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.

Another Genius!

I was amazed when I read the introductory paragraph to Jennifer Robach Morse’s Marriage and the Limits of Contract only to find my own thoughts penned two years before I ever thought of them. Sadly, as one who thinks great thoughts can make a difference, I had to humbly link to Ms. Morse’s article because she articulates these ideas so well. Here’s the URL: http://www.hoover.org/publications/policyreview/2939396.html

Supreme Deception: the Right to Deceive, Part III

Even on the surface, the idea of same-sex marriage must be either a lie or a deceit; hence, any court’s opinion that is engaged in “legalizing” such a thing must also be replete with lies or immersed in deception. In “redefining” marriage without admitting that it has done so, the Supreme Court of California’s opinion is riddled with deceptions. The California Supreme Court has masked its reduction of marriage to the mere legality that it conferred on civil unions by using the misleading terms “family relationship” and “family unit” to describe homosexual relationships and civil unions. Furthermore, the Court’s opinion use of this misleading terminology generates the appearance that previous courts' opinions and precedents support the benefits of, and state interests in, gay marriage. In fact, the opinion refers to no evidence whatsoever from previous case law or precedent that the state has either an abiding interest in, or that individuals derive substantial benefit from, gay marriage.

Whether by design or by incompetence, the Court’s opinion uses circular reasoning throughout. The opinion supposes that marriage is not between a man and a woman so that it may find an offended class and conclude that marriage, indeed, must not be only between a man and a woman. Finally, not satisfied with an opinion that is so inadequate that it deceives only the public, the Court produces several passages in which it seems to have conferred the right to deceive the public on the plaintiffs. Deceiving people is what the Court has, directly or indirectly, sanctioned by its discussion of “privacy rights” on page 105 below:

“Plaintiffs point out that one consequence of the coexistence of two parallel types of familial relationship (marriage and domestic partnerships) is that — in the numerous everyday social, employment, and governmental settings in which an individual is asked whether he or she “is married or single” — an individual who is a domestic partner and who accurately responds to the question by disclosing that status will (as a realistic matter) be disclosing his or her homosexual orientation, even if he or she would rather not do so under the circumstances and even if that information is totally irrelevant in the setting in question.”

The opinion of the majority in “re Marriages” explains that disclosing one’s sexual orientation is protected under a right to privacy, but the Court’s resolution of the issue should not be to sanction intentional deception as a remedy. Under this court’s ruling same sex couples may mislead an employer, whether it is a government office or a private enterprise, by leading individuals to believe that their status is heterosexual. That is, they may rest assured that when they say they are married , their employer or insurance company will understand the ordinary sense of the word and assume they are heterosexual. Doesn’t the state have an interest in deploring all acts of deception, especially as it relates to its own offices? Instead, this court has sanctioned the deceptions and provided the means of deception. Is deception, then, simply a matter of course and necessity to the California Supreme Court? Shall we consider this evidence of the intention of the court itself to deceive the public with its ruling and its opinion? Doesn't it seem that the court recognizes that the high end of “equality” justifies deception? Should we assume that the Court itself with its high view of equality and equity felt that, for itself too, deception as practically necessary is a dogma worthy of application? If we should so decide, fellow Californians, what then should we do? You know very well what you must do. You must recall these judges.

Nor is the foregoing deception seemingly advocated by the Court without potentially serious implications for insurance, credit, and medical institutions. Although the court recognized that some of these requests for information are not relevant, the discretion on when to deceive seems to be entirely in the hands of a member of a same sex partnership.

Some may argue that the destruction of the word marriage and its meaning would result in “marriage” would no longer implying heterosexuality. Hence, there would be no deception. However, until the process of reconstructing documents in which one’s sexual orientation is necessary information and, instance by instance, allowing courts to decide upon this necessity, many instances of deception on important matters will have been perpetrated and seemingly sanctioned by this Court.

Nor is such deception a necessary instrument for achieving equality in the United States of America. No one can seriously imagine women seeking equal opportunity being able to get away with bubbling in "man" on their employment applications. No, in order to equalize the playing field women proudly declared their gender and insisted on access. Likewise, African Americans proudly declared their identities as they demanded the equal rights they were entitled to under the law.

Perhaps religions have had the "option" of “going public” with their beliefs through the years. Notice how well that has gone? The religions such as Islam that state their creeds by their apparel and their deeds have a far greater opportunity for recognition and accommodation under U.S. Laws than do the more timid believers who obey court and statute despite the outcry of their consciences. Secrecy is no ally of civil rights. Not only does the Court appear to confer the right to deceive on a special segment of the population, it undermines the very equality is seeks to establish. The gay community ought to rise up and vote “yes” on California’s proposition 8, not only so they are not embarrassed by being part of a ruling that must go down in infamy, but so that their own movement for equal rights and recognition is not undermined by legally sanctioned duplicities.

On page 117-118 the Court issues a pronouncement that, essentially, concedes the right to deceive to all same sex couples in California while, at the same time, insisting that all citizens of the state of California who have direct dealings with the state government perpetrate deception on others:

“As discussed above, (page 81) because of the long and celebrated history of the term ‘marriage’ and the widespread understanding that this word describes a family relationship (my italics) unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples.”

First of all, the word marriage does not refer to the commonly understood words “family relationship.” The new terminology introduced by the George court names marriage a “family relationship.” In the same way that a cursory reading of this ruling and an assumption of judiciary accuracy with language might mislead a reader, the use of the term “marriage” for same sex couples has the potential for misleading many citizens of the state and the nation. The problem is that, if nothing else, same sex civil unions are very novel, and indeed they are an alternate relationship relative to that of traditional marriage. Novel and alternative are not pejoratives, nor should anyone expect them to be.

By the courts own admission, by its stated design, the venerable history of marriage will be conferred, naturally, on same sex couples. However, that is deceptive precisely because same sex unions have no history at all. The application of the commonly understood word to marriage to same sex couples is, therefore misleading and deceptive. Even if there is a tradition of prejudice towards gay couples, prejudice in every other area of American life is not overcome by way of deception. Prejudice is overcome by being who we are, and by proving, with the equal opportunities we are granted, that hurtful prejudgments are no more than the products of ignorance.

Marriage has a long and celebrated history and has been widely sanctioned in every community in history (even if not always faithfully adhered to!) because of what it is. The use of the word “marriage” in California is now new, controversial, and alternate from every other known use of the word for 6,000 years of recorded history. Let us as Californians be clear about this: marriage in California now, under the ruling of the George court, no longer means “marriage.” If you think it does, you are deceived. If after reading this series of articles you are deceived, then you are deceiving yourself. However, when state employees, whether they be doctors, nurses, lawyers, teachers, policemen, or firemen say “marriage,” the common understanding of marriage will come to the mind of the hearers. Government employees everywhere may be directed to say “marriage” with the intended new meaning concocted by this court; however, those that hear what they say will not necessarily understand what is meant. Indeed, who really can understand this definition of marriage as a “family relationship” given meaning through a concoction of legal rights pulled from a seascape of irrelevant references?

The entire progress of this Court’s legislation, and it is certainly that, and its explanations are immersed in deception. It is by this means that it seeks to persuade us of its equanimity in making us its partners in its deceptions. Whether these deceptions are accidental or intended, we will all be employed in them. This court's ruling, whether by incompetence or by malice, evinces a design to reduce us under an absolute despotism of the state. It demands that we ourselves become the instruments of deception. The state can stand in no greater tyranny to its subjects than that it demand them to dissemble in order to comply with its dictates.

On page 8 of this opinion, Judge George wrote,

“We need not decide in this case whether the name ‘marriage’ is invariably a core element of the state constitutional right to marry so that the state would violate a couple’s constitutional right even if — perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage — the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples.”

This is incorrect. If the opinion of this court is that marriage is no longer marriage and that one new institution is fitting for all, then let the Court proudly proclaim this! Instead, this court lets stand a document that rids California of marriage entirely without even the slightest acknowledgment of its radicalism. The Court seems to embrace deception for a remedy to the plaintiffs claims of privacy and its ruling encourages the deception of the entire state by insisting that government officials use a new, and impossibly complex and incoherent legal definition in communicating with children and minors about marriage.

Oh... no adults would be lying to children… Oh, no… And fear not California, your little children will not be deceived. No, even they know what marriage is. Instead, they will assume that policemen, firemen, teachers, doctors and nurses are cowardly liars or deluded morons. Good work Chief Justice George, and let us give thanks to all those members of the court that concurred.

Supreme Deception: the Evidence, Part II

A marriage is not a family and to call it one is a lie. A family always involves children. For the Supreme Court to continue to call a same sex relationship a “family unit” is extraordinarily deceptive because no family can ever occur as a result of a same sex relationship. This deceptive legal jargon has entered California jurisprudence during the period of time in which Judge George has been the Supreme Court’s Chief Justice. In 2005 the majority opinion in Kobke vs. Bernardo Club Country Club, uses the terms “family unit” and “domestic partnership” synonymously. What is new in the court’s jargon in “re Marriages” (May 2008) is the Chief Justice’s wider use of “family relationship” to mean “marriage” or “domestic partnership” (pages 65-66). All of this is in keeping with the Court’s open refusal to recognize marriage in the state of California. Marriage is not a “family relationship,” whatever that is supposed to mean. Marriage is not a “family unit” and never has been. Further, in the corrupt jargon of the state of California it is even more assuredly not a “family unit” or, in other words, a domestic partnership.

Californians are deceived if they think that marriage currently exists in their law as that law has now been defined by Chief Justice George and the Supreme Court of California. The definition of marriage has not been expanded to include domestic partnerships. Instead, the definition of marriage has been contracted and dehumanized. To the Supreme Court of California marriage is a mere patchwork of rights conferred on two people by the legislature and the courts. Marriage results in husbands and wives, not “Party A’s” and “Party B’s.” To cite Perez vs. The State of California, “Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men” (p. 714). Likewise also in Williams v. Garcetti, the Supreme Court at that time stated: “… we have already recognized that ‘[t]he concept of personal liberties and fundamental human rights entitled to protection against overbroad intrusion or regulation by government [such as defining marriage as merely the rights conferred by government] ... extends to . . . such basic civil liberties and rights not listed in the Constitution [as] the right to marry, establish a home and bring up children… (page 577, brackets and italics added).”

None of this, however, fully describes the patterns deception perpetrated on the public by the Supreme Court of California in “re Marriages.” The majority opinion authored by Judge George is deceptive when it refers to other cases of precedent on the importance of “family relationships.” The Chief Justice refers to cases of precedent written before 2003 as evidence that supports the importance of “family relationships” as defined by the court in 2005 and 2008. For instance, on page 54, Judge George notes that

“…subsequent California decisions discussing the nature of marriage and the right to marry have recognized repeatedly the linkage between marriage, establishing a home, and raising children in identifying civil marriage as the means available to an individual to establish, with a loved one of his or her choice, an officially recognized family relationship” (Italics added).

Domestic partnerships are not what the case he cites, DeBurgh v. DeBurgh (1952), was about at all. Continuing on Judge George stated,

“…for example, in explaining ‘the public interest in the institution of marriage’ (id. at p. 863), this court (in Deburgh…) stated: “The family is the basic unit of our society, the center of the personal affections that ennoble and enrich human life. It channels biological drives that might otherwise become socially destructive; it ensures the care and education of children in a stable environment; it establishes continuity from one generation to another; it nurtures and develops the individual initiative that distinguishes a free people. Since the family is the core of our society, the law seeks to foster and preserve marriage.” (Id. at pp. 863-864.)

In his citation of DeBurgh v. DeBurgh Chief Justice George makes it sound as though this court referred to marriage as a family relationship. It never did. In 1952 marriage was marriage and a family was a family. Additionally, in order to utilize this quote about domestic partnerships, the judge must assume first that marriage is not between a man and a woman. However, George blurs this very important distinction rather than obviate it. He does this by using the jargon concocted under his rule as Chief Justice.

Similarly, throughout the section in which he notes past decisions about marriage in order to catalog the importance and rights of marriage (53-66), he assumes that each right or benefit of marriage from old precedents can be assigned to any legalized relationship between two people. On page 66 the judge concluded,

“It is true, of course, that as an historical matter in this state marriage always has been limited to a union between a man and a woman. Hence, the foregoing thirteen pages of supposed evidence are entirely irrelevant. Tradition alone, however, generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right.”

The italicized words are my addition. These words should have been added by Judge George, all the more because he concludes that this was all the traffic of mere tradition. Moreover, his conclusion that all of the rights attributed to marriage were based on no more than tradition is itself misleading. The references were observations justices made in specific instances; they were not observations about historic tradition. Finally, although no evidence was presented that same sex couples gain any of the benefits mentioned by the authorities referred to, nor that the state has any interest at all in same sex unions, the court behaves as though it has listed thirteen pages of evidence proving both the interest of the state and the benefit to individuals of same sex unions. This is misleading and deceptive. The Court should plainly admit that it is rewriting the definition of marriage in a way it sees fit and cease attempting to persuade Californians that this has anything whatsoever to do with previous case law.

The court would lead us to believe that the references to families as the building blocks of society are directly related to the civil institutions designated by governments. The court would have us believe that a same sex couple is a building block of society, just as these famed jurists of the past declared was the case with married couples and their children. This equation is at least, open to discussion.

While we can conceive of marriages and children leading to societies and governments, we cannot see same sex unions leading to the existence of nations states. Indeed, the existence of children in a same sex union is, like a school, inconceivable without the good graces of the society at large. This is a matter for legislation, not for courts. The people of California are under no genuine constitutional compulsion to submit children who are wards of the state for adoption to same sex couples. In California the people have legislated that such adoption is acceptable. Considering the incompetence of state agencies in every aspect of public and private life, perhaps the wisdom of the people of California is to be applauded.

In Part III of “Supreme Deception: the Right to Deceive” the court’s explanation of privacy rights and same sex marriage will be probed.

Marriage is Not a School

So argues the majority of justices in the ruling of the Supreme Court of California on pages 103-104 in “re: Marriages…”:

“In this regard, plaintiffs (those same sex couples seeking marriage licenses) persuasively invoke by analogy the decisions of the United States Supreme Court finding inadequate a state’s creation of a separate law school for Black students rather than granting such students access to the University of Texas Law School (Sweatt v. Painter (1950) 339 U.S. 629, 634),67 and a state’s founding of a separate military program for women rather than admitting women to the Virginia Military Institute (United States v. Virginia (1996) 518 U.S. 515, 555-556).”

Marriage is an education, but it is not a school. Unlike the equal access to an education, the only equal access to marriage is that which is duly clothed in commitment and free choice. Schools on the other hand, are primarily about the access men and women have to the opportunities provided by society at large. This Court errs grievously by comparing what a marriage is primarily to what a school, a public school no less, primarily, is.

Schools are primarily social in function. Teaching may be more fundamental to human life in the context of a family, but a school by definition is social. Marriage, in contrast, is a very specific and complete access to another person based solely on the commitments and choices of those two individuals. One can easily conceive of marriage as a fundamental building block of society and, therefore, as a liberty, prior to society and its governments. This is impossible in envisioning a school, especially a public school. The caricature of marriage that emerges from the Court’s attempt to draw parallels between these two unlike institutions is grotesque and offensive. The Court again degrades all humanity by arguing that what we are as people exists, like a school, primarily because of the good graces of government.

What is absurd on its face reveals greater errors in its specifics. The Court also erred in the arcane reasoning it based upon its grotesque analogy. Here is more from pages 103-104:

“As plaintiffs maintain, these high court decisions (Texas Law School and Virginia Military School) demonstrate that even when the state grants ostensibly equal benefits to a previously excluded class (a class that had been denied access, not because of their abilities, but a history of prejudice) through the creation of a new institution, the intangible symbolic differences that remain often are constitutionally significant.”

The two high court decisions alluded to are fine, but their analogy to marriage is ridiculous. No one can blame the plaintiffs for arguing it; that’s what a decent lawyer is supposed to do. However, the idea that the Supreme Court accepted this analogy is both hilarious and tragic. It’s tragic because it is a true reflection of what we have become as a society. Nothing in our public life matters. Anything goes. Judges should know better, but who really cares? Here are the differences that make the analogy of marriages and schools, let’s just say, inadequate:

The ability to marry comes from what we are as people, male and female, more than it is about who we are as people. This is also true of other essential human liberties. Because of what we are as people, we can speak. What we say determines “who we are,” or what kind of person we are. We also have the freedom to worship. This is part of the nature of what we are as people. Who we worship determines who we are as people. The content of one’s character doesn’t enter into the ability to have access to marriage, or more specifically, the access which is marriage.

Unlike the analogies at Virginia Tech., and, we hope, to the public high school at issue in Brown vs. The Board of Education, meeting certain qualifications (passing examinations, excelling at one’s coursework) has nothing to do with the right to marry. Hence, when the Court says these two people meet the qualifications we (the Court) set as those necessary to be “married” (they are of the correct age, they can form informed consent, etc), they cannot say that, therefore, these two must have equal access to marriage. Two people cannot merit marriage. Hence, what one merits is not being withheld by society because of prejudice. How two people behave once they are married determines whether or not the marriage has merit. If this is a civil rights case, it is not a civil rights case that is related to the decisions in Brown vs. the Board of Education, Virginia Tech., or the Texas Law School. Marriage is not a school.

Indeed, if it is a civil rights case, then it is far more analogous to the equal access granted or denied women, as women. Oddly, this is the analogy the Court, in footnote 65, decided did not merit consideration.

“For example, the establishment and maintenance of separate women’s collegiate athletic teams to address the long-standing discrimination against women in the allocation of athletic resources has been found to be constitutionally valid. (See, e.g., O’Connor v. Board of Education of School Dist…”

In these cases, the discussion came down not to an unwillingness to recognize the abilities of women to excel in sports. These cases weren’t about denying women the access that they merited simply because of a prejudice against gender itself. All agreed that merit existed and access was deserved. Instead, the issues in these cases came down to problems of access posed by the problems that exist by virtue of what we are as men and women. In civil rights cases of this type, merit and prejudice are not the issue. Instead, we are nonetheless confronted by what we are as people, male and female. Any disregard of who we are as people would have resulted, in these instances, in an injustice to all.

Same sex marriage is not a civil rights issue relating to race, since homosexuality is not a race. Same sex marriage is not a civil rights issue related to religion because it is not a religion. Nor is same sex marriage a civil rights case based on gender for homosexuality is not gender specific. However, if same sex marriage is a civil rights issue, there are cases of resolving inequity in access to society’s benefits that arise for other reasons. However, bringing these analogies up might be offensive to some. Nevertheless, the Supreme Court of California erred: marriage is not a school.

Why Log Cabin Republicans Should Vote "yes" on Proposition 8

A recent, articulate, and well thought through article by George Stienburg (July 12) argues that Proposition 8, the California amendment initiative saying that marriage is between a man and a woman, will not succeed on the November ballot. In his article "Why Prop. 8 is a losing proposition," Stienburg explains that voting against "Gay Marriage" rather than voting for "Marriage" will cause nice people to vote "no" on Proposition 8. He also notes a number of other disadvantages that Proposition 8 faces in November, including the pull of the general election on the numbers of people who show up.

Mr. Stienburg may have miscalculated. Many originally argued that Proposition 22 was an unnecessary measure. Although they may have been correct because California law already makes plain that marriage is between a man and a woman, the willingness to overturn a measure passed by a vast majority of California voters has exposed the California Supreme Court. This court is now widely seen as tyrannical and lawless. It knows no boundaries; it is callus to the very human institutions and rights it is sworn to uphold. The electorate may not be as religious about the pontifications of the left as many hope. Despite their feelings about, in general, being good sports, despite their willingness to "live and let live," they will surely see that this court has gone too far. It is the electorate themselves who are now the oppressed. What must the people of California do to have a voice in the laws of their own state? Perhaps they know now... I imagine they have an idea.

However, I'll bet the Supreme Court of California know how exposed it is as well. Will they willingly let the unwashed mass of the tax-paying (and non-taxpaying) citizens tell them what to do? I doubt it. If there is one more honest person on that court, all will be well. We'll be able to test Stienberg's theories, and we will see.

However, if Log Cabin Republicans have any pull with this court, it would be well advised to support Proposition 8 making it on the ballot. An appeal to the U.S. Courts on denial of due process might be interesting. Likewise, Log Cabin Republicans would do well to tell all the courts that the laws of this land are more important to them than single issues. They should vote for Proposition and campaign for and with all who support the ballot amendment. The laws of our land protect us all. The will of court, like the will of all bullies and tyrants, is unpredictable, violent and severe. Send a message Log Cabin Republicans. Tell Californians, citizens who have supported diversity with generous civil union laws, and tell every American that you are the real deal. Join us in keeping the theocracy of the golden gavel and the pontifications of the priests of "fairness" from rewriting our constitution and every other aspect of our laws.