Patterico's Pontifications

12/20/2008

Is Jerry Brown’s Anti-Prop 8 Argument Valid?

Filed under: General — Patterico @ 12:19 pm



Allah collects some useful links.

Allah seems to think Prop. 8 supporters have more to worry about from the U.S. Supreme Court.

I have written before that this may be the case. Justice Scalia certainly thinks so.

49 Responses to “Is Jerry Brown’s Anti-Prop 8 Argument Valid?”

  1. I hope the U.S. Supreme Court does “mandate” same-sex marriage. For two reasons: 1) There will about 100,000 couples married nationwide, 80,000 of them women, and the country can relax and say “That’s what all that fuss all about?” and 2) When Obama appoints Supreme Court Justices he’ll have Jeremiah Wright asking “Are you going to appoint some God-forsaken sodomite who conspired with the United States government to spread AIDS in the black community?”

    nk (20403f)

  2. “That’s what all that fuss *was* all about?”

    nk (20403f)

  3. I just hope they allow marriage between 3 or more consenting adults. That would be a great step forward in establishing a proper post modern society.

    jk (8cfb7a)

  4. Leave it to Brown to come up with the pretzel logic of a constitutional amendment being un-constitutional in reference to the constitution being amended. A fine intellect of the highest order is your Governor Moonbeam.

    cubanbob (409ac2)

  5. Please, cubanbob….ex-Governor Moonbeam, if you please.

    Another Drew (4dc1ef)

  6. I just hope they allow marriage between 3 or more consenting adults. That would be a great step forward in establishing a proper post modern society.

    Ahh, the polygamy bugaboo. Which is so totally consistent with marriage’s “forsaking all others”.

    nk (20403f)

  7. Isn’t that what the California Constitution says? “This constitution can be amended . . . except when it can’t”?

    Icy Texan (b7d162)

  8. So it sounds like he’s going to try to make a 14th Amendment argument.

    No one has ever successfully done that in federal court.

    Steven Den Beste (99cfa1)

  9. Ahh, the polygamy bugaboo. Which is so totally consistent with marriage’s “forsaking all others”.

    I’m guessing it’s a “bugaboo” because you really don’t have an answer to it?

    Rob Crawford (b5d1c2)

  10. Sure there’s an answer to it. Who, other than Mormons, is promulgating polygamous marriages? Certainly not gays and lesbians.

    If there’s a “Polygamy Lobby” out there that we don’t know about, please inform us.

    David Ehrenstein (65f9fc)

  11. Yes, forsaking all others than the three of us. Nothing wrong or inconsistent with that. It’s only fair we be allowed to have the same civil rights afforded to others. Why should one of us go without insurance or visitation rights?

    jk (8cfb7a)

  12. Hey Patrick,

    I read Allah’s piece, but I think it begs the question. Did Governor Brown really argue that Prop 8 should not be enacted because it was a revision?

    Op-Ed at Opine Editorials points this out…

    From his official statement:

    In this case, Attorney General Brown concludes that existing case-law precedents of the Court do not invalidate Proposition 8 either as a revision or as a violation of the separation-of-powers doctrine.

    So he starts by shooting down the very cases he claims to be supporting.

    I have to admit, my first reaction was like Allah’s that Brown was going to tread the beaten path of revision. But it appears he’s charting his own course.

    On Lawn (102ca1)

  13. That the US Supreme Court decides something doesn’t particularly impress me any more. It may have been Kelo, where they seemed to become lead counsel for King John, Hamdi, Hamdan &Boumedienne, where they ignored at least a century of precedents,( ex parte Merryman, Milligan, Quirin, Eisentrager) about ‘unlawful enemy combatants. Kennedy where they seemed to have deliberately left new statutes pertaining to the decision. Than again. our President elect made it a point not to assign case law as coursework; while a lecturer at Chicago, if a suitable abstracter could be found; like say the impartial Derek Bell. So what do laws matter, if the right sentiment is more important. That is also evident in cursory analysis of his law school exams and syllabi

    narciso (ce69ff)

  14. Is there a demand for three-way gay marriahes? I am under the impression that polygamy is something that wingnut Mormons enjoy.

    Horrible Leftist (d9762f)

  15. Pardon me, I meant to write “wingnut hetersexual Mormons.” Mea maxima culpa.

    Horrible Leftist (d9762f)

  16. HL, were you, at any point since coming here, going to put forth a factual arguement, or were you just going to insult anyone and everyone you can?

    Scott Jacobs (90ff96)

  17. Gee, Scott, someone mentioned three-way marriages. I don’t see any demand for gay ones. The only three- (or more) way marriages I observe are among the heterosexual Mormons, who typically vote about 80% for the wingnuts. I think that’s actually reasonably factual. The fact that it’s insulting is a bonus.

    Horrible Leftist (d9762f)

  18. The gay communities response to Prop 8, filled with hate and bigotry as so ably demonstrated by HL, is backfiring on them.

    SPQR (26be8b)

  19. How so, SPQR? Since the narrow approval of Prop 8, polls have indicated an increase in support for gay marriage. I think the Mormons are going to rue the day that they got involved with that issue. It’s a whole lot like their stand against blacks prior to the convenient “revelation” of 1978.

    Horrible Leftist (d9762f)

  20. Let me get this straight now (no pun intended…no, really).

    52.9% of U.S. voters helped to elect the coming Obamessiah (including, of course, the untold numbers of votes for him by the likes of ACORN-recruited individuals such as Mickey Mouse, Donald Duck, etc.), and it is hailed as a monumental landslide. However, 52.3% voted against gay marriage (and certainly Mickey Mouse and his Disney buddies voted “no” on Prop-8 in this case – or actually didn’t show up on rolls in California outside of Disneyland (since there was no need to worry about the outcome of the presidential race there), yet that 0.6% difference, in the looniest left state in the union, signaled only “narrow approval” of Prop 8? Puh-leeze!

    Dagwood (ba2462)

  21. Before Proposition 8, the California Constitution had precisely two things to say on the subject of marriage.

    The Constitution said that property owned before marriage or acquired during marriage by gift, will, or inheritance is separate property. It also said that transfers to a spouse or former spouse in connection with a property settlement agreement or decree of dissolution of a marriage or legal separation do not constitute a change in ownership for purposes of property taxation.

    With the passage of Proposition 8, the Constitution now also says that only marriage between a man and a woman is valid or recognized in California.

    Nowhere did the Constitution ever say that gay marriage is an inalienable right.

    Maybe it should be, but to pretend that the Constitution says it is, is simply dishonest.

    Troopship Berlin (d8da01)

  22. #20

    But, you and I know that to a lawyer, just because it isn’t written specifically into the constitution means that it can be inferred or interpreted to be the intention of the constitution to provide that inalienable right. It’s sort of that psychic knowledge of what should be in their world view so that must be what the authors of the constitution would have said if they had thought of it or had thought clearly about it. No need to actually amend the constitution to change it, just reinterpret it.

    Jay Curtis (8f6541)

  23. You obviously paid no attention to the California State Supreme Court decision that made same-sex marriage legal in California, “Trooper Berlin.” It explains the constiutionality of same-sex marriage in considerable detail. Read it. “Google” is your friend.

    David Ehrenstein (65f9fc)

  24. nk:

    Ahh, the polygamy bugaboo. Which is so totally consistent with marriage’s “forsaking all others”.

    A few years ago, Jonathan Rauch was on Michael Medved’s radio talk show debating gay marriage. I believe it was shortly after the publication of Rauch’s book, Gay Marriage: Why It’s Good for Gays, Good for Straights, and Good for America, which apparently came out in March 2004 in hardcover and in December 2004 in paperback.

    As part of his argument, Rauch recited the marriage vows, and then asked if there was any part of that promise that gay people couldn’t keep.

    Amusingly, he omitted the “forsaking all others” part. Maybe that was the part that gay people would violate.

    GaryC (c563a5)

  25. When it comes to political issues, I tend to be stuck on process, and the revision argument fails on process grounds for me.

    Even if I accept that, once the constitution had been interpreted to require gay marriage, an initiative changing that provision would be a revision and would have to go through the (opaque) revision process, there’s a problem.

    The problem is that on the day the petitions were submitted to the Secretary of State, the constitution had not yet been interpreted to require gay marriage.

    It’s totally unfair to change the rules of the game in the middle. Which process should be used must be determined by the situation when the petitions are taken out, or, in a worst case, when they are turned in. Retroactively invalidating the petitions for improper process when the ‘correct’ process changes two weeks after the petitions are turned in is just wrong.

    aphrael (9e8ccd)

  26. Horrible Leftist:

    Gee, Scott, someone mentioned three-way marriages. I don’t see any demand for gay ones. The only three- (or more) way marriages I observe are among the heterosexual Mormons, who typically vote about 80% for the wingnuts. I think that’s actually reasonably factual. The fact that it’s insulting is a bonus.

    There is another religion that strongly advocated polygamy, and insists that the United States should accept the practice, but that voted strongly for Barack Obama. This religion has roughly 80% as many adherents in the US as all branches of Mormons, including those that no longer accept polygamy, and about 200 times as many worldwide.

    You may have heard of it.

    The Religion of Submission.

    Islam, in Arabic.

    GaryC (c563a5)

  27. It doesn’t matter what the people of California want. The liberal elites with their MSM lackeys are going to rule with an iron fist, dictating their social mores into the legal codex. Those that don’t bow to the elite vision will be placed in legal limbo, no matter the consequences.

    Jason Stewart (fcd770)

  28. When are they going to allow people to marry their dogs and pets? And when are we going to start seeing 5 year olds giving away in marriage to adults? Surely we have progressed beyond that by now, haven’t we?

    love2008 (0c8c2c)

  29. Oh yeah, Jason. As soon as we get gay marriage we’re going to nullify all straight marriages. Isn’t that right?

    David Ehrenstein (65f9fc)

  30. I know when I voted to ratify the 14th amendment, I thought “Hey, I really hope 150 years from now some genius will think I’m really voting for gay marriage.”

    Roy Mustang (ad5f36)

  31. Mr Ehrenstein wrote:

    Sure there’s an answer to it. Who, other than Mormons, is promulgating polygamous marriages? Certainly not gays and lesbians.

    If there’s a “Polygamy Lobby” out there that we don’t know about, please inform us.

    Wait a second, Mr E. Are you sugesting that marriage is aright solely dependent upon the size of the loby demanding it? :)

    The concept of plural mariage has a much stronger and longer tradition, both in the Unite States and around the world, than same-sex marriage.

    Some Dana, somewhere (556f76)

  32. No, it’s just the fact that there is a considerable segment of the population desirous of same-sex marriage. The response that polygamy and marriage to dogs and cats will follow is so specious as to be beneath contempt.

    Slavery has a stronger and longer tradition than same sex marriage. Would you like a return to that? How much would you pay for Barack, Michelle and the girls?

    David Ehrenstein (65f9fc)

  33. Barack got back from a vacation in Hawaii and Marine One flew him back from the airport to the White House.

    As the President stepped off the helicopter, the saluting honor guard was surprised to see he was followed out by 3 Hawaiians – each carrying a succulent, roast pig with a pineapple in its mouth & heaped with servings of poi.

    “Got fresh kalua pig!” said Barack. “Got one for Michelle, and two for the girls!”

    “Good Trade, Sir!” said the honor guard.

    Adriane (497622)

  34. Mr Ehrenstein wrote:

    No, it’s just the fact that there is a considerable segment of the population desirous of same-sex marriage.

    What does “desirous of same-sex marriage” mean? Does it mean the number of people who engage in same-sex relationships who might some day like to avail themselves of same-sex marriage? If so, you still have a rather small percentage of the population, certainly smaller than the 52% of Californians — and far larger percentages in other states — who voted against allowing such it.

    Or do you mean the very sizable minority who voted against Proposition 8? If so, then I’d suggest that “desirous” is the wrong word; tolerant of it might be a better choice.

    Even so, by quantifying the number of people “desirous” of same-sex marriage as a selling point, you have surrendered the argument that it is a fundamental right which has to be recognized, regardless of whether it receives majority approval. You have, in effect, agreed that the voters of California, and the other states in which such initiatives have been on the ballot previously, have a right to determine, by majority vote, whether same-sex marriage is to be allowed or not, and simply disagree with the outcome of those votes.

    The heterosexual Dana (556f76)

  35. But, you and I know that to a lawyer, just because it isn’t written specifically into the constitution means that it can be inferred or interpreted to be the intention of the constitution to provide that inalienable right. It’s sort of that psychic knowledge of what should be in their world view so that must be what the authors of the constitution would have said if they had thought of it or had thought clearly about it. No need to actually amend the constitution to change it, just reinterpret it.

    It’s always fun when the wingnuts bleat about “the rule of law” when they routinely ignore the Constitution. To wit: Amendment IX: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    And we won’t even talk about the wingnut fondness for torture, which violates treaty obligations that, according to Article VI of the Constitution, are to be treated as the law of the land. “Rule of law?” Wingnuts couldn’t give a shit about it.

    Horrible Leftist (d9762f)

  36. HL – You really are tiresome. We already know that David E thinks we are all racists and homophobes, but at least he is creative. Your schtick is stale, old, and tired.

    JD (7f8e8c)

  37. It’s always fun when the wingnuts bleat about “the rule of law” when they routinely ignore the Constitution. To wit: Amendment IX: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    Very good. You have finally grasped the concept of “state’s rights”. This is, btw, what we think things like Abortion should be.

    The state has the right to decide this issue. The state did. The fact that you don’t agree with it does not, in fact, make it wrong.

    And we won’t even talk about the wingnut fondness for torture, which violates treaty obligations that, according to Article VI of the Constitution, are to be treated as the law of the land. “Rule of law?” Wingnuts couldn’t give a shit about it.

    The topic, moron. Please stick to it. And really, would it ACTUALLY kill you to attempt civility once?

    Actually, if it WOULD, then I really must insist.

    Scott Jacobs (90ff96)

  38. Scott – HL likes arguing with that cartoon character of a conservative it has in its head.

    JD (7f8e8c)

  39. Slavery has a stronger and longer tradition than same sex marriage. Would you like a return to that? How much would you pay for Barack, Michelle and the girls?

    That’s because something called the 13th amendment was ratified. So which Amendment to the Constitution states we can’t pass laws allowing only one man to marry one woman?

    Roy Mustang (ad5f36)

  40. Slavery has a stronger and longer tradition than same sex marriage. Would you like a return to that? How much would you pay for Barack, Michelle and the girls?

    David is going for outrage here, but falls waaaaaaaaay short. Easier to just scream RACIST and HOMOPHOBE in your first comment and get it over with.

    JD (7f8e8c)

  41. This whole issue is indicative of how the Left works. The ballot is never actually the end of the story. It is simply the beginning of the fight. Like with abortion, their views do not stand up to public opinion, so they seek refuge in activist Judges who will do from the bench that which they cannot achieve at the ballot box.

    JD (7f8e8c)

  42. The topic, moron. Please stick to it. And really, would it ACTUALLY kill you to attempt civility once?

    Ha ha ha! “Moron, would it kill you to be civil?” God, you people are dumb.

    Horrible Leftist (d9762f)

  43. You have finally grasped the concept of “state’s rights”

    Speaking of “stale, old, and tired …”

    Horrible Leftist (d9762f)

  44. Wow. Is that angry and bitter failure of a troll still posting?

    Tell you what: start insulting Patterico personally. You want to get banned, that is the fastest route.

    As it stands, you come across as someone who needs his or her medications adjusted. Honestly, your posts are childish and nasty and nonproductive.

    As if, I don’t know, there is something else bothering you besides the internet.

    So be polite, or move on (so to speak).

    You don’t like it when the Right puts people in your belief system in one box. So why is it okay for you to do it?

    Here I thought that the Left was about enlightened tolerance.

    You seem motivated more by bile and hatred…the very things of which you have repeatedly accused the Right. If you are correct, time will tell. Why all the fanfare and faux-macho bragging?

    But then, that is what trolls are, and what trolls do.

    Why not be different, and, well, better?

    Eric Blair (e906af)

  45. Ha ha ha! “Moron, would it kill you to be civil?” God, you people are dumb.

    You have YET to make a single post that even ATTEMPTS civility. Not a single one.

    Patterico, honestly. I’m all for opposing views and all, but can we at least shunt this guy into moderation?

    Scott Jacobs (90ff96)

  46. Patterico:

    Is Jerry Brown’s Anti-Prop 8 Argument Valid?

    Hell, no. Reasonable minds can diffrer on whether or not the federal Constitution protects gay marriage, but that’s not the position Jerry Moonbeam is advancing. His view is that Proposition 8 violates the California Constitution, a patently frivolous position given that Prop 8 is itself part of the California Constitution. The Constitution can truly be unconstitutional when you are talking about two different constitutions, but Moonbeam is talking about one.

    As to the federal question, let’s just say that Justice Scalia’s concerns about consistency are misplaced. Since when is Justice Kennedy consistent about anything? Besides, with traditional marriage continuing to enjoy a perfect record among states that have allowed its unwashed masses to vote on the issue, and fast approaching the 38 that would be needed to pass a constitutional amendment if necessary, I don’t think there’s any real danger of a federal court ruling there’s a right to gay marriage, and that ruling sticking for long.

    Apparently the gay marriage people agree, which is why they keep making 14th Amendment arguments under state constitutions but never actually mention the 14th Amendment. But why does every state agree to allow them to frame the debate that way? Can’t they argue in response that the 14th Amendment and its substantially identical state counterpart raise the same issue, and therefore, per the well-pleaded complaint rule, this is really a federal question case and can be properly removed to federal court?

    David Ehrenstein:

    No, it’s just the fact that there is a considerable segment of the population desirous of same-sex marriage. The response that polygamy and marriage to dogs and cats will follow is so specious as to be beneath contempt.

    Hardly. It’s not as though your side is conceding that there is no “fundamental” right to gay marriage, and therefore, the entire debate should held by the legislature and the electorate rather than the courts. Once you argue in terms of “fundamental rights” the public has no right of its own to vote on up or down, then the fact that a significant minority also supports that right politically becomes irrelevant. If it’s all about “rights” more fundamental than everyone else’s right to vote in a democracy, then everyone else can play your game, too. Polygamy is purely between consenting adults. Sure, many of us find their acts distasteful, but guess what? Many feel the same about yours. Bestiality? Yuck, but “yuck” is not a constitutional argument, is it? No, the animals don’t consent, but who are we kidding? That cow I had for dinner last night didn’t consent to be slaughtered, either, nor did any of my pets consent to be owned by me (nor, for that matter, could a human consent to be eaten, killed or owned). Animals aren’t supposed to consent to stuff, any more than an inflatable doll is supposed to consent. So if it’s about democracy, great; your side has an issue many of us really do sympathize with, and these other groups don’t. But if it’s all about rights, that the rest of us aren’t even supposed to be allowed to vote on at all, then take your place in the line with everyone else.

    Slavery has a stronger and longer tradition than same sex marriage. Would you like a return to that?

    No one is arguing for slavery, dumbass. In case you forgot, we even have a constitutional amendment to prohibit it. If we had another mandating gay marriage, we wouldn’t be having this discussion now.

    Xrlq (62cad4)

  47. Yikes — More coffee!

    Please read the California State Supreme Court decision that Prop 8 was designed to wipe out, Xrlq. All the arguments I’d wish to make are contained therin. I was quite suprised by the decision, and of course quite pleased. Not that you care about what may provide happiness for my segment of the poulation, but there it is.

    As I have said before same-sex mariage is a bell that cannot be unrung. The closet is over. Most kids growing up today never enter. They come of age, realize their sexuality and procede to live their lives as best they can, despite sundry socio-political roadbalocks like this and (more important)physical threats to their very lives.

    I’m sure this doesn’t interest you in the slightest. All you want is the power to sneer at those you deem “lesser” than yourself.

    Go right ahead

    David Ehrenstein (65f9fc)

  48. Please read the California State Supreme Court decision that Prop 8 was designed to wipe out

    Which came first, the chicken or the egg. Your statement indicates that the proposition came as a result of the court decision which is quite wrong. The proposition had already been submitted when the court made it’s ruling and then refused to stay the ruling until after the proposition was voted on. Bad call by the judges as this is what threw all the gay couples into limbo concerning the status of their relationships.

    Is Jerry Brown’s Anti-Prop 8 Argument Valid?

    Absolutely not. Doesn’t the Attorney General have the responsibility to defend the laws and regulations that the people have voted on? Isn’t he in violation of his oath of office by trying to undermine a proposition that has been passed by the people?

    Jay Curtis (8f6541)


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