Friday, December 19, 2008

Government of the People, By the People, For the People

So the latest news: the state of California's fine Attorney General, Jerry Brown, has publically stated he will not defend prop 8 to the California Supreme Court.


...He and senior lawyers in his office have looked closely at the court's precendents and at the recent marriage ruling and concluded that they couldn't defend prop 8.

Excuse me? Did the people of California not vote twice to protect traditional marriage?

But in a lengthy filing late Friday, he argued that the measure was "inconsistent with the guarantees of individual liberty" in California's governing charter.

"Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification," Brown said.

"Extinguish fundamental constitutional rights"... um, I thought religious freedom and the freedom of speech were "fundamental constitutional rights". We've already seen those rights squashed, and the issue hasn't even been settled.

The court is reviewing lawsuits filed by gay and lesbian couples and by an array of local governments, led by San Francisco, that contend that ballot measure exceeded the legal limits on initiatives by destroying fundamental rights and stripping judges of their authority to protect a historically persecuted minority.

I think there are other minorities out there that have been persecuted a lot longer and a lot worse than same sex couples. And the more I've been researching this issue, the more I find that heterosexual couples and those that do not codone same sex marriage or that lifestyle are the ones being persecuted. Not to mention the members of the Church of Jesus Christ of Latter Day Saints, which there are less members of the Church in California than there are gay/lesbian people. So who's really the minority? And who's really being persecuted?

As the "chief law officer of the state," Brown said in his brief, he is "duty bound to uphold the whole of the Constitution" and not merely the power of the people to change the laws by initiative.

It was my understanding that the Attorney General's job description is to represent the wishes of the people. And the people have spoken twice. And what power do the people have if not to change the laws? This is our country. If the majority of the people want to uphold traditional marriage, then that is what should happen, whether the Attorney General (and other public leaders) agree or disagree.

A little FYI on Jerry Brown's position regarding the whole same sex issue, he is the brilliant one who changed the wording on the ballot to state "Eliminates the Rights of Same Sex Couples to Marry." So why is the media acting (emphasis on the word acting) so surprised that he would come out and say he's not going to uphold the will of the people?

Is this not a government of the people, by the people, for the people? Who are the people? Why do we vote if we can't even count on our leaders in the state capitol to uphold our wishes? Jerry Brown's job isn't hard... he walks into the Supreme Court and says, "The people of California have voted twice on this issue. This is what they want. We need to uphold their wishes." (I know it's not that simple, but you get the idea.)

Side note - I know of a governor in California not to long ago who was kicked out of office for doing far less than what Jerry Brown is doing. Hmmmm...

You can read the entire article at the


Rick said...

There are a lot of people that shouldn't be in office. I would have thought that the Attorney General would be neutral when it comes to a proposition. I think the only reason Proposition 8 got as far as a vote is that the judges and officials like Jerry Brown figured it wouldn't pass. This does not bode well.

Scott said...

I agree with much of what you wrote, but do you see any danger in a society that gives strict heed to the will of a majority? Like it or not, the Constitution of the United States was written with a central theme of protecting minorities against tyranny.

I agree that the will of the people should prevail in this instance, but I think it's unwise to simply toss out any argument against upholding the majority's view as being silly or invalid.

Heather said...

Scott - maybe it's because I wrote this post after a long day. I wasn't trying to say that the majority should always be upheld. There are instances where the rights of the minority need to be protected.

Along those lines, when does one decide that the minority needs to be protected over the will of the majority?

And in this case, who is the minority? Obviously same sex couples feel they are the minority, but what about the attacks on Mormons? Or the individual citizens who donated small amounts of money to a cause they felt worthy?

Anonymous said...

Remember, it was Jerry Brown who changed the wording in the California voter's pamplet from "ammendment to define marriage as being between a man and a woman" to "ammendment to deny gay marriage". This recent change is not surprising.

Scott said...

@ Heather

I have been planning on addressing both of your questions--who is the minority, and when should the minority be upheld--shortly on my own site. I'll let you know when I get them done.

@ Anonymous

I feel like I'm playing contrarian even though that is not my purpose.

Jerry Brown made the change because the original language of the amendment was written before the court's decision to allow gay marriage. It is part of Brown's mandate to ensure that language accurately describes the effects of any ballot measures. The original language DID describe the amendment's effects BEFORE the court's decision re marriage, but once that decision was made, a change was UNAVOIDABLE.

Certainly, Brown could have chosen language that was more neutral in nature, but it is unfair to his office and his position to simply write off the change he made as a plot against traditional marriage--even if that's exactly what it was.

Roberto said...

RE: Constitutional protection of minorities

The idea that there are "minorities" that are privileged to enjoy constitutional protection should be considered an anomaly. This has entered into the popular imagination, but the only minority that the US Constitution in its Bill of Rights had in mind was the political minority; that is, the losing side of any political question.

Thus, the losing side was guaranteed the right of advocacy as stated in the 1st Amendment right of free speech, of assembly and to be free of the imposition of a state religion.

The rights of minorities based on any other criteria such as race, gender, ethnicity and now, sexual orientation, are pure inventions that have no real basis in the Constitution. Such classifications violate the principle of equality, and it is unfortunate the the courts have led the nation down this very confused and winding road.

Heather said...

Roberto - Thank you for your comments. You are correct in stating that the intentions of our forefathers was to protect political minorities. We have spent so much time trying to make everything "fair" that we have actually restricted our rights. But it's happened over such a long period of time that it's not something that is going to be corrected immediately. However, we need to take that first step.

Scott said...

@ Roberto...

You may well be correct with respect to the letter-text reading of the Founding Fathers' documents, but I don't think it's too big of a stretch to argue that the FF would have considered any form of tyranny something that should be guarded against--political or otherwise. (it need not be eliminated, mind you...but guarded against)

Moreover, if we insist on a letter-specific interpretation of the constitution re minorities, we are left with the uncomfortable position of defining specifically which groups represent political minorities, as opposed to politically-motivated minorities.


Roberto said...

To Scott:

I stated that the political minority is merely the losing side of any political question. That is how a political minority is defined…… as the losers.

The current political minority mostly includes the Republicans, though it is not limited to them.

Thus, Republicans among others continue to enjoy the guaranteed right to advocate an opposing point of view as stated in the 1st Amendment right of free speech, to freely assemble and to be free of the imposition of a state religion as well as a guarantee to equal treatment under the law.

This would hold true, also, for any other group that has a point of view that they would like to see enacted as public policy.

A strict interpretation of the Constitution provides a coherence and consistency that is so blatantly lacking when radical liberties, such as we have all witnessed these last few generations, are taken with this document.

Scott said...

@ Roberto

I think the definition of political minorities as "the losers (of an election)" is quite far from what was meant by the FF in discussing tyranny as one can get.

Many of the protections against tyranny were made before any election was even held under the constitution. The protection was not for "losers" but for minorities who would, by virtue of their small population, be forced into losing. Being a loser ex ante and being a loser ex post are by no means the same thing.

The Senate, where all 50 states have equal voting power--is a great example of ensuring pre-election fairness.

Roberto said...


Don't confuse any discussion the FF might have had concerning tyranny with the US Constitution in its final draft.

The Bill of Rights clearly protects minority viewpoints; it does not guarantee them the successful adoption of their points of view as public policy. This is the whole point of a government OF the people, BY the people and FOR the people. It is meant to represent the majority.

The fact is that for too long in history the prevalence of minority viewpoints were the rule and not the exception, for what is the aristocracy if not a minority? The FF crafted government in order to avoid the imposition of a minority over the majority.

To say that a minority would be forced into losing is the dog chasing its tail, because what would it be otherwise if the minority were to win…… except tyranny?! It is precisely, because groups have points of view that are in the minority that they are defined as minorities.

It is important that democratic societies uphold majority rule. Minority points of view should continue to have constitutional protection such that they might influence the majority or become, themselves, the majority point of view, as has often happened.

Scott said...

@ Roberto,

Isn't it a bit odd to say that we should separate the FF's discussions from the FF's documents? The documents were simply a formalization of what the discussions represented, and to toss out any underlying assumptions that went into the creation of the Constitution itself seems, well, odd.

I agree that a victory by the minority in all things is tyranny as well--that is why I noted in my previous response to you that tyranny cannot (inasmuch as any victory can be perceived as tyranny by the loser) be eliminated, but we should nevertheless guard against unjust tyranny.

In my original response to Heather's post, I suggested that any society which gives strict heed to the will of a simple majority is a scary thing. The cards could one day be in someone else's hand, voting on our rights.

Keep in mind--we are not talking about just some minority's "viewpoint"--in the big picture, yes, but for us in California, we are talking about an actual constitutional right which existed for a minority, and no longer exists.

While I worked very hard for the passage of Prop 8, and would gladly do so again, I think that the fact that 52% of the public were able to simply vote away a right many people consider to be very dear and cherished should give everyone of us pause before we toss out one-liners and dismissive tones toward folks who are upset with us.

pomegranate apple said...

thanks for the post! and the discussion!

Heather said...

Scott (and Roberto) - I appreciate the discussion. I have learned a lot! You both bring up some very good points.

One thing I do want to point out in response to Scott's latest comment is that no one has voted away anyone's rights. In California, same sex couples have the same rights and privileges as married couples. It was actually the creation of domestic partnerships that made life more difficult for married couples in obtaining personal information regarding their spouse. Futhermore, same sex couples never had the right to marry. The Supreme Court's ruling in early 2008 stated that prop 22 was invalid because it was not presented to the voters as an amendment to the state Constitution. So same sex couples had no more and no less rights after the Supreme Court's ruling than they did before. The 18,000+ same sex marriages technically could have been performed before the Supreme Court ruling. They just didn't chose to do so.

Scott said...

@ Heather,

I understand what you're saying, but legally and logically, you're completely incorrect in saying that a right wasn't voted away. Even the description of the amendment itself belies your statement--"Eliminates Right" of Same-Sex Couples to Marry. The fact that civil unions and marriages in California have the same basic privileges does not mean that a right was not voted away, and the the fact that no new privileges were granted to same-sex couples by the SCOTSOC does not mean the right never existed as a stand-alone right.

This is a very simple concept: A man and another man HAD a right to call their union a legal marriage. Because of the vote, a man and another man NO LONGER HAVE a right to call their union a legal marriage.

A right--the right to a same-sex marriage--was voted away, let there be no mistake about it, and let's not let rhetoric--whether it's produced by Yes on 8 or No on 8, get away with half-truths. A right was voted away. That does not mean it shouldn't have been voted away, but there is no point in denying it.

Heather said...

Marriage isn't a right, it's a contract granted by the state. So no rights have been voted away.

Scott said...

"Marriage isn't a right, it's a contract granted by the state. So no rights have been voted away" = Non sequitur

Same-sex couples have no right to that contract. You do. I do. They don't. A right was eliminated, and no amount of saying it was "just a contract," or spinning it around and around until it fits a definition we like doesn't change the legal definitions: The Supreme Court--the only legal body that matters here--declared it to be a right. That is, legally speaking, the end of the story. The fact that you disagree with it being a right doesn't falsify the claim that a vote was voted away. I'm sorry, but there is simply no dispute about this one.

I am very much in favor of preserving traditional marriage, and have worked as hard as anyone I know towards that end. However, I am also determined to make sure that myths and politically convenient half-truths have no place in the Yes campaigner's arguments. Much of what the Protect Marriage organization said during the campaign was complete bilge--and the idea that no "rights" are being eliminated is "right" at the top of the list.

Let's make the case for traditional marriage on it's own merits--we don't need to use any straw-man arguments in an attempt to bolster truth. We are, despite my differing views on the "means" working for the same "end" here.

Heather said...

Scott - I think we have different understanding of the word "right". Let's step away from the marriage issue for a second and take another contract - a mortgage. A year ago, a person with an annual income of $50,000 could obtain a mortgage with little to no money down. Today, the terms of the contract have changed to where you need 25% down and must prove the monthly payments will be no greater than 1/3 of your monthly income. Does that mean my right to a mortgage has been taken away? A year ago, I met all the terms of the contract. But the terms changed and I no longer meet them.

It's the same thing with marriage. It's a contract. The voters of California changed the terms. Either you meet the terms or you don't. But as with a mortgage, marriage is not a right.

Yes, we are both fighting for the same thing - protect traditional marriage. Traditional marriage does stand on its own merits. However, I feel it important to address the opposition's claims. There are many fence sitters who are looking for answers.

Also, thank you for this discussion/debate. It really makes me stop and think, which I appreciate.

Lani said...

Love the mortgage analogy, Heather. Definitely good points.

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