Tuesday, May 26, 2009

The decision

Admittedly I haven't read every page carefully, and I don't completely grasp it all. But from what I have read and understood, it sounds like the majority's opinion turned on the question of whether or not Proposition 8 could be defined as a constitutional revision or a constitutional amendment.

[A] revision is a more substantial or extensive change, an amendment a less substantial or extensive one. (J. Werdegar)

Apparently, an amendment needs only the approval of the majority of the population, while a revision requires approval by two-thirds of each state house, followed by a majority vote.

The Supreme Court's majority opinion determined that a revision is defined as making "a fundamental change in the nature of the governmental plan or framework established by the Constitution." And, they reason, even though Prop. 8 has deprived individuals of some measure of their constitutional rights, there is apparently precedent in cases where constitutional amendments have deprived individuals of their constitutional rights, such as protection against cruel and unusual punishment (Frierson) and protection against unlawful searches and seizures (Lance W). Nevertheless, since these instances of the curtailing of constitutional rights did not result in "a fundamental change in the nature of the governmental plan or framework established by the Constitution," they cannot be categorized as "revision."

That, at least, is what I got out of this quote by George in the majority opinion:

As we have seen, a number of our past amendment/revision decisions have involved initiative measures that made very important substantive changes in fundamental state constitutional principles such as the right not to be subjected to cruel or unusual punishment (Frierson, supra, 25 Cal.3d 142) and the right to be protected against unlawful searches and seizures (Lance W., supra, 37 Cal.3d 873) — initiative measures that, like the current Proposition 8, cut back on the greater level of protection afforded by preceding court decisions and were challenged as constitutional revisions on the ground that the constitutional changes they effected deprived individuals of important state constitutional protections they previously enjoyed and left courts unable to fully protect such rights. Nonetheless, in each case this court did not undertake an evaluation of the relative importance of the constitutional right at issue or the degree to which the protection of that right had been diminished, but instead held that the measure did not amount to a qualitative revision because it did not make a fundamental change in the nature of the governmental plan or framework established by the Constitution.

My question is: Really? So, it would be okay for the majority of Californians to vote to cut back on the rights of Catholics or African Americans or women, as long as we deprive those groups of only some measure of their constitutional rights, and as long as we don't make fundamental changes in the "governmental plan or framework established by the Constitution"--whatever that means?

The minority opinion by Moreno indicates that George's majority opinion may contain more than a little b.s.:

The majority’s reliance upon the lead opinion in People v. Frierson (1979) 25 Cal.3d 142 (Frierson) is also misguided. That opinion stated the view of only three justices that the 1972 initiative measure that added a provision to the California Constitution stating that the death penalty did not constitute cruel or unusual punishment amended, rather than revised, the Constitution. Each of the remaining justices made it abundantly clear that they either declined to address this issue or disagreed with the lead opinion. Nevertheless, the majority treats the lead opinion as if it were a majority opinion, referring to it as “[o]ur opinion” (maj. opn., ante, at p. 69), and incorrectly referring to the lead opinion to describe what “the court concluded” (id. at p. 88).

In other words, Moreno says in the Frierson case, George is trying to pass off the "it's okay to curtail some of the constitutional rights of individuals and still call that 'amending' and not 'revising' the Constitution" rationale as if it had been the majority opinion of the Court. In truth, it was just the lead opinion representing only three justices. The other four justices did not support it.

Hmm. Makes me wonder what other "problems" exist in the majority report that I as a layperson don't have the legal education to discern?

The more I read of Moreno's dissenting minority opinion, the more I see the fog starting to clear. Moreno discusses the original purpose behind the idea of a constitutional amendment, that it was a way to prevent powerful minorities from getting their way, and was not meant to deprive persecuted minorities of their rights.

Although this initiative process was thereby instituted as a remedy for government corruption, and to free legislation from the influence of powerful special interests and the Legislature’s own self-serving inertia, there is no indication that this process was intended to prevent courts from performing their traditional constitutional function of protecting persecuted minorities from the majority will. There is a fundamental difference between preventing politically powerful minorities from unduly influencing legislative and judicial decisions on the one hand, and preventing courts from protecting the rights of disfavored minorities unable to obtain equal rights through the usual majoritarian processes on the other. There is no indication that the Progressives who framed the initiative process were insensible to that distinction, or that they sought to abolish the judiciary’s role as the guardian of minorities’ fundamental rights.

Moreno argues that there is no precedent for restricting the scope of the equal protection clause by mere constitutional amendment, or for placing the protection of equal rights into the hands of the electoral majority instead of the judiciary by mere amendment:

None of our prior cases considered whether an amendment to the Constitution could restrict the scope of the equal protection clause by adding language that requires discrimination based upon a suspect classification. Nor did these cases consider, as in the present situation, whether a transfer of the authority to protect the equal rights of a suspect class away from the judiciary to an electoral majority is the type of structural change that can be effected by a constitutional amendment. For the reasons discussed above, I believe this kind of change in the countermajoritarian nature of the equal protection clause is the type of fundamental alteration that can be done only through a constitutional revision.

Moreno's conclusion is that in order to make the changes advocated by Prop. 8, we would need a constitutional revision that says the equal protection clause should be modified to protect just some folks and not others (anyone for that idea?):

In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.

Proposition 8 stands

The CA Supreme Court has upheld Proposition 8 by a decision of 6-1, but is allowing the 18,000 gay couples who wed last year to stay legally married. Their rationale is that voters have the right to change their State Constitution.

"In a sense, petitioners' and the attorney general's complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it," the ruling said.

Let me remind you what provided the basis for the voters' decision to change the State Constitution. I quote from the pro-Prop. 8 mailers I received last year:

"Same-sex marriage threatens tax exempt status of churches."

"Gay marriage WILL be taught in California public schools if we don't pass Proposition 8."

"First Graders Taken to San Franscisco City Hall for Gay Wedding."

See here, here and here for my blog posts exposing how grossly misleading these claims were.

Now the Supreme Court is knocking the ball back into the court of "the people's will." Never mind that the basis upon which that will was determined was the twisting of facts that played to people's fears and prejudices. Incredible.

Monday, May 25, 2009

Decision Day tomorrow

Word is that the California Supreme Court will issue an opinion on the constitutionality of Proposition 8 at 10 a.m. tomorrow.

I can't tell what their opinion will be. But I'd be interested to know how this Supreme Court could get out of upholding their ruling last year in favor of same-sex marriage. The California legislature had already voted to grant gay couples full marriage rights twice, and the Supreme Court simply determined that there was no constitutional justification for withholding the label "marriage" from such couples.

In spite of this relatively conservative ruling--six out of the seven Supreme Court justices were appointed by Republican governors--the Christian Right has not ceased decry the ruling as "judicial activism." Unfortunately, the Christian Right often finds itself in the situation of being the black pot trying to call the silver kettle black. There is nothing activistic about looking at the State Constitution and determining that marriage rights should be granted to that small minority of the population for whom the full meaning of "marriage" can only make sense within the context of a loving, committed same-sex union. If gay couples have no legal right to same-sex marriage, it would be the same as barring them from their constitutional right to marry at all.

On the other hand, the charge of "activism" is completely fitting for the pro-Proposition 8 campaign we witnessed last summer, where the primary argument the Christian Right gave us was, essentially, "THEY'RE AFTER YOUR CHILDREN AND YOUR CHURCHES!"

If the California Supreme Court does reverse their ruling from last year, I have to wonder what justification they could give, since the pro-Prop. 8 campaign offered no legally useful arguments. "Horror Tales From Massachusetts" may be effective in scaring the general public, but a Supreme Court Justice has to make a rational decision.

Wednesday, May 13, 2009

Finding Jesus Christ: The only way to heaven?

Click here for an explanation about this series: "Finding Jesus Christ."

One of the most common objections to Christianity out there is that its exclusive claims are offensive. I often hear people say that Christians who claim that Jesus Christ is the only way to heaven are arrogant, narrow and judgmental. How can you say that your religion alone teaches the truth about God? How can you say that none of the other religions teaches the true way to heaven?

I'm not sure why everyone is so upset. A better approach would be to be grateful that the Christian religion has conveniently boiled everything down to one key issue in such stark terms. Life is short, and there are so many religions to investigate. To figure out the other religions you may find yourself crawling on your knees in a pilgrimage to some holy city, or spending ten years in a monastery with a shaved head. But with Christianity if you have a Bible, the ability to read, a brutally honest heart, and the willingness to utter an occasional prayer for guidance, you can get right down to it.

The question you need to investigate is: Do you need Jesus Christ to go to heaven, or not? Whatever conclusion you come to--whether yes or no--will determine whether or not you should become a Christian.

As you investigate by reading about the life and teachings of Jesus in the New Testament, you will discover that Jesus' claim to be the exclusive way to heaven ("I am the way, the truth and the life; no one comes to the Father except through me."--John 14:6) is actually one of the milder statements he made. He claimed not only to be sent from God, but to be the revelation of God himself (John 14:8-9). He claimed to have existed from eternity past (John 8:57). He claimed that someday he would raise all the dead from their graves and pronounce judgment upon the eternal fate of every human being who has ever lived (John 5:25-29). He said, "I and the Father are one" (John 10:30). So, as you can see, Jesus' claim to be the exclusive way to God is simply the logical outworking of all these other claims he made about himself as the unique, authoritative, divine Son of God, who came from heaven to tell us in no uncertain terms what his Father demands of us.

If there were such thing as the Truth about God, and if there were such thing as a religion that taught the Truth about him, you wouldn't expect that religion to be apologetic about it, would you? I'm not saying that all religions claiming to be the truth should be taken seriously. But certainly, you wouldn't expect the Truth to shrug its shoulders, wave its hands helplessly in the air, and whine out catch phrases like, "Let's be modest now. Let's not hurt people's feelings. Can't we all just get along?" If the Truth is really out there, is this how you'd expect it to present itself?

Jesus expected his followers to take their quest for the Truth seriously. He constantly said things that stumbled them, offended their sensibilities and hurt their feelings. Maybe nowadays people think that seeking God is like drinking a warm glass of milk and drifting off to sleep in a featherbed. But back in Jesus' day people had a firmer grasp on reality. They understood that if you dared to seek out the living God, you ran the risk of having your world turned upside-down.

Tuesday, May 12, 2009

In-house debate

Alan Ng gives some excellent conservative Christian responses to a reader's objections against gay civil marriage.

I’m assuming we’re both Christians. We both believe Jesus is God and died for our sins. We both believe the Bible is the Word of God. If this is true, then we believe that God is Omnipotent. If this is true, then no matter how the country defines the American Family, my God is still bigger than that and that God’s people and His church will never be marginalized. If you feel that your ability to live a Christian life is be harder, than your God is smaller than He really is.

You can read more of the exchange in this follow-up post.

Thursday, May 07, 2009

"Homosexual Christian"

I've been puzzling over the latest bandwagon evangelicals have been jumping on in criticizing the term "homosexual Christian." The phenomenon has been around for some years, but it seems to have picked up steam lately, especially in the more conservative evangelical crowds. "I don't call myself a Proud Christian or a Lustful Christian. Why should you call yourself a "Homosexual Christian"? they will say to fellow Christians who disclose their struggles with homosexuality.

My question in return is, "So, what should they call themselves?" I'm sure they would be happy to call themselves regular old "Christians" with no qualifications attached. The problem is when they remain silent on the "qualification" part, no one suspects they are homosexual, right? Then when they finally take the chance of revealing to their Christian friends that they have actually been dealing with homosexual feelings and attractions all along, everyone wigs out. There is no end to the accusations about how this person "lied" and "deceived" everyone, or to the hand-wringing about how "betrayed" everyone feels for thinking all along that this person was just like everyone else. That they were just a "Christian" with no qualifications attached.

Well, guess what? Homosexual people have feelings, and they also have a conscience. They don't want to be accused of lying and deceiving people. They don't want to feel like they've betrayed friends and family members. They've heard all the complaints. That's why more people are trying to be upfront about what they are dealing with. Calling oneself a "homosexual Christian" is a good, honest way to signal to everyone that no lying, deception or betrayal is intended on their part. But instead of receiving an appreciative, "Thanks for letting me know. I know it must have been hard for you to tell me this," they get shot down with, "Why would you call yourself that?" "Why would you label yourself according to your sin?"

I can only think of two reasons why anyone would make that objection. 1) You don't really want to know that a fellow Christian is dealing with homosexuality. 2) You want people who are dealing with homosexuality to say that, really, they are just heterosexuals who have somehow messed themselves up, but now they're on it, and if we would just give them a few more years in the local ex-gay program they can come back to us with all the yuckiness cleaned up--in which case they should never have bothered to take on the label "homosexual Christian" in the first place.

If your reason is the first one, then you're saying that you'd rather be lied to and deceived. So be honest about that and spare us all the lamenting about how "betrayed" you feel when someone does manage to deceive you for years on end, but was ultimately too honest to be able to keep it up forever.

If your reason is the second, then you're saying that homosexual people who claim that they have tried to change but couldn't are either liars or they are self-deceived. They should be able to overcome their sin, but they are somehow holding back and are only pretending that they've been putting out a monumental effort. But really, they like to call themselves "homosexual," especially in front of their Christian friends, because it's just so cool to come to church and have everyone glare at them and whisk their kids out of the very path they walk. And it's just so cool to know that even the "brave" people who do come up to shake their hand probably rush to the restroom afterwards and wash. Yeah, that must be the real reason why someone would want to call themselves "homosexual" at church. There are just so many perks.