Friday, March 06, 2009

CA Prop. 8 oral argument post-mortem

There's plenty of note in the arguments, but here's a few of the early highlights (from this S.F. Chronicle article):

In defending the removal of a previously recognised right via "amendment", here's Ken Starr for the respondents:
"Rights are in the power of the people," said Starr, law dean at Pepperdine University and formerly the special prosecutor in the impeachment of former President Bill Clinton.
Yes, indeed. That's how our country was founded. Your rights are just what the majority (at any time) say they are. Starr opined that the (bare) majority have a right (which shouldn't be taken away) to implement their views. Under a democracy (that believes that a majority should win elections and decide propositions, rather than a minority, a dictator, or necromancy), the majority does in fact have this inherent "right" (or more accurately, advantage). The only reason for putting in actual "rights" into a constitution is to protect them from such majorities. If Starr is correct, then such "rights" as are in the constitution simply fight it out against the majority ... and the majority wins. Which makes a hollow mockery of such rights. Why bother pretending? It is arguable that this is the proper view of the California constitution, as textually read. Which would indicate that this constitution is fundamentally broken.

* * * * *
Starr also argued that Prop. 8 was a modest measure that left the rights of same-sex couples undisturbed under California's domestic-partner laws and other statutes banning discrimination based on sexual orientation.

The initiative "does not erode any of the bundle of rights that this state has very generously provided," he said, but merely "restores the traditional definition of marriage."

Several justices seemed to agree. Kennard said the voters arguably "took away the label of marriage, but ... left intact most of what this court declared," including unprecedented constitutional protections for gays and lesbians.
But these are provided by the legislature through majority vote, and they can be taken away as well (and Starr, arguing that even free speech protection could be removed from the California constitution by "amendment", can't make a principled claim that these remanent rights couldn't be taken away through similar initiative "amendment"). And if voters, by a 50.001% margin can take away one right (to the "label of marriage") this way, there's no stopping any of the other constitutional rights being removed, so saying that these remain (for now) is cold comfort.

And then there's this portion of the above, which deserves to be highlighted. Starr:
"[The initiative] does not erode any of the bundle of rights that this state has very generously provided,"....
So the state "generously provide[s] rights".... And this from the "conservative" clan, that doesn't trust gummint to do anything right....


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