Tuesday, August 5, 2008

A Rewrite of the California Constitution I Missed

Connor Boyak on posted a great article on his blog at:http://www.connorboyack.com/blog/the-protected-class-of-sexuality.

He does a great job pointing out that "re Marriage Cases" has profoundly changed the Constitution and the law of California by adding "sexual orientation" as a protected class with regards to equal rights. Sexual orientation is not a race, a gender or a religion. Despite all the whining from liberals, sexual orientation is not, constitutionally, a civil rights issue. There are laws on the books in California that do, however, recognize sexual orientation as a "protected class." Judge George in "re Marriages" uses this language written by the California legislature as enough of a reason to rewrite the Constitution of California:

“[e]xpanding the rights and creating responsibilities of registered domestic partners would further California’s interests in promoting family relationships and protecting family members during life crises, and would reduce discrimination on the bases of sex and sexual orientation in a manner consistent with the requirements of the California Constitution."

He is also correct about the serious impact that this has on jurisprudence in California. As as dissenting Jurist Baxter wrote on page 22 of his dissent:

"As the majority also notes, the issue is one of first impression in California. I find that circumstance highly significant. Considering the current status of gays and lesbians as citizens of 21st-century California, the majority fails to persuade me we should now hold that they qualify, under our state Constitution, for the extraordinary protection accorded to suspect classes" (my emphasis).

Connor is correct. It's time for Proposition 9: "Equal protection laws in California only apply to race, religion, and gender."

Meanwhile, a "Yes" vote on Proposition 8 will reduce a great deal of the damage this Court has done.


Chino Blanco said...

Sad. Just sad.

What part of Judge George's language do you take exception to?

The part about "promoting family relationships" or the part about "reducing discrimination" ??

A "Yes" vote on Proposition 8 is only going to prolong the agony of bigots who refuse to get their heads around the reality that a majority is emerging among us straight married family types (like me) that sees no threat in allowing others the opportunity to marry.

paulbenedict said...

The words "family relationship" are misleading. A marriage is not a family... no children yet. However, like many good English words, that one too has bitten the dust in the George court. A marriage is now a family relationship in the George Courtroom.

What do you mean by allowing "others to marry?" If you wanted the George court to prescribe laws that value other unions as much as marriage, it did not do that at all.

What the George court did was write marriage out of California law altogether, devaluing marriage and dehumanizing marriage, while leaving the word "marriage" in the law with a misleading and ambiguous definition that is essentially synonymous with a domestic partnership. That's why there are no more "husbands" and "wives" on California marriage licenses.

There are other ways to accomplish equality in California. We do a decent job as a whole. Calling me a bigot for disagreeing with you on this is evidence of a thoughtless approach to government. You need to better... not me.

robert said...

For many years, neither race nor gender discrimination was considered a violation of civil rights. Does it make sense to have a moratorium on "new" civil rights? Or are you suggesting that the civil rights legislation regarding "protecting sexual orientation" should come before the marriage amendment?

robert said...

The court found that sexual orientation is a suspect classification under the California Constitution and, as such, the statute must satisfy the rigorous strict scrutiny test to survive constitutional infirmity. The court noted that the main contention in this area is "immutability." However, the court notes that religion is a protected category under Equal Protection, even though a person can change his or her religion. Why? Because it would not be easy to do so. A person's religion, like his or her sexual orientation, is a very personal and important self-defining characteristic. The court also addressed the rest of the elements necessary to determine whether a particular class is a suspect class and finds that sexual orientation classifications meet every test.

paulbenedict said...

Hi Robert,

It's my contention that race, religion and gender are rights all contained in the language of the Declaration of Independence. These words were proudly echoed in the California constitution. Judges is the twentieth century only ruled that states, and nations, live up to those words. New rights were not discovered. In fact the early arguments about living up to the freedoms Americans claimed were for all people began before the Revolutionary War.

I talk about this in some very early blogs. I also talk about the 'right to marry' as part of the right to pursue happiness.

We don't have a constitutional right to be in a wheel chair, just because it is hard to get out of wheel chairs. Instead, we have rights relating to freedom of access despite the wheel chair. That may be a more promising civil rights comparison than comparing sexual orientation to a race or a religion.

robert said...

"A person's religion, like his or her sexual orientation, is a very personal and important self-defining characteristic". As I cannot understand your religion, you cannot understand my sexual orientation. We are both citizens. If I define marriage differently than you why should your definition be "more" correct than mine in the pursuit of happiness or equality under the law. Your religion includes the unfortunate supposition that I am somehow morally inferior to you and should not have the same rights in my pursuit of equal treatment in civil marriage. I cannot argue such a position as it is bound within the fabric of your own moral interpretation of existence. Race and gender are not "rights' as you indicate...they are facts. Religion and sexual orientation are "rights" as they can both be "changed" by self identification...just as I could be a raging homo and call myself "straight" and you could be an atheist and call yourself "christian". If my "religion" indicated the necessity for same sex marriage would I then have the right to marry? You prefer to offer up gay sexual orientation as a disability of sorts which requires accommodation. To someone who "identifies" as gay, this position sounds absurd

paulbenedict said...

Hey Robert,

It would be OK with me if you left religion out of this discussion entirely. There are, I am told, many homosexuals who take religion seriously. My ideas about government are not based on religion. They are based on the beliefs the founding fathers held to be self-evident. I find those beliefs practically beneficial, eminently reasonable, and a sufficient explanation to all who would be held my friends in peace.

Religion as an inalienable right is a very important point to discuss. People choose their religions... To some it is extremely public (I actually like religions like this better) to others religions are more "personal." Some religions include "secret" rites and stuff...

I’ve posted a bunch of blogs on this stuff. Here are a summary of some of the points from my blog “Dehumanizing Marriage” especially.

Anyhow, what people are includes the ability to choose religious beliefs. Since that ability does not come from government, that ability to choose, that liberty is protected. Self-defense is also a choice and an ability that is part of what we are as people. This liberty, too, exists, then, as an inalienable right that governments, legitimate governments, ought to protect.

The "right to marry" is said by the California Court (and other state courts) to be "implied" by the language of the California Constitution. It was first ruled on in a case concerning interracial marriage back in the 1940's.

It's an interesting question. If one believes that marriage is a religious sacrament, then there is always a third person that authenticates that marriage. Hence, marriage exists after society and governments and is not an inalienable right.

I agree with the California court. It seems that a man and a woman can get married without anyone but heaven's blessings. This gender positive commitment between two people is an ability native to what we are as people. It is prior to government. Hence, all legitimate governments must recognize and protect this inalienable right.

If you envision a government that does not do this, your vision of government is illegitimate.

I am interested in your personal definition of marriage. I think you might be surprised to learn that the Supreme Court of California let you down also.