Friday, January 16, 2009

Let Me Entertain You, Part 2

UPDATE: below

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.

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.
MORE:

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)

6 comments:

Geoffrey Britain said...

"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...a sign that the California Supreme Court will affirm the constitutionality of the people's will embodied in Prop. 8?


I suspect that you are misinterpreting George's comment Carl. I 'read' those words as him meaning exactly the opposite.

He's saying that IF the CA SC justices rule that prop8 is unconstitutional then they are NOT overturning the 'will' of the people because "the ultimate will of the people" IS the State's Constitution... AND that the justices job is to interpret...of what that 'ultimate will' consists...

He completely avoids the issue of whether the court is using logically falacious reasoning to arrive at that ruling.

Geoffrey Britain said...

To add a bit more follow-up:

George is avoiding the real issue; the court's use of blatantly fallacious reasoning to rule by judicial fiat.

When justices abuse their position of power to manipulate the 'meaning' of the constitution so as to support their personal agenda... to use their 'rulings' as a means of 'social engineering' then they are guilty of judicial malfeasance.

When the people pass an amendment to the constitution, they are expressing their desire to change, modify or clarify, precisely of what their ultimate will consists.

The Justices are in effect saying, through fallacious reasoning, that the people may only change the constitution in the ways of which the Justices personally approve and that they are willing to misuse their power to block any expressions of 'ultimate will' with which they personally disagree.

That is judicial malfeasance.

Carl said...

GB:

I suspect you're right about George's intentions. And Petitioners and several Interveners supporting Petitioners cited the line in support of overturning Prop. 8. My point was that the language, and implication, is flatly inconsistent with the state's "natural law" argument that Will discusses. If the constitution is "the ultimate expression" of state-law rights in California--and it is--there is little doubt about what it now says.

I was surprised that Interverners on the other side didn't cite the line, just to make it more difficult for George to "walk back the cat." But Judge Starr's brief (for Interverners supporting Prop. 8) was good, and I'm optimistic that the California Supreme Court will shrink from the "judicial malfeasance" you properly fear.

Geoffrey Britain said...

"If the constitution is "the ultimate expression" of state-law rights in California--and it is--there is little doubt about what it now says."

There was no doubt about what it said before prop 8, nor of course, after. The Justice's rationale rests solely upon the premise that limiting marriage to one man and woman is discriminatory. And of course it is, but so is any other limitation upon whatever form of 'marriage' consenting adults may wish.

Given the inherently discriminatory nature of 'marriage' the only biologically determined, objective line of demarcation is the one man/one woman definition. Any other 'line of demarcation' is arbitrary and therefore legally indefensible when its constitutionality is considered.

"I'm optimistic that the California Supreme Court will shrink from the "judicial malfeasance" you properly fear."

I wish I shared your optimism Carl. I cannot because the 4 Justices whose 'fractured logic' made prop 8 necessary, give every indication of either not recognizing their prior judicial malfeasance or just not caring.

Either way, there's no reason I can see why they will not continue to attempt to rule by Judicial fiat.

They apparently do not understand that 'successfully' ruling by Judicial fiat will, in time, destroy the very republic upon which their efforts at 'improvement' are directed.

MaxedOutMama said...

Going with GB on this one, Carl.

I think the CA justices are going to be in a real tizzy over this. They want to declare it unconstitutional, but DO THEY DARE? It will be a test only of their bravery, because the hubris was already inherent in the original decision.

Carl said...

One reason I'm optimistic is that California allows recall of state judges--and conservatives got ultra-liberal, ultra-wacko Rose Bird (then chief justice) recalled around two decades ago. Chief justice George and the other judges no doubt remember that.