Three Acts on Prop 8: I
In advance of tomorrow’s argument on Prop 8, I offer this cautionary tale. My plan for tomorrow is to “blog live” as the oral argument unfolds, at 9 am PST (noon EST).
News Item from California, November 5, 2008: “Yesterday, the voters of California approved Proposition 8, a measure that takes away the rights of gays and lesbians to marry someone of their own sex, a right that they had enjoyed since May of this year. Ron Prentice, Chairman of ProtectMarriage.com, which supported Prop 8, had this to say in celebration: “This is a great day for marriage. The people of California stood up for traditional marriage and reclaimed this great institution…. Proposition 8…doesn’t discriminate or take rights away from anyone….'”
Reader: Amen to that! “Gay marriage” isn’t even marriage..
WordInEdgewise: So the voters could have done the same thing to interracial couples and it would have been OK under the California constitution?
Reader: It’s not the same thing. The right to marry is fundamental but it only applies to opposite-sex couples.
WordInEdgewise: Really? Consider this: The California Supreme Court has held that the fundamental right to marry is meaningless if one can’t marry the person of one’s choice. It further stated that denying gays and lesbians this fundamental right violates their right to equal protection of the laws. Finally, the court stated that any law discriminating against gays and lesbians has to be subjected to the same scrutiny as laws that discriminated on the basis of race or of gender.
Reader: Well, if anything it’s a “new” fundamental right. Prop 8 doesn’t affect any other rights.
WordInEdgewise: OK, then consider whether this would be permissible:
News Item from California, 2010:“In a vote that was not as close as had been expected, the California voters once again surprised the bloggers and bloviators by easily passing a ballot measure that amended the state’s constitution to remove the rights of free speech for gays, lesbians, and bisexuals. Maggie Eddings Bryant, spokeswoman for ‘Yes on Prop 4’ celebrated the voters’ wisdom: “Speech has limits, as the voters have demonstrated. And we don’t allow pornography, fraud, or lots of other kinds of speech. Too often, ‘gay speech’ is nothing more than incitement. We need to protect the institution of speech, so that children – who are somehow forgotten in all of this – learn the right lessons about its importance. And remember that we don’t necessarily know who is gay in these metrosexual times, so there isn’t a problem as long as people don’t identify as gay. ‘Don’t ask, don’t tell’ – it isn’t just for the military any more.’”
Reader: “That’s just nutty! A fundamental right is a fundamental right, no matter who’s being singled out.”
WordInEdgewise: “Really? Can’t we say this is just a limited exception, too? And if it is, consider this:
News Item from California, 2012: “In a closely contested vote, the California voters shocked the pollsters and pundits by approving a ballot measure that amended the state’s constitution to remove the right of free speech for all men. Ernestine Bledsoe, spokeswoman for ‘Yes on Prop 1’, celebrated the decision: ‘For too long, the institution of Free Speech has been under assault from a minority promoting their own agenda of coarse speech. We needed to protect the institution of speech for future generations.’“’The No on 1’ forces were furious. Several thousand of them – mostly but not all men – marched in front of the headquarters of organizations that supported the measure. (The men were promptly arrested for exercising the right to free speech they no longer enjoyed.) Bledsoe was outraged by the protest: ‘We are at a dangerous time, when law-abiding citizens feel threatened and intimated for exercising their most precious right – to express themselves at the ballot box. What is happening to our democracy and for the basic notion of respect for opposing points of view?'”
Reader: “That’s crazy! You can’t take away a basic right that way. No court would ever put up with that.”
WordInEdgewise: “I guess it depends on whose ox is being gored.”