Friday, November 21, 2008

In which Fosco defends the role of the courts in democracy...

As you've probably heard, the CA Supreme Court has agreed to hear legal challenges to the despicable Prop H8. As the SF Chronicle notes,

the justices asked for written arguments to be submitted through Jan. 21. The court could hold a hearing as early as March, and a ruling would be due 90 days later.
That means that we could have a decision by mid-June.

This is good news, of course (although, as the article notes, there is reason to fear that one of the justices that originally overturned the marriage ban may not be willing to overturn Prop H8). It's also good news in that it could allow gay couples to plan late-June weddings (although, in California, a "June wedding" is possible nine months a year).

You may have noticed the little "teapot tempest" occurring in the comments section of one of Fosco's previous posts on H8. One of Fosco's friends, The Beemaster (come to think of it, why do Fosco and his friends have aliases that sound like supervillains? Count Fosco, The Beemaster, Oz... It's like a whole Legion of Doom thing...)--but anyway, The Beemaster has questioned whether relying on the courts to overturn a ballot initiative is a subversion of democracy. I have to disagree; in fact, I think court review of these kinds of things is actually one of the best features of our system of democracy because it protects the rights of minorities from whims of majorities.

Think about it. The state of Utah is 62% Mormon. That pretty much means that, if Utah allows its state constitution to be revised by a pure majority vote (like CA), the Mormons could decide to do anything they wanted to the non-Mormons. They could revoke suffrage, legalize discrimination, even require non-Mormons to wear special underwear (how ridiculous!). (Disclaimer: I don't know if the Utah constitution can be altered by a majority vote; but that doesn't change our thought experiment).

But, you say, that would never happen because the courts would prevent it (based on either the US or State constitution). Exactly.

Actually, we could even consider this in a CA context. Prop H8 passed with about 5 million votes (approx. 1/7 of the population of CA). Now there are lots of things I bet I could get 5 million Californians to vote for (especially if I had millions of dollars in Mormo cash to help me run a misleading ad campaign). Remember how they had those troubles linked to Black muslims in Oakland (at Your Black Muslim Bakery--no, that's your Black Muslim Bakery, not mine)? I bet I could get 5 million Californians to require Black muslims across the state to register with their local police departments.

Or what about Scientologists? Heck, I bet if I had enough money (enough to outspend the Cruises), I could even get 5 million CA voters to force Scientologists to get freaky facial tattoos!

My point should be ridiculously clear by now: a democracy doesn't work unless there are courts to protect minorities from impositions by the majority. Now, we can argue all day about how the CA Constitution (or the US Constitution) should be interpreted when it comes to marriage equality. Or, to put it a different way, we can argue all day about whether marriage equality is a basic civil right. But I don't think it's worth arguing that this is a question for the courts--this is exactly a question for the courts.

Excuse me while I stumble off of my soapbox to make a gin & tonic.


todd said...

I've been very careful when talking about this issue to make sure I never refer to any court decision or ballot initiative giving or taking away anyone's rights.

Rights aren't given.

This battle is about recognizing the rights that people already possess.

Maybe that's only tangentially related to this post, but I wanted to say it somewhere.

Anonymous said...

Points taken, Fosco.

And to Todd's (sorry -- todd's) post -- I agree wholeheartedly. Without going into every "right" addressed by the constitution, the document generally assumes we already have these rights (endowed by our creator) and limits the government from infringing on these inalienable rights. President-elect Barak Obama said as much in a radio interview in 2001:

"...the constitution is a document of negative liberties; says what the states can't do to you; says what the federal goverment can't do to you; but it doesn't say what the federal government or state government must do on your behalf. And that hasn't shifted and I think one of the tragedies of the civil rights movement was that the civil rights movement became so court focused I think there was a tendency to lose track of the political and organizing activities on the ground that are able to bring about the coalitions of power through which you bring about redistributive change and in some ways we still suffer from that."

(This is from the transcript of a verbal interview. I added the punctuation and any errors are mine.)

The Republicans seized upon the phrase "redistributive change" as part of the "spread the wealth around" issue and missed a great teaching moment that todd mentions: the constitution does not GRANT rights; it recognizes them and limits the government from infringing upon them. Obama considers this "negative liberties" but I think this is an essential part of our heritage.

What frustrates me is when any side of an issue lays claim to popular support, but then rejects the "voice of the people" when that support fails them. If Dad says no, go ask Mom. I think Obama is correct that relying upon the courts alone to advance an agenda can backfire if you ignore public sentiment.

With that said I agree with Fosco's point (I'm taking liberties here) that propositions, being part of the legislative process, must be checked and balanced with the executive and judicial branches, lest simple majority rule makes a mess of things. No branch of government is superior.

It will be an interesting exercise when the CA supreme court is asked to rule on the constitutionality of a proposition which is already a part of that constitution. It could even be FUN if the final decision wouldn't be so devastating to whichever side loses.

The Beemaster

Anonymous said...

Well, all I have to say after all these months of lurking is - villans are hot.

And everytime I type in your blog, I think it's really Fosc Olives, because I love them.

And we love you too!

The Beemaster's Wife - evil villanness (please, please let me wear something low-cut and inappropriate!)

P.S. quit sending the vaginal dryness spell over, you evil drow.

Anonymous said...

Evil drow? Is that redundant?

The Beemaster