Cowboy Confessional

My gay friends here in San Francisco are in high dudgeons, and rightly so. To misuse a sanitized southern expression, they have been screwed in the pooper chute. Normally such activity would make them happy, but when 5,661,583 people bum poke you against your will … well, is can make a man as irritated as a hemorrhoid.

In California, we vote on everything. It is democracy run amok. Our biannual referenda fests allow us to swing the heavy hand of government to control our neighbors’ behavior and spend ourselves into fiscal extinction. This year a proposition passed that characteristically cast California into the role of a rights-restricted state (seriously, if this joint ever elected a strong leader it would classify as a fascist state).

In this case the election has created a constitutional crisis.

Proposition 8 (or as its homophobic detractors called it, Preparation H) passed and created an amendment to the California State Constitution that prohibits same sex marriage. Since constitutions are the express written will of the people and the highest law in the land, the clauses therein are immutable within the domain. In other words the California Supreme Court has no authority to overturn or rewrite any part of the state constitution in including Prop 8.

What makes this interesting from a constitutional law perspective are the seeming contradictions now with in the amended constitution. Like the national constitution, California’s document declares the people’s equal protection under the law:

A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws;

Some people contend this invalidates the new amendment, but sadly they are wrong. First, constitutions can be self contradictory. The people have the power to create whatever inanities they desire. A court not bent on projecting its biases upon the people would simply respond with we “Well, you didn’t give us the power to overrule you, so you’ll have to change the constitution again.”

California Supreme Court judges are not that honest or intelligent.

More germane is that generalized clauses are preempted by specific exception clauses. Take the constitutional passage above. The general right is that you cannot be deprived of life, liberty or property. The exception clause is that you can be deprived of life, liberty and property but only if due process of law is first exercised (or in the case of the Los Angeles police, at about the same moment). The government can execute you (life) but only if you violated a law for which the penalty is death and after you had your day in court.

The new amendment simply reads “Only marriage between a man and a woman is valid or recognized in California.” This is a specific exception to the general equal protection clause, and thus perfectly legal (as well as perfectly repulsive). An honest court that lives by its oath will uphold the constitutional prerogative and stupidity of 5,661,583 voters.

The only odds of making a wholesale change is in federal court. Preemption is the nature of law. As the specific exception clause preempts the general clause, so do laws in a higher jurisdiction. Pass a city law that conflicts with state law, state law trumps. Pass a state constitutional provision that conflicts with the national constitution and the national writ wins.

The problem for opponents of Prop-8 is that little in the national charter addresses this issue. The U.S. Constitution never mentions marriage, leaving only general protections. The legal definition of marriage has always been a state-level issue. Additionally, marriage is a mechanism of churches and statutes, and thus is not technically a right (except in the generic abstract of all rights belonging to the people). Thus the best defense in the U.S. Constitution is an almost identical “due process” clause, and in that the deprivation of “liberty” provides a flimsy rope for gays to grasp. Likewise the national constitution’s “equal protection of the laws” clause has suspect powers.

It will be tested, however. There is no doubt that the federal courts will at some time be asked to overrule the Proposition 8 clause of the California constitution. It will be filed in the Ninth Circuit (widely known as the Ninth Circus due to their completely inane and oft overturned rulings) and I suspect they will kill the amendment — it is their bias. However, their decision will be appealed to the U.S. Supreme Court. Odds are the Supremes will hear the case and decide in favor of federalism — the theory being that in the absence of a compelling national government interest, state laws (including state constitutions) are the appropriate jurisdiction for dispute. In short they will once again tell the Ninth Circus Court to mind its own business and stay out of state affairs.

In short, lesbians and gays are screwed.

More troublesome — mechanically speaking — is that a number of California same sex marriages are about to be invalidated. For less than six months California was a state where butt hole surfers and carpet chewers could wed. And wed they did. An estimated 18,000 of them put heteros to shame by their willingness to commit the same stupid mistakes that heteros have made all along.

Welcome to divorce court my friends. You’ll love custody battles the most.

The question is if these marriages are still valid. I’m unclear on the mechanics of constitutional amendments that invalidate what was once legal. In America’s prohibition insanity, the once legal practice of peddling booze was made illegal via a constitutional amendment. Once legal liquor licenses were instantly inoperable, though they may not have been formally invalidated. Yet we have in this nation the legal tradition of “grandfathering”, whereby property once held legally continues to be legal even after such products are banned. Silly states that banned machine guns still let their owners keep the ones they already had.

But a “marriage” is not property — it is merely a legal definition. What the law giveth, the law taketh away.

The question is will anyone challenge the standing marriages. I doubt it. The backlash against Proposition 8’s passage has already induced minor scale violence. Backers of the proposition do not want to create more mayhem before heading to court. And they may never see the value in kicking around people who have already walked the isle.

Lesbians and gays have only one solid alternative — passing yet another proposition that yet again redefines marriage, invalidating Proposition 8. There are several means for doing so, some with political implications. Same sex marriage proponents can do it via an initiative like their foes did. But they know the odds of passage are slim. If 2/3rds of the legislature can be convinced to do so, an amendment can be put before the people. The same problem applies. There is the constitutional convention route, but that is entirely too tricky for comprehension.

Again, gays and lesbians are screwed.

Long ago people wrote songs about California, a place seemingly of vast and open scenery, good vibrations and endless dreams. Now it is merely a place for self-inflicted suffering … and that’s before you figure in the high tax rate. Shame. I hear it was once a good place to live.

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