Two months ago, I outlined the tortured claim opponents of California's Proposition 8 make to argue a constitutional amendment is unconstitutional. Prop. 8 opponents have now made such arguments (Reply at 4-23, filed Jan. 5, 2009), supported by state Attorney General Jerry Brown (Answer Brief at 75-90, filed Dec. 19, 2008). (These filings, and those supporting Prop. 8 (e.g., Interveners Response at 4-14, filed Jan. 5, 2009), are available here.) Oral argument may be held as soon as March.
Yet, in re-reading the California Supreme Court ruling, In re Marriage Cases, 183 P.3d 384 (Cal. 2008), I was struck by this line in Chief Justice Ronald George's majority opinion (slip op. at 113; 183 P.3d at 450):
[T]he provisions of the California Constitution itself constitute the ultimate expression of the people’s will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints that the people themselves have imposed. . .In a (non-binding, obviously) media interview shortly after the decision, CJ George specifically applied that same formula to the state's judiciary:
When a court is faced with the responsibility of having to declare a measure unconstitutional, it's not thwarting the will of the people, it's really adhering to the ultimate expression of the people's will, namely the constitution that the people have adopted.Question: Isn't that language, and attitude (reflected in the George interview), a sign that the California Supreme Court will affirm the constitutionality of the people's will embodied in Prop. 8?
See also George Will in Thursday's Washington Post:
Just eight years ago, Proposition 22 was passed, 61.4 to 38.6 percent. The much narrower victory of Proposition 8 suggests that minds are moving toward toleration of same-sex marriage. If advocates of that have the patience required by democratic persuasion, California's ongoing conversation may end as they hope. If, however, the conversation is truncated, as Brown urges, by judicial fiat, the argument will become as embittered as the argument about abortion has been by judicial highhandedness.MORE:
Brown's reasoning would establish an unassailable tyranny of a minority -- judges -- over any California majority. Brown, 70, California's former and perhaps future governor, once was a Jesuit seminarian. One American Heritage dictionary definition of "jesuitical" is "given to subtle casuistry"; one of that dictionary's definitions of "casuistry" is "specious or excessively subtle reasoning to rationalize or mislead." These definitions, although unfair to Jesuits, are descriptive of Brown's argument.
Tom Hanks says Prop. 8 supporters are "un-American."
MORE & MORE:
Hanks apologized for his remarks:
Last week, I labeled members of the Mormon church who supported California's Proposition 8 as "un-American." I believe Proposition 8 is counter to the promise of our Constitution; it is codified discrimination. But everyone has a right to vote their conscience — nothing could be more American. To say members of the Church of Jesus Christ of Latter Day Saints who contributed to Proposition 8 are "un-American" creates more division when the time calls for respectful disagreement. No one should use "un- American" lightly or in haste. I did. I should not have.(via Don Surber, twice)