Sunday, November 16, 2008


Yesterday, Saturday November 15, a coordinated National effort was made to hold protests at city halls within every city to protest the passage of the discriminatory Proposition 8 in California, as well as the lack of equal rights for LGBT people.

It may well be that the passage of Proposition 8 in California was a blessing in disguise, as it tragically hammered home to otherwise relatively complacent people that their civil rights have not only been denied; they are viewed as people who are not deserving of equality; they have been rebuked by "friends," neighbors, and others in a way that unmistakably slaps them in the face with the reality that they are second class citizens, even in an era that elected our first Black President (who has had more threats of assassination than any other President Elect in our history).

Moreover, although I'm not an attorney, I'm cautiously optimistic that the California Supreme Court will nullify the vote on Prop. 8 for the following reasons:

1. The reason the Founding Fathers did not make the U.S. a "Democracy" but made it a "Democratic Republic" is because they were very much concerned that there would otherwise be a "tyranny of the majority."

2. In our Democratic Republic there is a separation of powers where it is the Judiciary's task to adjudicate the constitutionality of matters brought before it.

3. If a Supreme Court can rule a practice to be unconstitutional and then there is allowed to stand a vote of a majority of people that overrides that ruling, the basic fundamentals of our Democratic Republic are violated, and the need for a Supreme Court is summarily erased.

4. If such a precedent is set that allows a majority vote to trump a Supreme Court's ruling that a given practice is, and always has been, unconstitutional, the civil rights of every minority group is both up for grabs and will exist, until further notice, at the whim of a majority vote at the ballot box.

The Founding Fathers, having incorporated the thinking of such disparate philosophers as Jean-Jacques Rousseau, who thought that human beings were basically good and that it was society that corrupted them, and Thomas Hobbes, who believed that people were basically mean, brutish, and selfish, were very leery of having the United States become a simple Democracy.

Rather, they wanted its citizens to be able to elect their own leaders who would represent them; have a separation of powers into the three branches of government: the Executive, the Legislative, and the Judicial; have a Judiciary that would adjudicate once and for all any Constitutional issues that were raised, and to be final arbiters of the interpretation of the Constitution in matters that came before that body.

The California Supreme Court is now faced with a decision as to whether or not to contravene the whole structure of our Democratic Republic, allowing a simple majority vote of the people to override a Supreme Court's ruling as to the unconstitutionality of forbidding same-sex marriage, and allowing a minority group's civil rights to be abridged by a vote of the electorate. In other words, the Court is faced with the decision as to whether or not, once it rules that a practice is, and always was, unconstitutional, can the voters override that decision that has hitherto been within the purview of that Court.

Given these and undoubtedly other legal issues, helped by the Nationwide demonstrations yesterday, as well as the California Legislature's vote on two different occasions that same-sex marriage be allowed in California, I am cautiously optimistic that the vote on Proposition 8 will not be allowed to stand by the California Supreme Court.

In any case, the issue isn't "if" same-sex marriage will be legal in California, but "when" it will be legal, not only in California, Massachusetts, and Connecticut, but in every other single state of the Union! Of that fact, I have absolutely no doubt!

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Anonymous said...

Speaking of courts, do you think the gay marriage issue will ultimately end up in the US Supreme Court? Even if Prop 8 is invalidated (hopefully)I think 28 other states, including my own South Carolina, have amended their constitutions to include bigotry.

Jerry Maneker said...

Hi Kiara: I really do think it will eventually have to be adjudicated at the U.S. Supreme Court level so that equal rights can be done nationwide, rather than incrementally in some states.

Also, I'm optimistic that it would be judged in our favor, in that except for the justices blinded with prejudices, such as Scalia and maybe even Thomas, even conservative Jurists will have to see the unconstitutionality of the "separate but equal" lie that was overturned in 1954 in Brown v. Board of Education.

What seems to me to be unique in the California case is that its Supreme Court already ruled that preventing same-sex marriage is unconstitutional, so that they are now in the position of allowing the voters to override its decision regarding the constitutionality of this issue or maintaining the integrity of the Court as being the final arbiter of what is and what is not Constitutional.

This is why I'm cautiously optimistic that the vote affirming Prop. 8 will not be allowed to stand, and why in the future the U.S. Supreme Court will be likely to decide in the same way, using the same criteria as defined in the Separation of Powers that assigns the Judiciary the final word on Constitutional interpretation.

They don't want another Dredd Scott or Plessy v. Ferguson fiasco that the Brown v. Board of Education decision in 1954 overturned. Best wishes, Jerry.