California’s Proposition 8 and the Double-Edged Sword of Judicial Activism

The Los Angeles Times ran an interesting story last week analyzing why Proposition 8 passed in California. Among other things, the story highlights the strategy by Proposition 8 supporters of trumpeting the alleged long-term effects of allowing gay marriage above and beyond the fact of the marriages themselves,

They were able to focus the debate on their assertion that without the ban, public school children would be indoctrinated into accepting gay marriage against their parents’ wishes, churches would be sanctioned for not performing same-sex weddings and the institution of marriage would be irreparably harmed.

Supporters of gay marriage, along with political leaders including Sen. Dianne Feinstein (D-San Francisco) and the state’s superintendent of public instruction, denounced those messages as scare tactics, but they were not able to sway voters. Preliminary returns showed Proposition 8 passing 52% to 48%.

Repeatedly opponents of Proposition 8 said the idea that courts would force churches to perform same sex marraiges was absurd. But is it really any more absurd that a future court might require churches to perform same sex marraiges than it was that the California Supreme Court found a right to gay marriage in the state’s constitution to begin with?

After all, at one time it was probably considered absurd that courts would require Catholic charities Catholic Charities of Sacramento to cover birth control for their employees, but in 2004 the California Supreme Court ruled that, in fact, they were legally obligated to do so.

Or switch the positions here. In 2004, Michigan was one of 11 states that passed ballot initiatives banning gay marriage. One of the arguments that opponents of that ban made in Michigan was that the ban would have far-reaching effects including making it illegal for government agencies to offer health care benefits, etc. to domestic partners of gays and lesbians. Proponents of the ban ridiculed that claim and said all the initiative would do was ban marriage.

But in 2007, the Michigan Court of Appeals ruled that all domestic partner benefits (whether for heterosexual or homosexual couples) was unconstitutional under the marriage ban language, and earlier this year the Michigan Supreme Court agreed.

That’s the problem with this wave of judicial activism, whether it be for conservative or liberal purposes — it creates a great deal of uncertainty so that claims that a piece of legislation will or will not have a specific effects are largely meaningless.

Would the California Supreme Court require churches to marry gay couples? Almost certainly not, but who is to really say in an era of judicial activism on all sides.

Post Revisions:

18 thoughts on “California’s Proposition 8 and the Double-Edged Sword of Judicial Activism”

  1. All Gay, Lesbian and Gay/Lesbian supporters need to select a week in November when no one spends money on anything except absolute essentials. “It’s about the economy stupid.” We are in a perfect storm situation where we can establish the need for equal opportunities for all by establishing that we are key to this very fragile economy.

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  2. If I recall correctly, the California Supreme Court ruled that Catholic Charities USA (CCUSA) needed to include birth control in their employee health insurance plan, not that all Catholic charities have to pay for birth control.

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  3. On SATURDAY, NOVEMBER 15th 2008 (this coming Saturday), there is going to be a NATIONWIDE PROTEST AGAINST PROPOSITION 8!

    There will be major protests in EVERY major city in the US….but to make this effective, we need AS MANY PEOPLE to show up and be loud and protest AS POSSIBLE!!!

    FIND YOUR PROTEST LOCATION AND TIME HERE:
    http://www.jointheimpact.com/?page_id=2

    ORGANIZE, MOBILE AND REACH OUT!!! SPREAD THE WORD!!!!

    California just voted Yes on Prop 2, which gives caged chickens more rights…It’s time to make sure that ALL PEOPLE, GAY OR STRAIGHT, in this country have EQUAL rights!

    Tell your classmates, friends, family….anyone who has ever cared about gay rights…about civil rights…and equality for ALL….tell them to show up at the protests and speak their minds! Tell them to protest for equal rights for ALL people, and that NO church has any right to dictate our civil liberties!

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  4. Is there any doubt that church and state will never be fully separate? There are repeated examples of the state getting into the middle of church business as noted above in the case of birth control for the church employyes, but it seems that every time the church tries to state and promote its beliefs, then it is harassed. The church and its beliefs are here to stay. It’s becauase we as the church live under a different law than those who do not belong to the church.

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  5. Why do we have to re-define the term marraige in the constitution? Why aren’t civil unions enough?

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  6. If Prop 8 was “about the children” why doesn’t it mention children at all? Why didn’t the first tv ads mention children (you know, the ones about churches being taxed that the courts ruled were 100% false and had to be pulled)? Why didn’t the Prop 8 supporters make a proposition allowing parents to opt out on any education about marriage or homosexuality if it was really “about the children”? Because wasn’t. Not many people would have voted for the “Bigot’s Last Stand” proposition if it had been accurately named.

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  7. The written information is correct. Organization of gays has a destructive purpose to those who oppose homosexual behavior. Highlight that it is a behavior. Neither the state nor the Church encourage divorce, unwanted pregnancies, or elicit sex. The offense is toward church members and thus God Himself. It is a written sin and should not be worn on the sleeve but wrestled with towards self improvement.

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  8. What the gay rights organizations say will not happen, actually did happen in Canada. As a result there is a huge chill in Canada as no one can count of the right to free speech, freedom of association, or in fact any freedoms anymore.

    The Saddleback Church and other persons and groups may have been considering the Canadian experience. Canada has legal gay marriage. In general, Canadian schools have become a tool for teaching the pro gay marriage message. Where schools ignore the issue, activists pursue the schools. In one province, a couple of activists got the legal right to force a school board to teach gay marriage. In another, the public school division cancelled contracts for environmental programs because the site was owned by a group that was against gay marriage. There is a climate of fear.

    Also in Canada, a gay couple brought a discrimination suit against a church hall for not renting the hall to them for their wedding. The suit went before a human rights commission, where the rules of evidence are not followed and the accused is assumed to be guilty until proven otherwise. Just by launching the suit, they cost the accused organization hundreds of thousands of dollars. The gay couple chose a hall with a picture of the Pope in the entrance, so what was that about.

    In Canada, there is no law preventing the government from requiring any marriage officiant to also officiate at gay marriages. There hasn’t been a complaint to date, but once there is, there is no protection for anyone who does not believe in gay marriage.

    Canadian law does not differentiate between active discrimination and those who just don’t agree with gay marriage. Simply disagreeing with gay marriage is considered evidence of discrimination.

    Some people have lost previously held rights. For example, marriage commissioners used to be able to decide whether to participate in a particular wedding, or not. No longer. Now marriage commissioners have to perform gay marriages or not be marriage commissioners.

    At a time when at least 60% of the public was against gay marriage (and some studies found much higher levels were against), only 20% of the Canadian public went to church most Sundays, and and additional 13% went at least once a month. So obviously there was a lack of support among non churchgoers as well. The media tried to blame the churches for what was in fact widespread lack of interest in legalizing gay marriage.

    In Canada, legalizing gay marriage led to misrepresentations from some gay marriage supporters. For example, many authors who were in a position to know better, publicized the number of gay marriages in the province of BC with the implication that gay marriage is popular there (where of course everyone is open and oh so holier than thou). The authors did not subtract the number of marriages where all participants are US citizens (note that there are cruises organized to bring US citizens to Canada to marry). Thus misinformation about the popularity of gay marriage is promoted by many and the media, a lie that could affect public understanding and discussion.

    At first, I thought that we could have both gay marriage and the freedoms that we enjoy as part of a free society. Now that Canada has gay marriage, I see that was not true. Canada lost freedoms, and things are getting worse and worse.

    US citizens need to ask themselves where the laws, regulations, and precedents are to protect precious freedoms. Words are not enough. Just saying something doesn’t get anything done.

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  9. David – thank you for the clarification; I’ll edit the text later to indicate the distinction

    BobA — misses the point: “If Prop 8 was “about the children” why doesn’t it mention children at all?”

    Hmmm…if the California Constitution allows gay marriage, why doesn’t it mention homosexuals at all? The actual text is frequently not much help for non-lawyers in deciding how courts will later operationalize it.

    The Michigan anti-gay marriage amendment doesn’t say anything at all about domestic partnership benefits for either heterosexual or homosexual couples, and yet our state courts have interpreted it as banning both.

    BTW, this is not about whether or not gay marriage should be legal, but how this particular argument is transparently false. Laws routinely have unintended consequences, and you can’t sell folks who are already pissed off at what they see as courts “inventing” a right on the idea that those same courts will be restrained in interpreting that right in the future.

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  10. The Constitution states very clearly that it is illegal for religious institutions to influence public policy and endorse candidates for public office. Yet, religious institutions do so openly and without fear of prosecution. Any organized church that engages in this behavior should be stripped of their tax exempt status. Perhaps we should start with the churches that turned the other cheek when priests were molesting the altar boys.

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  11. What a joke, speculating about the implications of a vote in either way is not “lying” as supporters of gay marriage claim. It’s speculation. Speculation such as that goes on prior to votes all the time.

    Gays and Lesbians and their supporters seem to love to label things with negative termes. For instance, those that oppose them they call “haters” and then if we speculate it’s called lying. I don’t HATE Gays and Lesbians, I just don’t think they should be allowed to marry. Nor do I see this as a civil rights issue where we are talking about a behavior, not a race of people. And the speculation that kindergartners would be taught that gay marriage is acceptable is quite reasonable speculation.

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  12. @lazar wrote:

    “The Constitution states very clearly that it is illegal for religious institutions to influence public policy and endorse candidates for public office.”

    Mind quoting me where in the Constitution it says that religious institutions are not supposed to influence public policy?

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  13. Isn’t marriage first and foremost an ideal of religion? If so, how can people be told they cannot marry? What if they are not Christian? Doesn’t this deny them their own freedom of religion?

    No matter what anyone believes, it seems odd in the USA to put peoples civil rights up for popular vote. If separate but equal had been up for a popular vote, we’d still have slavery in Southern states. It’s supposed to be up to the judicial system to interpret the constitution and determine the rights of the people. Since when does the majority ever protect the rights of the minority?

    I also wonder – if sins according to Scripture are to be banned by law – who will be left not in jail? Why can a conservative push in the state of California raise so much money to gay marriage, but not raise money to help the poor, fight divorce, pre-marital sex, and on and on. Why are one group of sinners targeted by the Church and oppressed by society more than others? I know many more people who have gotten divorced for reasons not allowed in the bible, many more who live together and have children and never marry, than I do gays who want to get married. If this was really about saving marriage, these topics would be up for popular vote, too.

    Jesus ministered to prostitutes and lepers, He came alongside the social outcasts of His time and made them His friends. He never condoned sin, but also never became the oppressor. Reach out to people with love, win hearts for Christ – but don’t make enemies or become pharisees. He who has no sin cast the first stone.

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  14. Eric wrote:

    “Jesus ministered to prostitutes and lepers, He came alongside the social outcasts of His time and made them His friends. He never condoned sin, but also never became the oppressor.”

    Jesus said people who divorced and then remarried were adulterers (see Mark 10:11–12), and clearly saw marriage as a heterosexual union (see Mark 10:6-9) ordained by God.

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  15. People who complain about “judicial activism” don’t understand the balance of power our government is based on. Judges exist to uphold the latter half of the “majority rules, minority rights” principle. If the majority seeks to infringe upon the idividual rights of a minority then it is the duty of the courts to rule against the majority. We don’t have a pure democracy for a very good reason: it is tyranny when the majority can take away rights from the individual because of their own bigoted beliefs.

    Note that I’m not defending any and all judicial activism, but in a case where the judge is clearly only protecting a person’s rights (such as with same sex marriage) then judicial activism is a very good thing.

    “Hmmm…if the California Constitution allows gay marriage, why doesn’t it mention homosexuals at all?”
    To look at it a different way, if the California Constitution disallows gay marriage, why did they need an amendment to ban it?

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  16. God’s viewpoint. His expectation for sexual purity is pretty high. In addition to homosexuality, He also condemns adultery, incest, divorce, and polygamy. During the Sermon on the Mount, looking lustfully at women is also condemned. My point is that God’s standard for what a sexual relationship is infinitely high, and that we’ve all failed it some manner or another. And if we are going to write our national/ moral laws as a reflection of Christianity – then we must outlaw much more than homosexuality. As a society, I don’t think that we are ready to do that with divorce or adultery, so why then the focus on homosexuality? I don’t know for sure, but it does sound like bigotry. I don’t agree with homosexuality, and I do believe that it goes against God’s expectation. But I don’t think that the purpose of our laws is to force people to abide by my faith.

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  17. “People who complain about “judicial activism” don’t understand the balance of power our government is based on. Judges exist to uphold the latter half of the “majority rules, minority rights” principle. If the majority seeks to infringe upon the idividual rights of a minority then it is the duty of the courts to rule against the majority. We don’t have a pure democracy for a very good reason: it is tyranny when the majority can take away rights from the individual because of their own bigoted beliefs.”

    If the country had never had decisions like Dred Scott v. Sanford or Bowers v. Hardwick, one could almost believe that the role of the judiciary is always to expand the rights of minorities.

    But beyond all that, I understand your point but it just reinforces the point I was attempting to make. To the extent that the judiciary is act as a fire brake against majoritarianism, that merely creates incentives among the majority to find ways within the system to ensure their will is not subverted by judges.

    So if I make some argument that says “If we don’t pass this amendment, a court someday might take that a step further and decide X,” it’s a little absurd for an opponent of my amendment to come along and say “oh that would never happen.” Whether you like it or not, courts have and are continuing to make rulings that are largely the result of changing social mores rather than changes in the law itself.

    This has the effect of driving movements to amend Constitutions in an attempt to put certain views beyond judicial review, and it also has gradually politicized how we think about courts.

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  18. Brian – I totally agree with your example of Jesus’ view of sin. That’s why I said He never condoned it (please check my first post)

    The point I was making is that we all are sinners. Should we make a law making adultery illegal, for example? Jesus also said that if a man looks at a woman with lust, he’s committed adultery in his heart (Matthew 5:28). Jesus shows that His definition of adultery goes far beyond this society. I’d wager, by God’s standard, you and I and literally every man and woman on earth are adulterers. Maybe we don’t see ourselves that way, but scripture tells us if we have ever lusted, God does.

    Jesus came to bring light to the darkness, and through Him we live under Grace, not under Law. Christians are supposed to know that we all are sinners, but many of us seem to want to differentiate sin.

    Why aren’t Christians worried about banning premarital sex with state ammendments? After all, that has the potential to (and looking around in our society, often does) produce a life that will then have a divided home if the parents don’t marry. The consequences of their sin can be far more reaching and destructive.

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