mean the ability to allow the state to accord a certain privilege.
It’s why the libertarian argument that the state should get out of the marriage business is so compelling.
Comment by GayPatriotWest — November 17, 2008 @ 5:10 pm - November 17, 2008
Equivocation Jody.
Comment by The_Livewire — November 17, 2008 @ 7:12 pm - November 17, 2008
>Jody, given your reliance on the constitution as the adjudicator of civil rights…
Dan, it’s not the constitution that adjudicates. It’s the processes set up by the constitution that adjudicate. Our rights were there before the constitution and will remain long after it is gone. You did read John Adams right?
>I guess that means that you believe both Dred Scott and Plessy v. Ferguson to be correctly decided
No, I believe they were wrongly decided. And through the process set up with our constitution, in time, we figured that out and changed things accordingly. The constitution doesn’t guarantee perfection Dan, merely a process by which a more perfect union can be achieved.
I actually know that you know this. The jerky phrasing and intent of your question is beneath the good man I know you to be.
>And in the current day, you join me in finding the constitution confers an individual right to own an handgun.
Actually, I do believe that. Can that right be restricted ways we’ve restricted libel and slander from the protection by the First Amendment? Probably. Yet with all the myriad restrictive laws and competing interests, that’s another discussion entirely.
>It’s why the libertarian argument that the state should get out of the marriage business is so compelling.
Again, I agree. Civil Unions — or whatever — for couples, straight or gay. The churches can award “marriages” by whatever rites, standards and requirements appropriate to the dictates of their particular superstitions.
For the moment though, we’re living in a land where the civil government is involved in Marriage. Hence the arguments, protests and battles will continue.
Comment by Jody — November 17, 2008 @ 8:11 pm - November 17, 2008
Yes, Jody, I’ve read John Adams. Please quit it with the condescension. So, if state recognition of marriage is a right, please identify a leading political scientist, philosopher, American founder, etc. who so identified it before Loving and suggested that courts, rather the legislature, should decide the standards for marriage.
Recall, we’re talking about state recognition of marriage here, not the freedom to marry.
And please, make an actual argument instead of merely repeating that marriage is a civil right.
Comment by GayPatriotWest — November 17, 2008 @ 11:38 pm - November 17, 2008
You don’t “ask†for Civil Rights. They’re yours by birthright.
Then, Jody, explain why it is constitutional to deny that “birthright” to those who want to marry children, animals, multiple people, and their blood relatives.
Comment by North Dallas Thirty — November 18, 2008 @ 1:03 pm - November 18, 2008
[...] the Court uphold Prop 8, I do believe the people should overturn it, with, as I have suggested previously, an initiative amending the constitution to make the elected legislature responsible for defining [...]
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