Damn Liberals III : Legal Thoughts

A few thoughts on the legal aspect of this. Admittedly, this is off the cuff and I reserve the right to be wrong but:

A favorite meme of the right is to blame the ‘activist’ judges for ‘making laws’. This meme, specifically in this case, shows a poor understanding of the legal make-up of our society.

Yes, California voters passed prop 22, “defining” marriage. However, prop 22 did not amend the constitution of California, rather it altered the state statutes. For those of you keeping score at home, constitution trumps statute.

A state (or its voters) may pass a law stating that you can’t criticize the government. This would be a law, but would be trumped by both the State and Federal constitution which says you can’t do that. In California, getting an amendment to the constitution via initiative is, as you might expect, harder than amending the statutes. You need signatures from 5% of the population to do the latter, 8% for the former.

And, as I’ve pointed out, the rabid right already has (they claim) enough signatures to propose an amendment to the constitution in the next election. So, the California Supreme Court did not ‘make law’, it rules a law was not valid under the state constitution. The Supreme Court did not ‘make’ gay marriage, it said that there is no compelling state interest in having a separate but equal construct for straight and gay couples.

As an aside, the one thing that should annoy the right in this opinion, had they read it, is that the court has held that sexual orientation is a suspect class in California. This is a huge step which, admittedly, the court could have avoided if they wanted to.

One other thing. There has been squabble from the right about appealing this case to the US Supreme Court. However, unless I’m missing something, or the US Supreme Court becomes completely a political arm of the republicans, this won’t happen. There is no federal question here. It is purely a state law question and, as such, there is no jurisdiction for the US Supreme Court to hear an appeal regarding it.