About Me

My photo
This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, March 02, 2013

"Calif. Lawmaker, Scholars Say Proposition 8 Violates Equal Protection, Limits Representation"

First thing, if I will go insane, it will be because of a little thing. Well, maybe not, but damn, those things are muy annoying.
I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.
Thus, Justice Harlan thought state mandated segregation on public accommodations was in part a violation of a republican form of government. Slavery was no more, but a part of the political community were being treated like second class citizens.  Federalist No. 39 set forth the basics of a "republican" form of government as "a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior." There is not to be a "favored class of it."  This is the ideal, one we have are closer to than in 1787, but not there yet.

This brief argues that Prop 8 is problematic in part for the same reason. This is not a novel argument -- the ruling below used Romer v. Evans as a guide and some argued then (though ultimately the ruling rested on equal protection principles, but these things are related) that the proposition there was unconstitutional because it burdened a certain class of citizens from obtaining relief by the normal legislative process. The brief argues that Prop 8 too is an illicit form of legislation, it too burdening a certain group, resulting in a "favored class" having power to obtain legislative relief (without obtaining a constitutional amendment) in the process.  Same sex couples alone cannot obtain marriage legislatively. SSM is not protected in Hawaii, but there the power was left in the hands of the legislature, not giving a "favored group" illegitimately more power there.* Just as in Romer, certain groups in California have to obtain a state amendment first. 

I have wrote a lot about this issue, but as someone noted elsewhere, there is a particularly broad group of people (a chunk of Congress, the President, football players, Walter Dellinger, etc. etc.) wishing to provide their .02 here.  It is not surprising -- basic things are at stake here, not limited (though it is pretty important) the institution of marriage as well as equal respect for the GLBTQ community. Like abortion, this issue opens up a slew of issues, such as religion, morality, republican government, federalism, equality and so on. It is quite likely (I'm led to say, knock on wood) that the USSC will deal with this issue by denying standing in the Prop 8 case, but even beyond DOMA as well, the issues still are there.

Not that I need much to provide my .02. 

---

* Some find it confusing to understand how Prop 8 is not a legitimate means for the people of the state to determine the state supreme court was wrong regarding a specific matter.  But, the people of Hawaii managed to do this without the particularly harsh means done here. This does not mean that the method used there is 100% valid. It does mean it is less offensive.  Thus, the so-called "one state" solution ruling possibility.

No comments:

Post a Comment

Thanks for your .02!