Yes, I’m not supposed to be here. But it’s 6:30 on a Sunday morning. I’m in the backyard. Sprinklers are running. The crust for my blackberry cobbler is chilling and I have a couple of things to say. Once I’m done with this post, I’ll be done with WordPress for the day, if not the week. A couple of things happened this week that I care deeply about. One that everybody knows about. The other probably not.
First up … gay marriage is now legal in California. It wasn’t the sweeping decision a lot of people wanted, but in California and a dozen other states, equality has prevailed. The thing that bothers me is that it was decided on a technicality — standing — in a way that was the exact opposite of the exact same issue in the Defense of Marriage Act (DOMA) decided the same day. I’ll try to say this in plain English. Standing is a legal principle that says that a party bringing litigation must have been injured in some way, or have the potential to be injured in some way. That’s the basic concept. There are exceptions and corollaries and tangents to that, but that’s the basic idea behind standing. A real basic example — I can’t sue you if you caused an accident that I wasn’t in, that I didn’t witness, and that did not result in any injury to me.
So, in the DOMA case, there was an issue regarding standing. In the midst of the many appeals such cases have, the Federal government in the form of the Obama Administration announced that it would no longer defend DOMA in those appeals because they agreed with the plaintiffs that DOMA was unconstitutional. Well, if the government (which is the defendant in a case challenging a federal law) and the plaintiffs a gree, then there is no controversy for the courts to decide. The case is dismissed. Not so fast. A group of Congressional Republicans stepped in and defended DOMA. The Supreme Court granted them standing because of their role in passing the legislation. From there, the Supreme Court was able to decide the case on the merits.
With the Prop. 8 case, the Court reached the exact opposite result. With a twist. In Prop. 8, as the case wound through the courts, the Governor and Attorney General of California announced they would not defend the constitutionality of the proposition, which enshrined the opposite sex definition of marriage in the California Constitution. So, if State government was unwilling to defend a state law, there were no defendants. No controversy. Not so fast. The proponents of the initiative that placed Prop. 8 on the ballot stepped in and sought to defend the proposition. The Supreme Court said they didn’t have standing and, therefore, there was no controversy, no reason to reach the merits. The Supreme Court concluded that the initiative’s proponents had no official standing because they had no official connection to the State, no official role in creating or defending the State’s laws, unlike, say, legislators like the Congressional Republicans in the DOMA case. And that’s where the Court fundamentally screwed up and revealed itself as a results oriented body rather than interpreting and enforcing the law consistently.
For 100 years, California, like some other states, has had a robust initiative system which allows the people to place proposed laws on the ballot for the voters to decide. Why? To bypass the Legislature and the Governor. To enact laws they won’t enact. Yes, the initiative process has become monumentally screwed up — California voters are just as good at passing stupid laws as their elected representatives. But, THE ENTIRE POINT of the initiative process is to give the voters of the State of California the ability to make law. The ENTIRE POINT is to bypass the intransigence of elected representatives who won’t do their jobs. So, when the voters pass an initiative — even one that I abhor — and government officials refuse to enforce it or defend it — a position I completely support — the proponents of that initiative should be able to stand in the same position on Prop. 8 as the Congressional Republicans who were allowed to defend DOMA in court. Justice Kennedy is a lifelong California resident. He got this.
Here’s what I think happened in my cynical little mind. The majority decision in the Prop. 8 case was an odd combination of both conservative and liberal justices. The Supreme Court has a few very old people. Scalia is 77. Kennedy is 76. Ginsburg is 80. Breyer is 74. Kennedy has always been viewed as the key vote on the issue of gay marriage, as he typically is on these divisive social issue cases. There has been speculation that other Justices are not sure how he will ultimately vote and that they ruled on the standing issue the way they did to avoid finding out. I think it’s this: they’re jockeying, stalling for time, waiting to see who will blink first. Which one of those oldsters will retire first? And will it be during the Obama administration or will the conservatives, particularly Scalia, retire before the next Presidential election. The Court is so close in its votes and its split, every retirement is critical on issues like this. I think they voted the way they did to kick the can down the road with the hope that the votes for their respective sides will improve before the issue comes back. And, in the course of doing so, they made horrible law.
Second thing I really care about.
This is just stupid. If you are really an atheis, if you are comfortable with that title, you don’t need a monument. Atheism isn’t a religion. It isn’t a set of beliefs. It is the absence of belief. It is … ergh … erecting a monument to atheists makes those who demanded its placement no better than the religious believers they are challenging.