Free Speech and Proposition 8

Some commentators think that Judge Stephen “They Can’t Catch Me Every Time” Reinhardt’s opinion in Perry v. Brown was clever, others that it was too clever by half. Without entering into that argument, I’d like to point out an aspect of the Ninth Circuit’s ostentatiously narrow opinion that makes it vulnerable for reversal on equally narrow grounds (albeit grounds that none of the litigants is likely to put forward).

According to Judge Reinhardt, because California already granted homosexual couples who entered into “civil unions” all the rights of marriage, only “animus” could have led the electorate to take away the name of “marriage”. He then waxed at length on how sweet and wonderful that name is.

Sweet, indeed, but the question of whether a same-sex union is socially or morally comparable to a heterosexual marriage is a much controverted question, on which, thanks to the First Amendment, everyone has the right to take either side. The fact that people disagree is disagreeable to some, but our Constitution doesn’t allow shutting down one side of the debate just to spare the tender feelings of the other.

By enacting Proposition 8, a majority of the voters of California put their State on record as taking a particular view of the quality of same-sex vs. opposite-sex relationships. The California Supreme Court had previously tried to commit the State to the opposite view. Given that the State cannot avoid taking one side or the other – it either calls same-sex unions “marriages” or it doesn’t – the people are surely entitled to the last word. And since Proposition 8 didn’t deprive same-sex couples of any substantive right, there is no issue in the case except whether the judiciary can compel the State to express an opinion that most of its citizens don’t hold.

For what it’s worth, my prediction is that the Supreme Court will reverse Perry 6–3 or 7–2. If Stephen Reinhardt can’t bring himself to write an opinion full-throatedly endorsing a Constitutional mandate for same-sex “marriage”, how likely is it that Anthony Kennedy, or even Stephen Breyer, will be more radical?

Comments

[J Motes]

Kevin Standlee wrote: "But Tom, are you not saying that fundamental rights should be subject to popular vote?"

Standlee is committing a common error in argument, defined by http://begthequestion.info/ as: "'Begging the question' is a form of logical fallacy in which a statement or claim is assumed to be true without evidence other than the statement or claim itself. When one begs the question, the initial assumption of a statement is treated as already proven without any logic to show why the statement is true in the first place."

In this case, the initial assumption of Standlee's statement that is treated as already proven is his assertion that homosexual marriage is a fundamental right. That idea is neither supported nor proved in his comment, nor has it been accepted in the national debate, nor has it been recognized as such throughout world history. This point must be proved before it can be used as a foundation for the rest of the argument. Like many logical fallacies, "begging the question" seeks to hijack an argument by eliminating the chance that listeners will examine its foundation and discover its weakness or its falsity.

No, fundamental rights should not be subject to the popular vote. (Although it happens all the time to the Second Amendment. And the First Amendment is getting a real flogging this year.) Many people around the world and throughout history do not regard homosexual marriage as a fundamental right -- indeed, homosexuality itself is considered a sin or worse in most religions, from Christianity to Islam.

It's surprising that a "fundamental right" would not have been discovered until just a few years ago. Modern opinions do not a fundamental right make, however much the left is trying to force a variety of new "rights" on us.

Standlee needs to establish this "fact" before basing an argument on it. The rest of his comment is irrelevant if not incompetent because his initial assumption is unproved.

[Account Deleted]

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[Tom Veal]

There’s no fundamental right to be protected from other points of view. Judge Reinhardt conceded – in fact, vigorously asserted – that California had granted same-sex couples all of the substantive rights of marriage. The popular majority was not, however, willing to accept the California Supreme Court’s philosophical opinion that a same-sex union in the same as a marriage. If one analyzes the issues the way Judge Reinhardt’s decision did, it was simply a question of, who gets to decide the State’s view on a question where taking one side or the other is unavoidable and no actual substantive right is involved? Does anyone really believe that judges should be able to overrule the electorate on matters of opinion as well as law?

[Kevin Standlee]

But Tom, are you not saying that fundamental rights should be subject to popular vote? If that were always the case, would we still not have slavery, or at least heavy Jim Crow laws? And surely women wouldn't have the right to vote.

But, if we stipulate what I think is your implied statement that fundamental rights should be subject to popular vote, how about if there's a new proposition put before California's voters that both repeals Proposition 8 and states positively and unequivocally that same-sex couples do have the same rights of marriage that opposite-sex couples do. Assume that this passes by the same margin that Prop 8 did. Do you think that would end the matter? I doubt it.

In my opinion, the opponents of marriage equality will engage in an endless loop: If the courts rule in favor of it, it's "judicial activism" and they'll go to the legislature or the initiative. If the legislature authorizes it, it's "not listening to the will of the people" and they'll go to the initiative. If the people vote in favor of it, then "the wrong sort of people voted," and they'll go to the courts to try and block it or try some way through the legislature, possibly by forgetting about "states' rights" and trying to get the federal government to intervene. Lather, rinse, repeat.

In such cases, one side has either have to eventually give up or resort to what the states of the South did when they didn't like what the legislative process and the vote of the people was giving them.