Wednesday, May 27, 2009

Stupid is as stupid does


There is one thing on which I agree with Supreme Court Justice Antonin Scalia: Court opinions should be made and written based on pre-existing texts — US federal or state constitutions, statutes passed by legislatures, and pre-existing opinions, or precedents. He differs from Justice Stephen Breyer who maintains that other texts — non-US legal documents, for example, or even relevant scientific documents — can be used to guide the thinking process in arriving at an opinion, while agreeing with Scalia on the main point that the opinion itself derives from US legal texts. That is why I call Scalia a raging homotextual, Breyer a heterotextual.

(But Scalia is really hoisted by his own petard. He ignores the clear reading of texts in the US Constitution itself as needed to fit his own conservative Catholic beliefs — he is, in fact, one of the most "activist" justices in history. Case in point: The Fourteenth Amendment states "No State shall make or enforce any law which shall [...] deny to any person within its jurisdiction the equal protection of the laws." He goes "outside the text" — to some concept of "originalism" he creates in his own mind — to find that this cannot possibly apply to homosexuals, and why he finds the 1996 case of Romer v. Evans which explicitly identified homosexuals as a "protected class" as "unconstitutional" and should be overturned. What constitutes a "person" — unqualified in the actual text as any normal reader can see — is to be defined narrowly by Scalia, of course.)

Now we have the 175 page opinion from the California Supreme Court:

       courtinfo.ca.gov/opinions/documents/S168047.pdf

The first 140 pages (agreed to by 5 justices) are the majority view that California Proposition 8, which denies the right of gay couples to get a marriage license, stands. The next 10 pages are from a lone justice who concurs with the decision but not the reasoning in the first 140 pages. The last 25 pages are from the sole dissenter. (How can one reconcile Romer v. Evans, which is the US constitutional precedent that identifies homosexuals as a protected class, with the opinion that Proposition 8 does not radically change the California constitution's equal protection provision? Kind of stupid, huh? [See pages 151-175 for the dissenting opinion — the one that avoids the tortured reasoning in the preceding pages.])

The majority opinion (everyone should at least read some of it to get a taste of its Kafkaesque tone) is this, if I could possibly boil it down. The opinion of the court is that:
  • Proposition 8 doesn't really matter anyway, since by statute gay couples can get a civil union license that has all the rights that a marriage license has, based on California's equal protection provision. In other words, Proposition 8 is only about how a single word can be used ("marriage"), and really isn't about anything substantive in a legal sense.
  • Our hands are tied, since the California constitution allows for a simple majority referendum to amend the constitution, and Proposition 8 changed the constitution from what it was one year ago when we originally ruled in favor of gay marriage rights.
On the last point, you get the feeling that the Court is giving the judicial finger* to the California public and legislature: You are the ones who gave us this ridiculous constitution that allows a simple referendum to change it! What are we do?

In other words: Stupid is as stupid does.



* Included in this "finger pointing" is to leave intact a separate class of gay-married couples which, now, no one else can join. Equality? Take that, California public and your stupid constitution.