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11/06/2008

Ronald redux: Looking again at George's quip

by Jeremy Hooper

Picture 6-136Back in June, we discovered an interview that Ronald George, the Republican-appointed CA Supreme Court Justice who wrote the majority opinion that granted same-sex couples equal marriage rights, gave to German publication Spiegel. At the time we found one particular quip interesting. Now, in light of Prop 8's apparent passage and the court battle that's about to ensue, we find it doubly interesting. Here, check it out:

SPIEGEL: If a majority of Californians vote to ban gay marriage in a referendum in November, does your decision lose its meaning? Or are they just overturning the word "marriage?"

Ronald George: If this amendment to the constitution passes, it would prevent gay people from being married, but it would not remove this protection that we put in our analysis. ... We're saying that if you look at a classification of gay people, you must treat it just as if you are classifying on the basis of the color of their skin or their religion. And that is probably the most important thing in the whole ruling, even though the population's attention understandably has mostly been on the "M word" of marriage.

As we indicated last time: To us, this really sounds like Chief Justice George is saying something HUGE without coming out and directly saying it. It seems like he's saying that the anti-gay side can try to deny gay people the word marriage all they want, but they will never be able to deny gays and lesbians their equality. After all, the courts found homosexuality to be a suspect classification. So by virtue of the equal protection clause, how can they possibly deny marriage rights to same-sex couples if they are granted to others? What is the other side's argument? It seems impossible to us that a court could, if following the logic of the In re Marriage Cases ruling and the logic of what Chief Justice George is saying here, uphold Proposition 8 or any of the possible arguments that the anti-gay side might use to support it. We see no valid way.

It also seems to support Gloria Allred's argument that because of the aforementioned equal protection clause, a same-sex marriage ban could mean a ban on ALL marriage licensing. Which, let's face it, would (a) be frickin' hysterical, and (b) lead to some quick changes!

The whole George interview is interesting, so be sure to have a look:

INTERVIEW WITH CALIFORNIAN JUDGE RONALD GEORGE [Spiegel Online]

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Your thoughts

I always thought he was talking about preventing opposite-sex couples from getting married. Which would be kind of funny. Kind of.

Posted by: me | Nov 6, 2008 10:29:51 AM

Actually, my eyes drift elsewhere: "If this amendment to the constitution passes, it would prevent gay people from being married [. . .]." I REALLY don't like the sound of that!

Posted by: Steve | Nov 6, 2008 10:40:33 AM

Logically, it sounds totally possible! And yes, it would be funny. It would also send a strong message to the rest of the nation.

Posted by: G-A-Y | Nov 6, 2008 10:40:48 AM

Oh I disagree. Steve -- I think you're looking at the part to literally. I think he's saying that yes, it would prevent gays from marrying, IF left unchallenged. But I think what he says after that gives us every single right and reason to challenge and kill it.

Or as "me" suggested above: Extending it and saying, "okay, if we all have to be equal under the law, then every group of people must be equally banned." It sounds like a stretch -- but this suspect classification thing is not a minor point. It was a MAJOR aspect of this particular ruling.

Posted by: G-A-Y | Nov 6, 2008 10:42:37 AM

I remember reading on another blog that the Supreme Courts rarely like to weigh in on ballots like this before they pass, likely they were sitting back in the hopes that the people would do the right thing and not go against their own damn constitution thus making them look like uneducated jackasses. Sadly though, the voters have decided to prove how stupid they are, and the Supreme Court will likely step in again as they did, getting branded 'activist judges' for merely upholding the constitution, the true will of the people.

Posted by: asdasd | Nov 6, 2008 10:46:40 AM

This is what constitutional scholars have been saying all along and has been lost in the past two days of hand wringing. The real fight is not over whether or not the bigots can get a majority of people to agree with them. The fantastic thing was that the supreme court ruling says that gays are a suspect class. Insert "christians" or "asians" as your suspect group of choice and imagine how legal an amendment denying them the right to marry would be. It wouldn't be. The justices saw this coming but wisely decided not to deny the amendment process. We need to keep progressing, with the lawsuits, protests, letters to the editor, convincing, coming out, pushing back, marching, and raging against awful discrimintation; and in a short time this too will pass.

Posted by: Sykler | Nov 6, 2008 10:52:45 AM

Jeremy, I think that was a very appropriately big "IF." There are just so many politically expedient reasons to let the matter lie, and courage is so rare. I guess I'm becoming increasingly Augustinian the older I get ;-).

Posted by: Steve | Nov 6, 2008 10:57:24 AM

Steve, while I understand the reluctance, I would encourage you to be more optimistic about this one.

Posted by: G-A-Y | Nov 6, 2008 11:02:23 AM

I don't know if a CA High Court Challenge will work...IS there any precedent for overturning an AMENDMENT to a state constitution? If not then it is highly unlikely that the Court will rule in such a manner beneficial to us. It was a miracle that In Re Marriage Cases passed. Sorry I just think without any previous precedent it is unlikely to obtain a ruling in favor of overturning prop 8.

Posted by: Jeff Chang | Nov 6, 2008 11:26:16 AM

Well that brings up another question, Jeff -- whether or not it's an amendment or a revision. As you might be aware, the ACLU is arguing that it's a revision that needs legislature approval (which would be highly unlikely in CA).

This from the ACLU:

"This would not be the first time the court has struck down an improper voter initiative. In 1990, the court stuck down an initiative that would have added a provision to the California Constitution stating that the "Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States." That measure was invalid because it improperly attempted to strip California's courts of their role as independent interpreters of the state's constitution."
http://www.aclu.org/lgbt/relationships/37706prs20081105.html

Posted by: G-A-Y | Nov 6, 2008 11:37:26 AM

My understanding from reading the court decision was that equality would have to be maintained. It is why I always found the Yes on 8 argument that this would overturn the decision strange. The court made it clear that it had the option of legally recognizing only Domestic Partnerships and leaving marriage a strictly religious ceremony with no legal rights attached to it. I read the court decisions should be based on what they feel the legislature would most likely do if they were dealing with therh issue, and since they had twice passed legislation for gay marriage, they ruled in that direction. I for one, would be perfectly happy if the amendment stands but the court decision were now upheld so that only DP's were legally recognized for all couples and marriage were only a religious ceremony. Gay couples could still get married if they so wished by churches that would marry them.

I also liked the court's idea of renaming all legal unions that lasted longer than a certain number of years to an Enduring Union. perhaps attaching more rights to that and encouraging and rewarding people who stay in good relationships.

I guess what I am trying to say, is that the court decision was good reading and was very encouraging to me. I still fought to defeat 8, but had hope even if we ultimately lost that battle.

Posted by: Todd | Nov 6, 2008 12:56:44 PM

Jeff: Sorry to make "a federal case" of this, but yes...

http://www.now.org/nnt/11-96/lesbian.html

In the famous Romer vs. Evans case the US supreme court, no less) did precisely that and set huge legal precedent not only for gays but also any group trying to use a state constitution to strip people of civil rights. And remember, LGBT are not even a "suspect" class in terms of the federal government. There is much to hope for here.

Posted by: Sykler | Nov 6, 2008 1:16:50 PM

At least somebody agrees with us!

We are being treated like a minority.

Unconstitutional!!!!!

Posted by: Trickster's Treat | Nov 6, 2008 2:42:34 PM

This posted on PHB...says it more legally than I can, but I remember reading this more than once preceding the voting:
Longstanding Practice
Generally speaking, courts are loath to decide questions when they don't have to. This is doubly true when constitutional issues are at stake--if a court doesn't have to decide a constitutional issue, it usually won't. This tradition has a pretty sound policy basis, because it preserves judicial resources and judges' political capital, without tying the courts up in adjudicating issues that don't necessarily require their input.
The CA Supreme Court is no different. It has a longstanding practice of not hearing challenges to ballot measures until after the vote has occurred. In all likelihood, the court banks on the possibility that, at least some of the time, it won't have to decide the issue at all, because the ballot measure at issue fails at the polls. On a handful of occasions, the Court has deviated from this practice, but for one reason or another, it decided not to in this case.

So, for better or for worse, the CA supremes said "let's just wait and see if Prop 8 passes, and then we'll take a look at it." Yes, it's super-shitty that, in the meantime, we spent $38M and untold amounts of time, effort, and heartache on fighting this thing. But the court didn't really have any greater reason to intervene on Prop 8 than it would have had on any other ballot measure, which probably explains in part why it chose not to.

I for one have always felt that is EXACTLY WHAT Judge George meant when he said that during that interview. FIGHTING H8 in California

Posted by: LOrion | Nov 6, 2008 4:57:49 PM

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