Proposition 8, Tolerance, and Discrimination

I have read about and discussed California's Proposition 8 quite a bit in the past few months, it being of much interest to me (since I live in Hercules, a little town in the northeastern part of the SF bay area). Along the way, I have noticed a disturbing trend: anybody who states their support of Proposition 8, even if that is all that they say, is almost immediately labeled by somebody as a bigot and as intolerant. The California Supreme Court even used discrimination as the underlying justification for striking down Proposition 22. There have been extreme instances of this type of labeling, but for this discussion we'll consider them outliers, and instead focus on the common response in a general fashion.

Tolerance

First things come first; we need a definition, instead of a label or epithet. Here are Webster's definitions for tolerance:

1. The power or capacity of enduring; the act of enduring; endurance.
2. The endurance of the presence or actions of objectionable persons, or of the expression of offensive opinions; toleration.

The first thing to notice is that tolerance has two fundamental parts: allowing freedom of choice, and being patient with others. Other dictionary definitions also have a strong component of respect, but I would posit this is a manifestation of the "allowing freedom of choice" aspect, in that you respect others' right to a different opinion or way of being. Just as you demand that right for yourself, and you would not want to be ridiculed for your opinion, you must provide like respect for others' views.

However, there has been an abuse of the concept of tolerance in that it has been extended to imply more than what it means. Usually, the extension takes the form of something along these lines:

If you don't agree with my opinion, then you are close-minded and too conservative. You are intolerant, because you think that what I am doing or what I say is immoral or wrong.

Now, what I wrote above was a blunt depiction of what some people imply when they call others intolerant. That was deliberate, to demonstrate a point; usually they express their view of what tolerance means in more subtle ways, but nonetheless the implications are there.

The problem, however, is fairly obvious: tolerance does not mean that one has to accept another party's opinion, or even admit or imply that their own opinion could be wrong. That is not part of tolerance at all; you can be very tolerant of others' views and very respectful, and in fact even be a very staunch supporter of others' right to have their own opinion or way of life without ever conceding that your own opinions might be wrong.

To be open-minded, however, is different from tolerance. Open-mindedness implies that you admit that you are searching for corrections and additions to your knowledge and opinions. But again, it requires only a very soft admission that you could be wrong. You can be open-minded and a critical thinker, and have an opinion presented to you, inspect it, and finally reject it without compromising your 'open-minded' status.

To be intolerant, then, is to disrespect others' right to their own opinion and way of thinking or acting. But remember: intolerance of certain items is a moral requirement: we should be intolerant of murder, rape, incest, abuse, racism, etc. That is the right thing to do. But we should be tolerant of opinions, freedom of speech, religious views, sexual orientation, and so forth.

Application to Proposition 8 Detractors

And now we come back to the disturbing trend I noted earlier. Those who decry Proposition 8 supporters as being intolerant usually do so simply for it being stated that the supporters will vote to defend traditional marriage (and an anciently-established societal norm). This brings the detractors' cry of intolerance into focus for what it is: they themselves show intolerance by belittling an opinion different than their own. They essentially use the moral pressure of being viewed as intolerant to motivate Proposition 8 supporters to back off from supporting the amendment. Boiled down, this is basic disrespect and manipulation, and thus squarely lands the detractors in the realm of hypocrisy. They quickly call Proposition 8 supporters intolerant, when they themselves demonstrate by that very statement that they are at least partially intolerant. The claim that they are seeking so-called "equality" does not help their case; that justification is only a misdirected attempt at hiding the fact that they will not tolerate the presence of another opinion.

On the flip side, there is no room for supporters of Proposition 8 to demonstrate intolerance. Respect for others' right to an opinion is not only important, but it is a direct manifestation of one's love of liberty and freedom. The right to choose an opinion and to vote accordingly is a right that should be defended even to the loss of one's life. There is no room for intolerance, and I sincerely ask that those on both sides of the debate try to internalize this principle. All involved should discuss, vote, and decide; but they should not intimidate or attempt to manipulate others' right to their own decision. Your future freedom depends on respectfully allowing others to have an opinion that differs from your own.

Discrimination

Once again we'll start with a definition, this time from the American Heritage Dictionary:

1. The act of discriminating.
2. The ability or power to see or make fine distinctions; discernment.
3. Treatment or consideration based on class or category rather than individual merit; partiality or prejudice: racial discrimination; discrimination against foreigners.

The concept of discrimination is fairly straightforward, as long as you recognize that it has two (wildly different) flavors. The first is good in that it is the ability to see details and differences. As a synonym for discernment, it is a positive trait in that a discriminating person cannot be duped. They understand that small details can have a great effect on the net value or meaning of something.

The second flavor is nearly the opposite of the first. It is to make generalizations (often that are erroneous) of a class, and assume that individual members of the class are all subject to the conclusions of that generalization. Think of it as ignoring details and differences, and assuming uniformity. This version of discrimination has rightly earned a negative connotation. I would add that an acceptable additional restriction for our discussion is that the class is a class out of necessity; e.g. members of the class are lumped together because of an inherent trait, one that they can't choose to have or to not have. Discrimination against an individual due to something they verifiably can't change (such as race) is worse than discrimination against an individual for something they can change.

Application

Proposition 22 was struck down by the CA Supreme Court in a 4-3 decision that hinged upon discrimination. For more information on the process of judicial review, please see my earlier post On Judicial Review, and Rule by the People. Also, see More on Judicial Review for some additional insights into the In RE Marriage Cases decision and judicial activism in general. Essentially, the consenting judges claimed that the CA Constitution does not contain any provision allowing laws that discriminate against any group of people. That's a fair enough statement, but the problem is that this was applied based on an assumption that restricting marriage to be only between a man and a woman is discriminatory.

So let's take a step back, and look at marriage. At first blush, it would seem that this restriction perhaps could be discriminatory. But, if you examine the issue further you will find that this is not the case. If we use homosexuals as the class, then here are the questions we have to ask to determine if marriage as a heterosexual-only institution is discriminatory:

• Do homosexuals constitute a class that can have (possibly erroneous) generalizations made about them?
• Can they individually choose to be a member of this class, and choose to remove themselves from the class (e.g. is it an inherent trait, like race)?
  
• Is the marriage issue ignoring individual merit or detail (e.g. does marriage fit easily for at least some homosexuals)? Or, instead, is the generalization of man-woman marriage actually correct?
  

Class Status

The first question is easy to answer: yes, homosexuals undoubtedly constitute an undeniable class. They represent somewhere in the neighborhood of 2% of the US population, and they have common traits.

Can they Choose?

The second question is more complicated. There appear to be two camps within the homosexual community. Some contend they are born the way they are, that their homosexuality is intrinsic. They feel they cannot change it. The other camp believes that they have chosen their sexual orientation and they are not interested in finding a genetic link or anything of the sort (or else someone might come up with some gene-therapy-type 'cure' for homosexuality).

Personally, I think the answer lies in between the two camps. Every human being has weaknesses and temptations, and many of those are evident in such a way as to indicate that the seeds of the weakness were with them at birth. However, just because we are born with weaknesses, that does not mean we have to succumb to them. I am a very strong believer in the power of human choice: that we can choose what we do, what we say, and thus for all intents and purposes what kind of person we are. We are certainly not robots who are programmed such that we just can't help but, ahem, perform sexual acts of any variation. I cannot stress this enough: we can choose our actions.

Thus, my own answer to the second question: homosexuals have a choice, even if it is a very difficult one. They are not forced to be what they claim they are, nor are they forced to do what homosexuals do. The temptation may be intrinsic, but acting upon it is most certainly not.

Generalization, and Marriage

The final question requires establishing yet again a definition. What is marriage, anyway? What is its purpose? Here are the first few (relevant) definitions listed for marriage, this time coming from the Random House dictionary:

1. The social institution under which a man and woman establish their decision to live as husband and wife by legal commitments, religious ceremonies, etc.
2. The state, condition, or relationship of being married; wedlock: a happy marriage.
3. The legal or religious ceremony that formalizes the decision of a man and woman to live as husband and wife, including the accompanying social festivities: to officiate at a marriage.

To understand it better, I will propose a few points as integral to marriage, and then some comments about each. Here is the first:

Throughout the entire history of mankind, it has been between a man and a woman, logically due to a biological basis required to conceive and perpetuate human life.

Artificial insemination is, in programmer parlance, a hack in that it is what you try when the accepted conventional method fails. This cannot be the sole method for cases with a 100% certainty that the conventional methods of procreation won't work (e.g. lesbian couples).

Throughout history, marriage has been administered and regulated by spiritual/religious leaders.

It is only in the last 150 years or so that licenses of any kind have been required; and, even in the US before about 1920 or so they were only required for interracial marriages. Yes, I'm totally serious. Marriage is not only a societal construct, but it is closely related to religion. Sometimes those spiritual leaders were also the civic leaders, but the norm was that they had spiritual or religious charge over the people they officiated in marrying together.

Marriage is not just about love and devotion. There are many other important traits to marriage.

The traits that are necessary are love, devotion (faithfulness), sexuality, patience, sacrifice, using complementary differences to accomplish what one could not accomplish alone, commitment, and humility. There are arguably more. Marriages lacking any one of these things tend to be unhappy and rocky. Marriages lacking some of these things at first, such as arranged marriages, can over time gain these traits and become very successful; so the lack of a trait or two does not mean the marriage is not allowable. Nor does the presence of one or two of these traits mean marriage is allowable.

Marriage is ultimately about family, which means it's really about having and raising kids.

Yes, there are married couples that choose not to have kids, but they are sincerely missing the point. There are those who cannot have kids due to infertility, but there is still some possibility they can get pregnant. Case in point: we have some family friends who tried for years to have a baby, and were not successful. They subsequently adopted two kids, at different times. Around the time the second child had his first birthday the wife turned up pregnant, which was obviously a total surprise (and a very happy one, I might add). Using infertile couples as justification for homosexual marriage is extremely tenuous.

Marriage is not a right, it is a privilege. This is closely related to the spiritual aspect of marriage, and the fact that it is not really (or originally) a civic right.

The state has only begun to regulate marriage en masse in the last century or so, usually for monetization like paying for a license, and for tax tracking and regulation. Neither of these are necessary for marriage or integral to it. To claim that marriage is a right is like saying it is a right that a couple be able to have six boys in a row. If the conditions are met, and the opportunity presents itself, they might just have six boys in a row. But, it would be absurd to demand that marriage be provided as a right, just as it is absurd for a couple to demand to have six boys in a row. If the conditions are met then the privilege may be taken; but if not, then that unfortunately means the person is not (or perhaps should not) be getting married.

There are potentially more integral aspects of marriage, but these will suffice. Yes, it is somewhat of a complicated contraption, but it is fairly straightforward and intuitive.

So, would it be an unfair generalization to say that a same-sex relationship could not fulfill the definition of marriage? The answer hinges on whether even some of the relationships could fulfill the conditions to call it marriage. If even some of them could, then that opens up the possibility that all of them could, and it certainly would be unfair and discriminatory to exclude them from the legally-allowed benefits of marriage.

It is obvious that it depends on how one defines marriage. To me (and most of mankind, even spanning mankind's history), all the above points I listed are obvious, logical parts of what marriage is. Same-sex marriage advocates often try to boil marriage down to one thing: "we love each other, so we should be allowed to get married." As stated above: love, devotion, sexuality, etc. are only part of the equation, and they by themselves are not justification to have parties included in the realm of marriage.

So, what is missing? First, the biological component. Homosexuals cannot reproduce with their partner. Period. It is impossible. Lesbians can claim the option of artificial insemination, but that rings hollow: it's not their partner's sperm, and it is a hack, where the real process is not even possible. Adoption is also covering up the original problem, and rings hollow (not to mention that study after study, not just case studies, show children do much better in a nuclear family with a father and a mother). Any slowdown in social research reports affirming the benefits of father-mother-children relationships is due largely to political pressure, and the fact that the research is already out there showing the obvious conclusion.

Second, most spiritual and religious leaders are often at the far opposite end of the spectrum from homosexuality. Thus, homosexuals have chosen the civic route to try to enter the marriage fray. With a legal definition and civic allowance only, that cheapens the very nature of marriage, ignoring its roots and purpose.

Third: having and raising children. Due to the biological incompatibility, their children cannot come from their partner (or else the child cannot be their own biological child; one partner definitely gets cut out). This takes away a fundamental right for a child to have a mother and a father. And yes, this is a right, because all children must have paternal and maternal DNA to be conceived, and those who conceived the child have a responsibility to the child. Parents who give their baby up for adoption can usually choose the adoptive parents, and they are doing what is best for the child, thus fulfilling their responsibility in a tangible way. Also, it is quite evident that children have more trouble on average when they are not given the opportunity to grow up in a nuclear family. Circumstances vary, and children's reactions vary, but by and large this result is quite evident. Homosexual couples cannot provide both a mother and a father, by definition. Strike three.

In consideration of these definitions, it cannot be deemed discriminatory to say that same-sex relationships should be excluded from marriage. By their very nature, homosexual relationships do not fit into what marriage is. Therefore a generalization that every one of them cannot be made into marriage is a true statement, nor is it ignoring details or the merit of the individual relationships. In other words, the generalization is completely true. Thus there is no discrimination, and the CA Supreme Court's decision was invalid, as it was based upon invalid definitions of either discrimination or marriage, or both.

Final Thoughts

Due to the foregoing discussion, marriage simply does not make sense for same-sex relationships. It would need an expanded and changed definition before that could be the case. However, a society does not suddenly start changing the definition of an institution that is thousands of years old without that change justly being described as Orwellian. If a society changes the language to suit political or minority pursuits like this, it helps wedge a door open that will lead to degradation of the language (and thus the clarity of our thoughts in general), and of common sense. Evidently, control over language yields considerable control over moral issues.

A final definition note: the word bigot and related terms are often used in connection with discrimination (and anecdotally Proposition 8), but remember that it is tightly related to the word discrimination. As such, if no discrimination is taking place, the proponent cannot be rightfully considered a bigot on the subject.

Unfortunately for many devoted same-sex couples, same-sex marriage is an oxymoron. I do not wish to belittle their relationships, as I am sure they are as sincere in their relationships as they can be, as am I. They have protections under domestic partner laws in California that give them all of the state-derived legal benefits of marriage without needing to change the definition of marriage. I see no harm in keeping it this way, and I question the motives of those who seem to think that preserving the definition of traditional marriage is discriminatory. I would ask, what are they really after? Marriage is not necessary to prove love and devotion or make a commitment. If that is all they are after, then they already have what they want.

More on Judicial Review

My brother-in-law, who is studying law at Gonzaga University (and is specializing in constitutional law) had some interesting things to say about judicial review after he read the last post. He posted his response article at

http://www.americanfreemen.org/judicialactivism

He edited his article once, and I have included his changes. The following is the text of his article, (C) Stewart Feil, and reproduced here by permission.

-----

I'm not sure exactly where to start. It would be helpful to have a question to address. Or a key subject to direct comments toward. I guess I'll start with Judicial Review:

You are quite correct that Marbury v. Madison was the first time the Supreme Court (1) had the power to interpret the constitution; and (2) declared the courts to have the power to review legislative acts signed into law. Remember that Thomas Jefferson is credited with saying that the courts are the weakest branch of government, but that it is through them that this experiment will be destroyed. Since then the Court has gone through different phases of how it goes about judicial review. One of the greatest problems with the court is that the Justices are completely politically unaccountable. This means that President X could appoint a bunch of Justices who will shape how policy is applied for thirty years or more. (Justices have a tendency towards longevity once they are appointed--See Justice Stevens for an example). Unfortunately many of the most important Supreme Court decisions passed down in the last 100 years were made by the appointees of Franklin Delanoe Roosevelt. The court he created is the epitome of judicial activism.

Now it is also of critical importance to understand that judicial activists don't believe that they are judicial activists. They think that they are judges who are not blinded by prejudice, or bound to "tradition," or the old ways. They see themselves as Progressive thinkers. And because of the renown given their office, they are truly pompous enough to believe that only they are rational enough to tell the rest of the Universe what is appropriate or what is inappropriate (having long since abandoned any pretext of a belief in Right and Wrong). Whenever anyone cries, "Judicial Activist!" those towards whom the accusation is aimed simply retort with something best summed up as, "Redneck".

Many law professors (who would themselves be judicial activists if given the chance) try to discredit the title as a mere pejorative. It is not. The difference lies in the locus of political will: if it is in the court, it is activism; if it is in the legislative branch or the people, it is constitutional. And yes, I just juxtaposed as opposites "Activism" and "Constitutional". It is an apt comparison simply for the fact that Constitutional court behavior cannot be activist in nature. The implications to that are broad, and may be somewhat startling. First, Roe v. Wade must be over turned to maintain constitutional integrity. Next Brown v. Board of Education (it has nothing to do with the constitution anyway, it just parades about as being about constitutional rights. The fact of the matter is, it is about a bad interpretation of a legislative act, and the interpretation should have been overturned as idiotic, and irrational, and the statute given its proper, original meaning rather than by fundamentally changing the definition of "Liberty" so that the court could force its will upon the people. Most judicial activism centers around maldefining words, much like FDR and his inaugural address announcing the "New Bill of Rights").

Thanks to the last 70+ years of judicial activism, coupled with the abduction of the word "liberal" by collectivists of every ilk our society has forgotten that there is a difference between a right and an entitlement. There is a difference between charity and welfare. And there is a difference between welfare and socialism. Until the court can figure out the differences between those, it will always present a threat to those who believe in true liberty. It sickens me that in the name of liberty, those of religious faith are silenced. It sickens me that in the name of liberty states are constrained from determining their own moral values with regard to human life. It sickens me that an institution as old as the written record of humanity if not older is being challenged by those who behave in a manifestly unnatural way.

The California Supreme Court would have been within its power, and in fact truly fulfilling its responsibility if it had legitimate cause to strike down proposition 22 as unconstitutional discrimination.

"The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." CA Const. Art. 1 Sec 39(a).

Those are the constitutional words upon which the court struck down proposition 22 as unconstitutional. The court would concede that proposition 22 does not discriminate against people for race, color, ethnicity, or national origin. However, there is also no discrimination based upon sex. Sex is an objective category determined by looking at biological features. Proposition 22 applies equally to men who want to marry men and women who want to marry women. There is not discrimination based upon sex as a result of Proposition 22, and therefore it should not have been struck down. If the people of California want to protect sexual orientation as a constitutional class, the process should be amending the state constitution to include that language with the other protected class language already in Article 1 Section 39 (and repeated several other times in article 1), not by judicial fiat that there is another protected class.

How can all this be going on? Obviously national legislation has never been able to solve the question of abortion. I don't recall any clause in the constitution granting the federal government power to define morality for the states. In fact, the constitution quite clearly purports to LIMIT the powers of the federal government to those enumerated. It is not supposed to work like a well oiled machine. It is supposed to be a slow, tedious, and almost painful process. That way, the laws passed will at least have been given due consideration. But since FDR, that hasn't been good enough. The government must move faster. As such, the court greases the cogs. Congress delegates away much of its responsibility to agencies. Why? For efficiency. The system was never meant to be efficient. It was designed ensure that only the RIGHT laws passed. The problem arose when what was "right" in the eyes of 9 people wasn't being enacted quickly enough by the process, so they took it into their own hands. Of course, in doing so they paved the way to tip the scales well past the justice they sought to serve towards the tyranny that looms over use today as caused by such judicial fiat as the decision in In Re Marriage Cases. It's not about liberty. It's about the destruction of right and wrong. It's about the removal of consequences for wrongdoings. It's about dragging society down to the lowest common denominator--a process done slowly, and piece by piece until pretty soon everyone, ideally, will think that gay is normal, religion is the cause of hate, animals have more rights than humans, and some guy behind a curtain will be left holding a very large bag of wealth, redistributing it per whim. (Aside: no form of collectivism--communism, socialism, fascism--can function without extensive "community organizing" (yes, I'm jabbing at Barack with that one), and the person with the power over the plan has power over the life and death of every denizen unwilling to live [inside] the box. There is no such thing as a benevolent dictator. There is no Utopia. There is only tyranny and absolute power.)

It is one thing for the courts to overturn legislation when congress, or a state legislature lacked the political will to actually provide a functional law. The court is not supposed to make decisions of will for exactly the reason that elected representatives are: political accountability. Any time our government is to exert will over the citizenry, those officials who enacted the law must be fully accountable to the constituencies from whom they derived the power to enact the laws in the first place. The court has a proper role in overturning such laws as would shield officials from the political repercussions of their actions. The judiciary must unmask the charlatans of government. However, that is only half of the role of the judiciary. The greater duty of the judiciary is to the people themselves. The court must only exercise judgment. It must not exercise its will over the people, especially where the people have resoundingly spoken as to their will. When the Bill of Rights amended the constitution, it did not state mere truisms. It spoke of actual meaningful rights. Amendment Ten reads,

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

That doesn't mean that the people and the states are the same thing. It means that the people have meaningful power in this nation. If courts can blithely overturn law duly passed by referendum to the people, then the people have no power. This I cannot accept. Government only has power so long as the governed consent to that power. When the faith of citizens in their government dwindles, or rather is extinguished in the face of manifest tyranny such as that of the California Supreme Court, then it is likely the time for the tree of liberty to be watered again with the blood of patriots and tyrants is nigh at hand.

So, we are left once again with the question of the scope of judicial review. How far is too far? Too far is when a court creates a new constitutionally protected class where there was none before. Too far is when a state supreme court acts in such a way as to effectively create law for 49 other states. Too far is where the voice of the people is squelched by the voice and will of four virtually untouchable judges. Too far is where the California Supreme Court went with the In re Marriage cases decision. If that decision is upheld either by the failure of proposition 8 or in a later challenge before the US Supreme Court, then we will know that the new tyranny has emerged and established itself. When they come to take our religion, and our liberty, pray they have not first succeeded in taking our guns, for if they have, they will freely, and happily, take your life.

Stewart Feil

On Judicial Review, and Rule by the People

May 15, 2008 was a momentous day. Four of seven California Supreme Court justices voted to overturn the results of Proposition 22, a law passed by a 61% vote in California in November 2000. The contents of the law were strikingly simple:

Only marriage between a man and a woman is valid and recognized in California.

The result of this judicial decision was to open the floodgates of same-sex marriages. Some were cheering that day, but many were silently lamenting what had transpired. I was one of those who lamented the decision, but what is important is the framework for why I have come to that conclusion. The background and facts surrounding the issue are paramount for any individual being able to come to an informed (instead of emotionally-charged, and thus potentially erroneous) conclusion.

This post will be somewhat long, but I believe it will be helpful in understanding the discussion on the current thrust behind Proposition 8 that is currently before California for a vote in November.

Judicial Review

The concept and application of judicial review are nearly as old as the United States itself. It was shortly after the formation of the US under the Constitution that the US Supreme Court established the precedent of being able to review laws for their constitutionality, as arguably envisioned in Article III and Article VI of the US Constitution (it was Marbury v. Madison, I believe, that was the case to have that power established). It was never explicitly stated in the Constitution that the judicial had the power to review laws for their constitutionality, but it is commonly held that the 'judicial power' mentioned in the Constitution certainly included this concept.

This rather necessary function of the judicial branch has helped to curb the creation and implementation of onerous laws for two centuries. When the power is applied with care, it is a powerful and useful check against congress and immoral applications of power via the laws of the land. However, judicial review can also be used to destroy laws that are necessary and good, and the onus is on the justices first to do what is right, and barring that, the people to pass (or pressure their legislators to pass) amendments to their constitutions to reign in inappropriate decisions by judges.

Throughout this discussion, note that the California Constitution and its judicial are set up to be nearly identical to the federal level, so what applies to the federal level applies to the state level (and this is true of just about all of the states).

There are essentially two methods in which laws are interpreted for their constitutionality. (For more information on the following discussion, please see

From Constitutional Interpretation to Judicial Activism: The Transformation of Judicial Review in America

by Christopher Wolfe, Ph.D.)

Traditional Interpretation

The first is a traditional view, where they take the literal words of the constitution and decide whether a law or parts of a law jive with that or not. This method does not presume much about what the founding fathers meant, and takes what they wrote at face value.

Within this are two variations on deciding whether a law fits within the constitutional framework. The first is a narrow view, in that if the constitution doesn't specifically mention that a type of law or concept is allowed, then the law is not constitutional. The other, a more broad view, is that if the constitution doesn't forbid it, then the clause about delegating to the people any power not mentioned in it means that the representatives of the people (e.g. the legislative branch) can pass laws to govern those issues.

The narrow-traditional view is somewhat untenable; it's very difficult to get any laws passed, even useful and necessary laws, under that interpretation. Suffice it to say that, pre-20th century, the traditional-broad view generally prevailed among judges.

Modern Interpretation

The modern view essentially only uses the wording of the Constitution to boil it down into vague concepts and principles. A judge espousing this view quite literally attempts to infer what the principles are, and then filters a law relative to what he or she thinks would jive with those principles.

While it appears at the outset that this might be a useful way to apply the principles of the Constitution to modern, changing times, it is readily apparent that it could create too much latitude for judges to 'decide' what they think constitutional principles are, and then affirm or strike down a law based upon their own agenda. Activist judges can (and do) find refuge in the modern view, under a potentially fake cloak of constitutionality.

What is perhaps the most interesting aspect of the modern view is a bit of a paradox: if the language and scope of the Constitution is not up to snuff to deal with modern problems, then the logical answer is not to detach from its language, but to instead create a newer, modern constitution. But, you would be hard pressed indeed to find a judge that would prescribe to the modern interpretation and would advocate a new constitution at the same time. This is perhaps the fatal flaw of the modern interpretation: either the Constitution is good enough for today, or it is not. You can't have it both ways, or else you are destined to end up with abusive interpretations of law as we detach from the Constitution and, in effect, have no constitution at all.

Incidentally, traction has gained in the last few years among some justices of the US Supreme Court for turning back to the traditional view, and for some circuits it is becoming more inappropriate to push any limits with a modern view. It is my opinion that this is a healthy and positive trend, one that I hope continues to gain favor in the judicial.

Application to the May 15 Decision

The In re MARRIAGE CASES decision takes a devious track with a twist through the various views to arrive at their conclusion. Indeed the dissenting opinions of the three other justices are quite blistering on this subject.

Essentially, the main thrust of the four justices that struck down the law was that there is no provision of the California Constitution to allow laws to codify intolerance or prejudice against any group as pertains to marriage. This takes a seeming combination of both the narrow-traditional view, and the modern view of interpretation of constitutionality. It takes the narrow-traditional view because the California Constitution does not state that one group can be favored over another (although it doesn't state the opposite, either); and, it takes the modern view because they infer that the California Constitution must have intended an elimination of discrimination or favoritism.

Note that, while the narrow-traditional aspect of their decision doesn't make very much sense, the modern interpretational aspect appears to be a moral and common-sense analysis of the Constitution. There are two problems with it, however:

1. It is dangerous to use the modern interpretation, due to the likelihood of exploitation. In fact, there is plenty of suspicion going around that this was politically motivated, e.g. there are ulterior motives. If that is the case, this handily demonstrates why the modern interpretation is dangerous.
   
2. It hinges on what they believe 'discrimination,' 'favoritism,' and/or 'tolerance' mean, and it is not necessarily true that they used appropriate definitions.

Rule by the People

In the wake of the May 15 decision, an already-forming movement for an amendment to the California Constitution to restrict marriage to its traditional definition gained headway. Once it had the necessary signatures verified by the counties, it became known as Proposition 8, to be voted upon in November 2008.

How to Override the Supreme Court

Interestingly, Proposition 8 contained the exact same language as Proposition 22, except was submitted as a constitutional amendment. Once again, here is the exact language:

Only marriage between a man and a woman is valid and recognized in California.

Retaining the same language was done for a very good reason: to send a clear message to the California Supreme Court that the people of the State of California do not take lightly the implications of what the Court did.

Let me explain. In a mostly representative republic such as the US, laws passed by legislatures deserve to have scrutiny by the courts to protect the people from tyrannical and inappropriate laws, through judicial review. However, I do not believe that any law passed by referendum by the people (such as was the case in Proposition 22) should be subject to the same review. This is not to say that judicial review should be forbidden for a law passed by referendum, but it should be held to a bar that is much more strict before the judicial can strike down such a law.

The terms under which the May 15 decision was made did not constitute a clear-cut consensus, nor does it seem to have adequate explanation with clear language in the California Constitution; as such, it is entirely reasonable to say that the justices who voted to overturn the law stepped out of bounds on a moral issue that was already decided by the people. It is not far-fetched or unprecedented to claim the judicial should have left this issue alone, and let the law stand.

However, reality is reality, and the 4-3 decision left the law stricken from the books. In that situation, there is only one legal recourse for the people: adopt an amendment to the constitution to restore the language, so that there is no way for a judge to skirt around it. They would need to stick it to the judges the only way the people can, and send a clear message that activist judges cannot override the people they are supposed to ultimately serve. Hence, Proposition 8 was born.

I will spend some time explaining the basis for Proposition 8 itself (the marriage issue), as well as the topics tolerance and discrimination as used by both sides of the debate. They deserve a full discussion, and can be treated independently of the In re MARRIAGE CASES decision.