The California Supreme Court amended the state’s constitution to find a right for homosexual marriage. Then the people of California used the same constitution for an initiative to define marriage in the constitution as between one man and one woman. Having lost that vote, the ACLU has attacked again, demanding that the courts again overrule the sovereign people and again force the issue on the people.
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The facts for this analysis, but not the legal conclusions, come from an article in the Los Angeles Times on 6 November, 2008. California voters approved Proposition 8, placing the historical definition of marriage as consisting of one man plus one woman into the state’s Constitution. Then the ACLU and several other “civil rights” groups filed suit asking California courts to throw out the new provision in the Constitution.
In addition to the Southern California ACLU, the other organizations filing three separate cases in state court are “gay rights” organizations. Interestingly, most of the articles on these cases in a Google news search are in alternative newspapers, and papers published for homosexual readers. The cases all claim that Proposition 8 was a “constitutional revision” under California law, rather than a “constitutional amendment.” The former, unlike the latter, are required to go through the legislature before going to the people for a vote.
The tactic is reminiscent to Massachusetts, where the Supreme Judicial Court (the commonwealth’s Supreme Court) by a one-vote margin, established the “right” to homosexual marriage by judicial fiat. Opponents then petitioned for an initiative to reassert popular control of Massachusetts marital law. However in that commonwealth, ALL initiatives go to the legislature first before the people get any chance to vote. So far, the legislature has prevented any vote on the matter in Massachusetts, where the process of court-ordered homosexual marriage began.
Through these law suits in California, those who favor homosexual marriage seek two results. The immediate one is to obtain yet another court order which throws out an initiative decision to overrule either a law or a court decision, by filing sufficient signatures and then winning the popular vote that follows. The second result is to impose an additional barrier in the initiative process, so that a legislature which is afraid of the issue will stand between the people and their right to the initiative.
The history of this issue in California shows the people approved a prior initiative which wrote into the state’s law the definition of marriage as consisting of one man and one woman. The California Supreme Court, by a one-vote margin, declared that unconstitutional. Furthermore, the Court knew when it issued its decision that Proposition 8 would probably make the ballot and be up for a vote. The Court ran away from the pending decision by the sovereign voters and refused to stay the effects of its decision until after the election.
According to the article, those attacking Proposition 8 have made a policy judgment not to file any of these cases in federal court on the grounds that federal courts are less likely to accept homosexual marriage as a civil right under the federal Constitution. A bad result in the US Supreme Court would cripple the issue in all states at once.
These are the groups and interests who have brought these three cases: ACLU, the National Center for Lesbian Rights and Lambda Legal. Santa Clara County and the cities of San Francisco and Los Angeles also sued, and Los Angeles lawyer Gloria Allred filed a third suit on behalf of a married lesbian couple.
The point that many readers might logically raise is, how can a provision placed into a constitution nonetheless be unconstitutional? The quick answer is, it can’t.
Consider this example: long ago the Supreme Court ruled that in drawing legislative district boundaries, they must be made as close as possible to equal. The principle established was “one man, one vote.” Yet the Court recognized that the variance from the largest district (state) for US Senate and the smallest was about 70 – 1. But this difference was constitutional, because the Constitution itself said so.
The tactic of the ACLU in this issue is similar to its tactics in many jurisdictions on all aspects of “homosexual rights.” It is to force the issue through the courts, and keep it away from elected legislatures, and especially away from the people themselves in the initiative process.
The ACLU here, and in many other issues, is attacking the very idea of a constitution, that it means what it says until and unless it is amended legitimately. The ACLU is attacking the very concept of democratic decision-making within a constitutional government. Although the ACLU claims to be in favor of civil rights, it is opposed to the ultimate sovereignty of the people, whenever it fears that the people will make the wrong decision.
The co-chairman of the Proposition 8 campaign stated it simply and correctly in the following quote. And kudos to the L.A. Times for publishing this quote in the second paragraph, at the beginning of this article. “They go behind the people’s back to the courts and try and force an agenda on the rest of society.”
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