Notes

Yesterday, the California Supreme Court struck down a statutory regime that gave same-sex couples essentially the same rights and duties as married couples, but called them “registered domestic partners” instead of “married couples.” This, the court said, violates the equal protection clause of the California Constitution.

The court did not say whether same-sex couples should be allowed to marry and have their relationship called and recognized as a “marriage.” As the court pointed out on pages 4 and 5 of the slip opinion:

It . . . is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution.

Nor did the court say anything about the federal Constitution. This decision was based solely on rights under the California Constitution.

The court also did not invalidate the will of the people, even though some people mistakenly think so:

In this case the people of California spoke clearly, when in 2000, 60% of the people voted for a proposition that recognized marriage as between a man and a woman. Now 4 Supreme Court justices make a ruling which overturns the expressed wishes of a state of over 36 million people.

Sorry, but that’s what you might call a half-truth. I.e., not the truth. Also known as a “falsehood.” 

In its opinion, the court addressed this point. On page 113 of the slip opinion, the court explained:

Although defendants maintain that this court has an obligation to defer to the statutory definition of marriage contained in [California Family Code] section 308.5 because that statute — having been adopted through the [voter] initiative process — represents the expression of the “people’s will,” this argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people’s will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints that the people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process.

Yes, California voters approved a ballot initiative that made Family Code section 308.5 the law in California. (In case you’re wondering, that section says: “Only marriage between a man and a woman is valid or recognized in California.” In this case, the court was considering a group of code sections, of which that was only one.) But the ballot initiative did not change the California Constitution. Voters in this state can use the initiative process to change the Constitution. (Either of the two propositions on the upcoming June 3 ballot would amend the California Constitution if approved.) And as the court pointed out in the paragraph excerpted above, while section 308.5 was approved by the voters and therefore represents an expression of the people’s will, it remains subject to the ultimate expression of the people’s will, the state constitution.

Essentially, yesterday’s opinion told the people of California, “The only way you can discriminate against gay people is by amending your state constitution to make an exception to the equal protection clause.” (I’ll adopt the word “gay” the same way the court did in footnote 5 of its opinion: “For convenience and economy of language, in this opinion we shall use the term ‘gay,’ with reference to an individual, to relate either to a lesbian or to a gay man, and the term ‘gay couple’ to refer to a couple consisting of either two women or two men.”)

In my opinion that is not, as some people say, “legislating from the bench.” It is simply judicial review, which Chief Justice of the United States Supreme Court John Marshall explained quite well in 1803:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Marbury v. Madison, 5 U.S. 137, 177-178 (1803).

In yesterday’s decision, the California Supreme Court had to decide between the law of the California Family Code, which said that same-sex couples can have substantially the same rights as married couples, but that they cannot be called “married couples” under the law, and the California Constitution, which says “[a] person may not be . . . denied equal protection of the laws.” (Cal. Const., art I, § 7.)

Or, to put it another way, the court had to decide whether telling gay people that they can have substantially the same thing as married people, but that they have to be called “registered domestic partners” instead of “married people,” denies them equal protection of the laws.

You might disagree with the outcome of their decision, but you should see that when the question is posed, the court has to come up with an answer. That is not legislation, but adjudication. It can say, as it did, “Yes, that denies gay people equal protection,” or it can say, “No, that does not deny them equal protection.”

If you want to argue instead that the court does not need to come up with an answer, then you might say something like this: “The court should decline to answer this question. Deciding whether gay people should be allowed to get married is a political question, not a legal one. It should be decided by the legislature, or by the voters with a ballot measure.”

The problem with that argument, however, is that the court did not decide whether gay people should be allowed to get married. In fact, if you remember the passage I quoted above, you’ll recall that the court specifically did not answer that question. The only question answered by the court in yesterday’s opinion is whether gay people are denied equal protection of the laws when they are given substantially the same rights as married people, but not legally recognized as “married” people.

The opinion was about the label, not about the substance. Why? Because the California legislature already decided the substance when it enacted Family Code section 297.5, subdivision (a):

Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

The issue before the court in yesterday’s opinion was not whether gay couples should have all those rights, protections, and benefits provided by section 297.5, but whether, once giving them those things, they can still be called “registered domestic partners” without denying them equal protection of the laws.

California’s Supreme Court did not override the will of the people; it simply looked at two different expressions of the people’s will and decided that the constitutional expression trumped the statutory expression, which is entirely proper.

I’m glad Mike Huckabee didn’t make it past the primaries. Reports a New York Times blogger:

When his speech to the National Rifle Association was interrupted by a loud noise from backstage, Mr. Huckabee quipped, “That was Barack Obama. He just tripped off a chair. He’s getting ready to speak and somebody aimed a gun at him and he — he dove for the floor.”

So apparently the Republic party has regressed to the seventh grade. Just a bunch of gun-toting white guys who like to shoot people, especially when they are in the Middle East, and make jokes about black men running for cover.

The last final exam was last night. Law school is over.

Last night, people in Fresno decided to “flex political muscle” by walking through the streets in a throng:

They were marching through the heart of Downtown Fresno to demand immigration reform.

. . . The message; today we march, tomorrow we vote.

Many marchers also came to protest recent raids in Valley communities, like Mendota, where federal agents rounded up illegal immigrants and separating families.

Wait, I have an idea. How about instead of just walking around in the streets, yelling, waving signs, blocking traffic, and such, you make reasoned arguments? How about that? Maybe you could do some of these activities:

• Write letters to your elected representatives
• Contact your elected representatives and ask to meet with them
• Write letters to the editors of newspapers
• Write articles and distribute them to newspapers
• Participate in online discourse by writing and commenting on blogs
• Find out how to get a measure on the ballot for state elections
• Explain your position to people by staging events where you talk to them, instead of just clogging up their streets
• Speak to an attorney and see if you can file a lawsuit against the government
• Develop connections with reporters and convince them your plight is compelling enough to be a worthwhile subject of journalism
• Et cetera

See, the First Amendment to the federal Constitution says:

Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Notice that, aside from your right to “peaceably to assemble,” you also have the rights to freedom of speech, press, and petition. Furthermore, I would argue that your right to assemble is ancillary to those other rights. (Although here is a handy little historical overview that takes a slightly different perspective.) In other words, what is the point of assembling if you are not going to use the power of your assembled numbers to speak, publish, and petition the government for redress of your grievances? Certainly, you have an independent right to assemble, but if you are trying to “flex political muscle,” then is that really the most effective route you have?

Especially in the modern world, where it is so easy to push ideas to people through the internet and other digital telecommunications, the effectiveness of walking down the street en masse seems rather dimmed. There are procedures in place. There are things you can do. Some of them are suggested above.

But mass protests? Really? You can’t communicate compelling or persuasive ideas that way. What are you going to show people? “Look, dear, there are a whole bunch of people who seem to agree that we need immigration reform.” Alrighty. That’s fine. Why do we need the reform? What specific reforms do we need? Are there downsides to your position? Convince me. Convince everyone. If you are not really convincing people, but you are just getting them to jump on your bandwagon uncritically by appealing to their sentiments, then you are not really participating in representative democracy because you are not getting people to think.

The way to make a functional representative democracy is to have an informed citizenry and you do not have an informed citizenry if you are not out there trying to get people informed. Raising “awareness” is not the same as spreading “information.” (E.g., yes, I am aware that we have problems with immigration. But do I have sufficient information to cast a rational vote? Probably not. And a bunch of people walking through the street are not helping me on that front.)

At any rate, my very last final exam for law school is tonight. I should probably get back to studying.

And since I’ve been writing so much about politics the last couple days, I want to say one more thing that’s on my mind.

Everywhere I look in the press, I see Democrat-friendly people complaining that the primary contest between Clinton and Obama is so divisive that Democrats will be unable to unite once one of them is finally nominated.

Okay, I’m sorry, but if you are partial to either Clinton or Obama (and, for my money, I’m highly partial to the latter) and you really think divisions between them or their respective supporters are so great that you could not in good conscience vote for the other one, then what exactly are you going to do come November? Vote for that lame excuse for a Republican, John McCain?

(In case you haven’t noticed, John McCain appears to have approximately one plank in his platform: “I’m a war hero, dammit!” I guess if you want a candidate who is completely out of touch with the interests of most Americans, including all those “red state” people, then sure, you could vote for McCain. I guess.)

Are you going to just not vote at all, because you have sour grapes over your favorite Democrat not getting the nomination? If so, then maybe you should go back to high school and re-take your civics class. Our system works when people participate, not when they stay home on election day.

If you plotted these three candidates on a political spectrum, they would form a skinny little isosceles triangle: Clinton and Obama over there next to each other with McCain off somewhere to the right. There’s no meaningful difference or division. I’d vote for either of those Democrats. I think Obama can think and clearly express more nuanced ideas than any public figure I’ve ever seen, but I suspect Clinton is just as smart behind closed doors. She just seems to be a little more embedded in the game of “politics” than he is. (McCain, on the other hand, seems to me like one of those cranky old anti-intellectual, let’s-just-go-blow-them-up kind of guys. No nuance at all.)

Would I prefer to vote for an atheist libertarian? YES. But none are in the race and there’s no way I’m going to vote for yet another old pandering white guy who claims to be a war hero. And the differences between the Democrats are negligible, in the grand scheme.

So what’s all this about a Democratic party that can’t unite under one candidate? It means we have to conclude that all (or substantially all) the supporters of one of those candidates will either stay home or go running to the arms of John McCain on election day. Really? Really? That’s ludicrous. And if you’re one of the people who would do either of those things, maybe you need to check and see whether you are really participating in politics or just playing the game of “politics.”

It’s always nice to see a politician change his mind, explain why, and actually have good reasons.

A few minutes ago, I received an email from “CREDO Action.” Here are the important parts:

President Bush wants an endless war, but the majority of Americans want to bring our troops home. Now there is a real plan, endorsed by military leaders, over 50 congressional challengers, and 50,000 citizen co-sponsors like you.

. . .

The Responsible Plan will:

1. End U.S. military action in Iraq
2. Use U.S. diplomatic power
3. Address humanitarian concerns
4. Restore our Constitution
5. Restore our military
6. Restore independence to the media
7. Create a new, U.S.-centered energy policy

And then there is a link to a page where I can help deliver this “Responsible Plan” to a Congressional representative’s office and another link to a page where I can sign a petition endorsing the “Responsible Plan.” Uh-huh. Right. Like I’m gonna do that on the basis of seven hugely vague phrases that are utterly without details. Sure, maybe I want to “Restore our Constitution,” but maybe what I think about that is not exactly what the people at “CREDO Action” think about that, or what the authors of this “Responsible Plan” think about it.

How about maybe putting the full text of this plan in front of people’s faces before you ask them to “endorse” it? How would that be? Maybe, oh, I don’t know, HONEST? Are you trying to hide something? Are you just so cynical that you think constituents are too lazy to read such a thing? I really can’t think of a good reason why you wouldn’t put a big giant link to the actual plan at the top of the email.

See, to actually read this “Responsible Plan,” you have to:

1. Click on the only one of six links in the body of the email that will take you to the petition page.
2. Scroll down to the bottom of the petition page.
3. Click on the link to www.responsibleplan.org.
4. Find the link at the top of that page that says “read the plan.” Click it.
5. Scroll down through the executive summary, which is equally devoid of specifics.
6. Click on the button that says “Download the Full Plan.”

Yeah, sorry, that’s lame. And it feels deceitful. And it’s just the kind of lunacy that political “activists” love: State massively broad and unobjectionable goals, leave out the details, expect people to rally around you, all grassroots-like, a bunch of drones.

It’s just one more reason why, as I mentioned in a recent post, “political” types bother me. I don’t trust these people. If they have substantive ideas, then they need to present those things up front, instead of hiding them in a virtual back room, like the rest of us can’t be trusted with them.

At any rate, if you download the PDF and read the plan, skip to pages 12-21 (or pages 13-22 of the PDF file). That’s where all the meat is. There are some good ideas. It’s probably worth endorsing. But don’t you dare sign any petition “endorsing” that plan until you’ve actually read it. And if you are an “activist,” then don’t you dare ask anyone to sign any petition endorsing that plan unless you first ask them to read the plan itself and give them a chance to actually do so.

Okay, my study break is over. Back to the law of evidence.

I am tired of George W. Bush. He’s on my TV right now, holding a press conference in the Rose Garden, going on and on about how Congress is so unreasonable not to let him drill for oil in Alaska or build new refineries. No word, however, on whether he would sink any money into research and development of alternative energy sources. We do not need more of this lunacy.

Oh, wait, now he gets a question about this, and he says there is “not enough emphasis on the here and now.” Congress is too worried about ethanol and hydrogen, he says. Huh? No, the problem is that we have too much emphasis on the hear and now at the expense of the future.

What a jackass. He’s being rude to the reporters now. Lame. Listening to this jerk is like listening to a petulant little boy. He doesn’t act like a president. He acts like a child. Talks like one, too.

Oh, oh, this is good. Now he says that Congress is “letting the American people down” because they don’t let him do what he wants to do. “Either it’s a lack of leadership or it’s a lack of understanding.” Right. So Congress, the branch that is inherently and by design more closely connected to the people than the Executive, is “letting the American people down” when they exercise their checks on Executive power. Right.

Ugh. I need to go study.

You know why “political” types bother me? Because they don’t care about real political issues, such as solving social, legislative, or public policy problems. All they care about is their stupid game.

For instance, consider the bloggers discussed in this post over at Threat Level on Wired:

Liberal bloggers are expressing outrage over Barack Obama’s appearance this weekend on Fox News, accusing the Democratic presidential front-runner of kowtowing to the network’s conservative viewers, and throwing his online supporters to the wolves.

. . .

“This will likely further dismay liberal bloggers who had worked very hard to get Dems to boycott Fox as a way of delegitimizing the network and who already criticized Obama for agreeing to appear in the first place[.]”

. . .

“By going on Fox News, Obama made the right-wing press legitimate,” wrote Daily Kos diarist “Bonddad” Sunday morning. “Simply put, I cannot vote or support anyone who participates in this medium.”

Those are not substantive complaints. Those bloggers are not talking about reality. They are talking about making moves in their stupid game in the parallel playing field that calls itself “politics” but which has nothing to do with politics. It’s more like religion or tribalism. It’s not a discourse on how best to govern our nation or a conversation about the public interest. It’s a game. A stupid game.

And it’s a dangerous game because it prevents people from recognizing that taking sides in the Epic Battle of the Political Parties will not get anything done. Ever.

Why should it matter if Barack Obama does an interview for Fox News? Those angry liberals certainly wouldn’t complain if he did an interview with a blatantly biased leftist organization. What, so they prefer candidates that play petty games like “boycotting” Fox News? Are we in the fifth grade here?

If you want to know what’s wrong with America, that could be part of it.

Also, I received a scholarship a couple weeks ago. (I keep forgetting to mention this when I talk to people who like to know about these things.) It was the James K. and Carol Sellers Herbert scholarship, which is given to a student “who demonstrates academic achievement and personal initiative” and “who [is] highly motivated to study law and [is] dedicated to the spirit of learning.”

Funny story: When the Associate Dean was announcing my award at the Barrister’s Ball, she said something about how this award goes to “a true scholar among us” and “someone who loves being in school.” Upon hearing that second phrase, I said to the people at my table, incredulously, “Who’s that?” Moments later, the Associate Dean called my name. Oops.

(In my defense I would point out that the criterion is being “dedicated to the spirit of learning,” not “loving to be in school.”)