Democracy at the Discretion of the State

June 26, 2013 | 77 comments
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The Supreme Court of the United States of America today informed us that the people are no longer in charge of this country. The Declaration of Independence states that governments derive “their just powers by the consent of the governed.” In the spirit of that principle, 26 states, and many city and local governments, allow citizens to approve legislation directly by popular vote in cases where their legislature does not address their concerns. However, we learned today that if citizens put in place a law that the people in public office don’t happen to like, it can be ignored.

The Supreme Court today explained that citizens may have the authority to put a law in place, but they do not have the authority to defend it in court. When California’s officials chose not to defend Proposition 8 against a constitutionality challenge, citizens stepped up to defend it, but the Court declared that they lack “standing” to participate in the case. The citizens are dependent on their politicians to exercise authority, and if the politicians don’t care to see it exercised in that way, at the slightest breeze, the decision of the people can be waved away.

This is a revolution. Before today, we believed that governments derive their power from the consent of the governed—that is, the people. Or to put it more personally, we believed that the authority of our government depended on us. Today we learned that, as far as our government is concerned, our authority depends on it. What are we going to do about it?

77 Responses to Democracy at the Discretion of the State

  1. Jonathan Green on June 26, 2013 at 9:24 pm

    I’d be interested to see what the lawyers say. Don’t we have some Mormon lawyers on staff around here somewhere?

    I’m also not a lawyer, but I suspect the rulings point to something much less apocalyptic, namely that marriage is a matter for individual states to worry about, and that following the established rules of legal standing creates something of a muddle for the Prop 8 case rather than a definitive ruling on the merits.

  2. JimD on June 26, 2013 at 9:35 pm

    On the other hand, Ben, one could argue that if the elected representatives of the State of California aren’t doing the people’s will, the people will respond appropriately in the next election cycle. It’s the fine line between democracy and republicanism.

    States have all manner of obsolete statutes on the books. Is it incumbent upon the Attorney General to litigate in defense of every single one of them? If not, who makes the call on which laws the AG will fight to keep?

  3. Sam Brunson on June 26, 2013 at 9:42 pm

    Ben, have you read the opinion(s)? Because what happened is a lot less dramatic than that. I assume you’re up in arms about the California case; if the state chose not to appeal the district court ruling, that’s clearly within the realm of prosecutorial discretion. Standing is a very (very) complicated topic, but it’s not at all clear to me that the majority was wrong.

    I confess that I skimmed that opinion, though; for my purposes, the DOMA decision was the more interesting of the two.

  4. Howard on June 26, 2013 at 9:46 pm

    It’s a conservative court, how big a revolution can this be?

  5. AJ on June 26, 2013 at 9:55 pm

    Ben, your question bothers me – it seems very ……. get the torches and pitchforks-ish. It may be just the way it is worded. By “what are we going to do about it” you may simply mean “what can a concerned person do to effect change.”????

  6. Russell Arben Fox on June 26, 2013 at 10:03 pm

    Before today, we believed that governments derive their power from the consent of the governed—that is, the people. Or to put it more personally, we believed that the authority of our government depended on us. Today we learned that, as far as our government is concerned, our authority depends on it. What are we going to do about it?

    You’re a smart man, Ben, so surely what you actually meant here was “Before yesterday.” Because, of course, yesterday the Supreme Court, on the basis of some intensely-important-to-a-tiny-minority-of-activists-but-in-actual-historical-practice-essentially-meaningless verbiage about the equal sovereignty of states, utterly gutted the Voting Rights Act, a law passed by the people’s elected representatives, and regularly (as recently as 2006) renewed by the people’s representatives, which empowers Congress to act to protect the rights of the people in line with the explicit language of the 15th Amendment, which was also ratified by the people. If anything from this past week showed us judicial arrogance and “democracy at the discretion of the state,” it was that decision on Tuesday. So, this is what you actually meant, right?

  7. Eric on June 26, 2013 at 10:12 pm

    Two points that aren’t related:

    1. The decision on standing in the California case, although 5-4, wasn’t decided along ideological lines. The winning coalition was an unusual one.

    2. Even if the people decide something on the ballot, the courts have an obligation to overrule it if it’s unconstitutional, since one reason for a constitution is to limit people’s power. In other words, even voters are subject to the rule of law. (In saying this, I’m making no judgment on the constitutionality of Proposition 8.)

  8. ASM on June 26, 2013 at 10:23 pm

    It’s not a revolution. It’s just another wrinkle in the very twisted history of legal standing doctrine in the federal courts. An odd thing about the two SSM decisions today is that they took positions on standing that are apparently inconsistent. In both cases, the government refused to appeal the verdict for the plaintiffs in the trial court. In both cases, proponents of the law that was struck down took up the appeal. In the Prop 8 case, the Supreme Court said there was no standing for the appeal. But in the DOMA case, they said there was standing. The Court accomplished this strange result by stressing different strands of the standing rules in the different cases. In the Prop 8 case, the Court applied the rigid “Article III standing” rules. In the DOMA case, the Court applied the rules of “prudential standing,” which give the courts more discretion about finding standing.

    Why did they apply different sets of rules in the two different cases? Because that it is what was convenient. They wanted to rule on the merits in the DOMA case, but not in the Prop 8 case. So they found a way to get rid of the Prop 8 case. The standing rules are a really dense thicket that allows all kinds of impenetrable legal maneuvering. That makes it actually quite a convenient tool for the federal courts. When they get a political hot potato that they’re not ready to deal with, getting rid of a case on standing is one way for the courts to avoid getting burned.

    In my view, here’s the bottom line for the concerns expressed in the original post: this was a one-off decision that probably won’t have far-reaching effects on the initiative process. The scenario that led to the standing issue in this case is very unusual. If it arises again, the courts will find a way to do what is politically expedient, and they won’t be bound by the Supreme Court’s precedent in today’s Prop 8 ruling.

  9. David Redden on June 26, 2013 at 10:28 pm

    Mormon lawyer here, though I’m not on staff. This is no revolution. I haven’t read the case, but really, most lawyers paying any attention to it called this one long ago. The Supremes made the right decision based on Court precedent interpreting the constitution’s provision that the federal courts have jurisdiction over “cases and controversies.”

    And really, it’s not as though “the people” are powerless and can be disregarded by elected politicians without consequence. You vote them in, you can vote them out. If the good people of California don’t like the situation, they can vote in politicians who will defend another Prop 8 and then take another crack at it. Problem solved. But the good people of California are unlikely to pass another Prop 8, so where does that leave the whole “We the People” argument?

  10. Jack on June 26, 2013 at 10:29 pm

    A couple of years ago one of the more liberal perma-bloggers here went on at length, demonstrating to us concerned conservatives in plain legal terms how DOMA — let alone Prop 8 — would be very difficult, if not impossible, to overturn.

    Now let’s see what balm will be offered to sooth the right-wing nut-jobs’ fears for the future.

  11. Lorian on June 26, 2013 at 10:38 pm

    Government by consent of the governed has never constituted a right to mob rule by which the rights of minority citizens are to be trampled because the majority says this is what it wants.

  12. Ben H on June 26, 2013 at 10:47 pm

    Jonathan, I suppose you could consider the justices of the Supreme Court to be lawyers . . . Here is what one of them had to say, speaking on behalf of the minority of 4:

    “In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so.” (p14 of the dissenting opinion, the last page of the PDF I linked)

    The court on p15 of its opinion affirms the language of an amicus brief, as though the role it describes for the citizens defending the law were silly: “the proponents apparently have an unelected appointment for an unspecified period of time as defenders of the initiative, however and to whatever extent they choose to defend it.” The funny thing is, though, that the right of self-government is not something one has to win through an election. Rather, it is the reason why we hold elections: because through elections we exercise that right, which we all have inherently, as a moral right. Similarly, the court protests that the citizens are not “agents of the people.” Apparently the court thinks we are only entitled to exercise our rights when we can find someone else to do it for us, which means we can’t do it ourselves, ergo my OP.

    The DOMA case does seem to say that marriage issues are for the states to decide, but the Prop 8 case doesn’t say that. Rather, it declines to address the issue at stake in the case because it says neither it nor the Ninth Circuit had authority to hear the case under the situation, since there weren’t two parties with “standing” to constitute a case in the first place.

    Sam, I have read the opinion, and I am presenting my view in this post that the majority is wrong. As it happens, four SC justices agree with me. Do you have something to say in defense of the five? I also don’t buy that the decision not to defend the law was within the legitimate discretion of the public officials. Everything I know about it indicates that they simply disagreed with the law, which is why the citizens of Californiat needed to hold a direct vote in the first place.

    Russell, the issue of standing was not at stake in the Voting Rights Act case, so if it nullified the power of self-government, it was only implicitly that it did so, whereas this opinion actually says that the people have no standing to defend their authority. So, the Voting Rights Act is a subject for another thread.

  13. David Redden on June 26, 2013 at 11:01 pm

    “Apparently the court thinks we are only entitled to exercise our rights when we can find someone else to do it for us, which means we can’t do it ourselves.”

    Having not read the case, I can nevertheless say confidently that this statement is not correct.

  14. Ben H on June 26, 2013 at 11:11 pm

    ASM, I disagree that this decision does not matter much. Precedent opens certain doors and closes others for determining future cases. Of course, judges will saw through the wall anyway sometimes, but this decision is bad principle and bad for the future of democracy. Unfortunately, though, I basically agree with you that the court’s reasoning in the two cases is inconsistent, opportunistic, and indefensible in just the sort of way that opportunistic, inconsistent reasoning tends to be. As common as this sort of crass maneuvering may be, the judicial system does constrain it in some ways, as we need it to.

    David Ridden, I do think the people of California should be taking their officials to court for dereliction of duty, but that is not enough to clean up this mess. In practical terms, this situation is somewhat unusual, so it is not as though democracy has been blown to smithereens by this verdict alone. Combined with the conspicuous refusal of both state and federal officials to do their job of defending and enforcing laws lately, though, we are seeing a deep threat to democracy and even to the rule of law these days, a government of men and not of laws.

    The additional problem here comes in if the Court is going to decide a substantive legal question (whether or not Prop 8 is struck down) based on standing at one level and not another. If what we have is simply a case of officials marching to their own drum, that is one thing. That can be fixed through an election, or through taking individuals to court for misusing their authority or whatever. It is another thing if the Court makes a binding legal decision for the indefinite future by selectively yanking the standing of the appellant at the level where they want the decision to stand. Logically, it looks to me like the original case, from which the Ninth Circuit was hearing an appeal, should also be invalidated on the same basis: there was never any case because there weren’t two parties. That would leave Prop 8 standing. But most commentators seem to assume that the Supremes can invalidate the Ninth Circuit ruling while leaving the lower court’s ruling to stand (striking Prop 8 down as contrary to the Fourteenth Amendment), which would be nonsensical.

  15. Ben H on June 26, 2013 at 11:14 pm

    David Redden, I’ve pointed out where the court says what I’m saying it says, and where four SC justices agree with me. If you have a contrary argument, let’s hear it. If you don’t have an argument, your confidence is not very interesting.

  16. palerobber on June 26, 2013 at 11:19 pm

    yeah, what were Roberts and Scalia thinking?

  17. Sam Brunson on June 26, 2013 at 11:21 pm

    Ben, the VRA iraises the exact issue here. Clearly these we’re tough cases, or they wouldn’t have made the Supreme Court. But the majority decisions were the better decisions in both cases. You may not buy that prosecutorial discretion is within the legitimate discretion of public officials, but you wrong. They do it all the time. Every time a prosecutor decides not to prosecute, or plea bargain, she’s exercising prosecutorial discretion. The IRS frequently does this when, for example, it doesn’t remove the tax exemption for churches that participate in, e.g. Pulpit Freedom Sunday. Many states have anti-adultery laws in the books, but prosecutors regularly choose not to enforce it. As a matter both of policy and of allocation of scarce resources, this flexibility is necessary.

    And standing is a tough doctrine. What the majority ruled fits comfortably within the standing doctrines I’m familiar with; if you want an in-depth analysis of standing, though, I’m not your man.

  18. ASM on June 26, 2013 at 11:50 pm

    By design, our system insulates the courts from politics, but not completely. To some extent the courts are political, and that is not a bad thing. It’s the reality of being part of a political system. The political judgment the Court made in the Prop 8 case was to put off a ruling on whether the Constitution requires the states to allow same-sex marriage. In effect, they decided that it is too soon for the courts to foreclose the political process on this issue. They knew that their ruling would have the procedural effect of making an initiative amendment indefensible in this case. They decided that the political importance of the SSM question outweighed the harm that their decision might do to initiative laws. This is because the harm is relatively easy to undo.

    The remarkable complexity of standing doctrine means that when this issue comes up again – if it comes up again – it will be quite easy for the courts to find a way around today’s precedent in the Prop 8 case. If it starts to look like the hitherto unknown process of nullifying initiatives by persuading the government not to defend them is going to become common, then it’s very likely that the political pressure on the courts will move in the other direction, and today’s standing precedent will be miraculously waved away.

    Sam Brunson: I disagree that this issue can be reduced to a question of prosecutorial discretion. Ben Huff is correct that in this case, the government’s exercise of discretion not to appeal creates a vexing problem. It does seem wrong that an initiative can be nullified without an appeal. However, Ben’s predictions of doom are vastly overstated considering the political realities.

  19. David Redden on June 26, 2013 at 11:59 pm

    Ben, the portion of the dissent you quoted plainly does not stand for the proposition you seek to draw from it. You are either being unclear, engaging in hyperbole, or reading it wrong. People are still free to exercise and enforce their rights without finding someone to do it for them.

    As to your comment about how the decision of the district court should be invalidated for lack of standing, your off-base there. The government and the plaintiff were proper parties to the suit; the plaintiff because he or she was denied the right to marry, and the state because it denied that right pursuant to the California constitution as amended by prop 8. The group that appealed was not the plaintiff or the state, and therefore had no standing to appeal. That’s about the end of the analysis as far as I can tell. You can not like the outcome, but the analysis isn’t difficult or frankly very controversial. The twist is in California’s decision not to appeal, which was a decision the elected leaders get to make. And if you’re in California, you get to vote them out if you don’t like it and take another crack at it with a new set of politicians.

  20. Ben H on June 27, 2013 at 12:20 am

    ASM, there was a simple way for the court to not foreclose the political process on marriage, which it invoked in the case of DOMA: saying that it is not within the authority of the federal government to define marriage. Wresting or selectively ignoring laws and basic principles of legitimate government is bad. Now, granted, it is not obvious whether or not it is or should be within the authority of the federal government to define marriage. I think there are interesting arguments to be made on both sides, and I’m not sure I wish they had taken this route with the Prop 8 case. Even with the DOMA case, they worked in enough special case language to leave observers seriously puzzled about how far the limits of federal power are the point.

    I suppose one way to read this pair is to say that the Court decided that their principled verdicts probably would be plowed aside by a political process in the long run anyway if they made any very decisive rulings in these cases, because the fact is that public opinion is deeply divided and in flux. Both court opinions are strained and incoherent enough that one could read them both as energetic efforts to avoid doing anything very decisive. The arguments are so sketchy they almost seem designed to be easily demolished later . . . or maybe the judges really are as confused as the opinions of the court . . .

  21. Ben H on June 27, 2013 at 12:33 am

    David Redden (#19), my understanding is that the state officials chose not to contest from the start. Are you saying that in the first case there can be a court verdict even if the state doesn’t show up? If we’re talking about a trial court, like a motorist who doesn’t show up for his speeding ticket court date, that makes sense, but if we’re deciding a policy question for an entire state, for years to come, that is loony.

    You say that “People are still free to exercise and enforce their rights without finding someone to do it for them,” but what the SC did in this case was precisely tell these people that they could not. It said they had no business being in court because only the state officials had the right to defend the law.

  22. Casey on June 27, 2013 at 12:43 am

    People have been declaring the American experiment doomed from the minute the ink on the Constitution dried. Our history is full of troubling incidents, and there are more than a few things that bother us today depending on our ideological predispositions, yet somehow America has kept muddling along in spite of it all. Somehow I doubt that this will be the Thing That Changes Everything. We’ll get by, promise.

  23. ASM on June 27, 2013 at 12:57 am

    I don’t believe that the two cases are strained and incoherent. They make good sense as a way of acknowledging the trend toward popular acceptance of same-sex marriage without imposing that change by judicial fiat.

    To make any ruling on the merits in Perry would tilt the field. A ruling that it is not within the authority of the federal government to define marriage would be a ruling on the merits – as you implicitly acknowledge when you say that this is a debatable question. That ruling would make it much more difficult for the Court eventually to find a constitutional right to same-sex marriage. They just want to leave the issue open for now.

    I think there are plenty of legal issues to mull over here, especially in the DOMA case. But I don’t think that confusion is one of the problems. These two cases show a Court that is very deliberately inching its way forward on a highly volatile issue.

    You write, “Wresting or selectively ignoring laws and basic principles of legitimate government is bad.” Okay, I think so too. But the reality of the law is that it happens all the time in court cases, and sometimes it’s unavoidable. The art of the law is often in minimizing the damage – something that I think Perry does surprisingly well. Like some other commenters in this thread, I am much more disturbed about the Voting Rights Act case, which selectively ignores laws and basic principles of government in a way that could do deep, generational damage to our system.

  24. Lorian on June 27, 2013 at 1:17 am

    Ben H. #14 –

    It is another thing if the Court makes a binding legal decision for the indefinite future by selectively yanking the standing of the appellant at the level where they want the decision to stand. Logically, it looks to me like the original case, from which the Ninth Circuit was hearing an appeal, should also be invalidated on the same basis: there was never any case because there weren’t two parties. That would leave Prop 8 standing. But most commentators seem to assume that the Supremes can invalidate the Ninth Circuit ruling while leaving the lower court’s ruling to stand (striking Prop 8 down as contrary to the Fourteenth Amendment), which would be nonsensical.

    Ben, as I recall, “Protect Marriage”/”NOM” were not the original defenders of Prop 8 in the Walker court. Schwarzenegger was the original named defendant in Perry v. Schwarzenegger, as governor of the state. It was not until after the Walker trial that the governor and attorney general refused to defend Prop 8 further, and refused to appeal Walker’s decision. It was at that point that “Protect Marriage” took over the appeals process, and therefore SCOTUS only vacated the 9th Circuit’s decision on the basis of standing. Those who defended Prop 8 in Walker’s court had legal standing to do so. The only way for someone with legal standing to appeal Walker’s decision would be for “Protect Marriage” or “NOM” to find a way to compel the state of California to appeal Walker’s ruling. Or for some third party to prove that they have been demonstrably harmed by the state permitting same-sex couples to marry.

  25. Peter LLC on June 27, 2013 at 1:31 am

    “In the spirit of that principle, 26 states [...] allow citizens to approve legislation directly by popular vote in cases where their legislature does not address their concerns.”

    So what about the other 24 states, not to mention the D of C, where the people are unable to do so in the first place?

  26. Lorian on June 27, 2013 at 1:48 am

    Ben said:

    However, we learned today that if citizens put in place a law that the people in public office don’t happen to like, it can be ignored.

    No, what we learned today is that if citizens *or* legislators put in place a law which disenfranchises a group of citizens solely as a means of expressing moral disapproval of the group in question, such a law will be found to be in conflict with the concepts of fairness and equal protection as defined by the constitution. In the case of Prop 8, that determination was made by Judge Walker. In the case of DOMA, it was made by SCOTUS.

    That IS the job of the judiciary. That’s why we have a balance of powers — so that the people and their representatives cannot enact laws which infringe upon the rights of their fellow citizens without due cause.

  27. David Redden on June 27, 2013 at 8:49 am

    Ben (#21), the state showed up and were a party to the suit, but chose not to defend the law. As you noted, a party can appear in court and present no defense. It appears the rule is no different for state governments, though I’m sure it’s an unconventional approach. I suppose we’ll have to disagree as to whether it’s “loony.”

    I have a couple comments about your second paragraph. First, the Court did not say the people had no business being in court to defend any and every law. The Court decided that, under the specific circumstances of the case, only the state had standing under the Constitution to appeal the district court’s decision.

    Second, the fact that a group of citizens did not have standing to appeal a particular federal district court ruling against their state does not equate to nobody being able to exercise and enforce their rights without finding somebody else to do it. For example, if an employer fires me specifically because I am Mormon, I can still, even after this decision, sue the employer pro se for a violation of Title VII, i.e., I can enforce my rights without somebody else doing it for me. The ruling is far narrower than you make it out to be.

    The only new issue of law that I could see in this case was whether a state can designate a private party as its representative for purposes of appealing an adverse ruling in district court, thereby granting that private party standing under the Federal Constitution. The majority said said no. But that doesn’t mean a person cannot exercise or enforce their rights themselves.

  28. Last Lemming on June 27, 2013 at 9:00 am

    All I know is that if I’m Jerry Brown or Kamela Harris this morning, I am going through every initiative previously passed with which I disagree (and which hasn’t already been litigated to death, like Prop 13) and finding a party willing to challenge the law in a friendly federal court, knowing that a favorable ruling overturns the law and nobody has standing to appeal except me. Great work if you can get it.

  29. PM on June 27, 2013 at 9:28 am

    Ben, I almost agreed with what you are saying, but what do the majority of the people of California think now about Prop 8? Doesn’t this outcome prevent the public sentiment in 2008 from overruling public sentiment in 2013, thus giving the voice of the people today more authority than the voice of the people in the past?

  30. Steve Smith on June 27, 2013 at 9:55 am

    Shocked and dismayed at the post, Ben. Cases of civil rights for minorities aren’t to be decided by legislation, but by the courts. Segregation had majority support in the south for the period between the Civil War and the 1950s. Were it not for court intervention declaring segregation to be unjust and unconstitutional, it may arguably persist in some states to this day. Whether or not we can discriminate against gays and gay relationships is not a matter to be decided by the public. It’s unjust and should be deemed unconstitutional for the courts to discriminate against gays in any way, shape, or form. Their romantic relationships are just as valid as those between straights, and by denying them what should be their right to seal their relationships with a person of the same gender in a marriage contract, we treat them as inferiors.

  31. Steve Smith on June 27, 2013 at 10:00 am

    Also, you suggest that democracy was trampled. The odd thing is that if we were to bring gay marriage to a nation-wide vote today, based on the polls, it would most likely be made legal throughout the US. So we could argue that states rights and republicanism/indirect democracy are trampling direct democracy.

  32. Lorian on June 27, 2013 at 10:14 am

    Lemming, it’s not a question of “finding a party willing” to challenge laws in federal court. Prop 8 violated the civil rights of a percentage of the state’s citizens. It was challenged in federal court because it caused real harm to real people, and those people brought suit. Nobody drummed up any kangaroo court just to try to get rid of a popular law which hurt no one but was for some reason distasteful to the state administration, as your post suggests.

  33. JT on June 27, 2013 at 10:39 am

    Regardless of where one stands on SSM or how the Supreme Court currently interprets Article III standing, the effect is an interesting one: state referendums have been effectively rendered meaningless.

    If the people are passing a law because the state is unwilling to act on it, and then (surprise!) the state doesn’t act on it after it is passed, the people now have no recourse. To wait until the next election to change the elected officials is to defeat the purpose of having the referendum in the first place. The referendum is thus rendered meaningless.

    As an attorney, I understand that the Supreme Court is bound by Article III and its associated jurisprudence (though the necessity of their decision in this particular case is debatable, as evidenced by the 5-4 split), but I can’t help but feel that the long-term public policy implications of this decision (unrelated to SSM) are undesirable.

  34. Jax on June 27, 2013 at 10:49 am

    No, what we learned today is that if citizens *or* legislators put in place a law which disenfranchises a group of citizens solely as a means of expressing moral disapproval of the group in question, such a law will be found to be in conflict with the concepts of fairness and equal protection as defined by the constitution.

    Government by consent of the governed has never constituted a right to mob rule by which the rights of minority citizens are to be trampled because the majority says this is what it wants.

    That’s why we have a balance of powers — so that the people and their representatives cannot enact laws which infringe upon the rights of their fellow citizens without due cause.

    Also, you suggest that democracy was trampled. The odd thing is that if we were to bring gay marriage to a nation-wide vote today, based on the polls, it would most likely be made legal throughout the US. So we could argue that states rights and republicanism/indirect democracy are trampling direct democracy.

    I love how some of you are saying, “it’s the right decision because the majority of people favor it” while other are saying, “it’s the right decision because it protects the minority from the majority.” Seemed slightly humorous to me… :)

    For those who I quoted here saying basically,”the court has to protect the rights of the minority no matter how unpopular they are, or how repugnant their ‘right’ seems…” I agree!!! I hope you keep the same attitude when we talk about things like guns, because no matter how much of a majority favors taking them away, or how repugnant they might seem to you, the right of the minority (gun owners) is explicitly protected in the Constitution.

    On topic though, I do find it disturbing that the people of a state don’t have standing to defend their own laws. In any case where “the state” can have standing, it is the citizenry that pay the fines/endure the restrictions/etc. and the citizenry should have the standing to stand for “the state”. Without the citizenry there would be no “state”. This ruling makes “the state” a separate entity from the people… and IMO it should not be separate, have separate rules/abilities that don’t apply to its citizens. I understand their is legal precedent for that separateness, but that doesn’t mean it ought to be that way.

  35. David Redden on June 27, 2013 at 11:09 am

    JT (33) & Jax (34), what you say is reasonable. What Ben was saying, not so much. Both Lujan and Perry put the policy arguments for and against the current state of Sup. Ct. “standing” precedent in sharp relief, but only if they’re first understood.

    Regarding Perry specifically, if the state wants to give its citizens the okay to defend a citizen’s initiative in federal court in place of the state, it seems to me it ought to be okay under the Federal Constitution too.

  36. Jax on June 27, 2013 at 11:47 am

    David, I think Ben is quite right about everything but the timing. The ruling yesterday wasn’t a turning point, just and extension of the continued loss of freedom in the country.

    http://rt.com/usa/california-man-13-prison-banks-237/

    This link will tell you that the judge has ordered the lawyer NOT to mention “the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,”

    I started telling people quite a few years ago what Ben said in the OP – that this country is no longer one where our rights are inherent and the gov’t can’t take them from you, but one where you are free only if the gov’t allows you to be.

    And that is terrifying!

  37. Chris Kimball on June 27, 2013 at 12:04 pm

    The initiative process suggests to some that a one-time bare majority can do anything. But that’s just not true. In order for an initiative to work in practice in the real world you need a majority vote for a proposition that’s within bounds (a constitutional question in a federal system) and the majority vote has to be durable (so that elected officials will stand for the proposition, so that the proposition still seems supported years after the initial vote when questions and challenges arise, and so that the proposition isn’t reversed by a subsequent initiative). It has been apparent for some years (and some would say from the beginning) that Prop 8 would not meet these requirements. Without regard to the rights or wrongs of yesterday’s 5-4 decision in the Supreme Court, Prop 8 was coming down.

  38. Cameron N on June 27, 2013 at 3:48 pm

    Will the Lord look upon the US much differently today than 2 days ago? Not really. People are still sinning, be it heterosexually or homosexually. It’s merely an official milestone (although I agree technically the ruling isn’t that bad, but the media will leverage it to further sway public opinion).

  39. Raymond Takashi Swenson on June 27, 2013 at 4:00 pm

    I agree with Ben. Look, the California Supreme Court, basically the same guys whose earlier decision ordering the state to allow samer sex marriage was overturned by the Proposition 8 amendment to the state constitution, told the US Court of Appeals for the 9th Circuit that the people who sponsored the initiative were fully authorized under state law to represent the State of California for the purpose of defending the amendment to the state constitution in this lawsuit. If the Supreme Court believes in Federalism and staying out of the states’ business, why should it be overruling the California supreme court on an issue of STATE government authority?

    The whole purpose of initiatives is that it is an alternative way to legislate when the governor and legislature are not responsive to the will of the citizens on a particular issue. When they are elected, it is for a whole bunch of reasons separate from their views on marriage, or the environment, so when there is one narrow issue at stake, initiatives allow democracy to percolate up into the law. But the Supreme Court majority here has gutted the ability of any initiative-enacted law or constitutional amendment to be given legal effect, because ANYONE who claims to be aggreieved has “standing” to sue, but NOBODY who claims to be individually aggrieved by letting the plaintiff win can ever get a day in court!

    There are LOTS of initiatives that are not liked by elected officials. They don’t like having their powers limited by new laws. Imagine if Proposition 13, the California initiative that limited increases in property tax assessments, had been thrown out on a simiilar basis, it would have made a significant difference, because almost no elected official wanted to be limited in the ability to raise taxes.

    This is not just an issue with Proposition 8, but with ALL initiatives on ANY topic. From here on out, a majority vote of the people means NOTHING, because ONE plaintiff plus ONE judge can overrule them all. When democracy is frustrated, it invites disresepct and cynicism among citizens, of the kind that was rampant in the old Soviet Union. It says the government is lawless, and loses all moral authority to demand lawful conduct from its citizens.

    I assume that the weird coalition of people who went along with this ruling were justices who didn’t want to have to rule on the merits of the decision of the district court that claimed Proposition 8 offended the US Constitution. But in avoiding the question, the collateral damage has been significant. And it also means that any new Prop 8 initiative has a snowball’s chance in hell of being effective, even after a majority votes it in, if the governor and Attorney General don’t like it.

    Both the cases decided yesterday are inviting legal chaos and animosity and a breakdown of civil order. The proper response of the court would have been that the topic of marriage and the thousand laws that make distinctions because of it are complex and involve all sorts of public and private interests, and that the courts cannot weigh all of those interests in the context of an adversarial hearing, so that democratic processes involving debate and persuasion which can adapt as peoples’ minds change should be the path used to accomplish changes in laws both state and federal. Unfortunately, the court is losing its moral authority and the ability to persuade people that they should respect its decisions as a pure argument from authority.

  40. Jax on June 27, 2013 at 5:54 pm

    Will the Lord look upon the US much differently today than 2 days ago?

    Probably not. 2 days ago our culture was disgusting and getting worse, and today it still is. I think this http://www.youtube.com/watch?v=eUJE9YfsbNQ probably had more an impact on his outlook for us than the SCOTUS decisions did. Because booing God just doesn’t seem like a good thing…. does it?

  41. Ben H on June 27, 2013 at 6:37 pm

    Jax and JT have pretty well responded to your objections, David Redden, so I don’t think I need to add anything there.

    ASM, you seem to think that the job of the court is to put its finger to the wind, guesstimate what public opinion wants our laws to be like, conjure up a legal formula that roughly approximates that, and then improvise some fiction to make it look like what public opinion wants really should be the law of the land. Then, a few years later, to test the wind again and improvise some new fiction to justify laws in keeping with a new climate of public opinion. Let me just say that picture bears no relationship to what the court is supposed to do. Politicians are supposed to be the ones putting their fingers to the wind. If judges have nothing else to offer, then let’s fire the lot. Also, along with it we would be dispensing with the idea of laws, as well. Laws are just so much rhetoric if they can be made up as we go. I’d rather have a good, honest, Chavez-style dictator!

    RTS (#39), as I think about it longer, I am inclined to agree with you that what happened is: the conservative-leaning folks on the court sized up the situation and predicted that a ruling “on the merits” would likely deliver us a new Roe v. Wade. Something rather like that thought is expressed directly in Scalia’s dissent from the DOMA ruling. Realizing that on an issue like this, a significant chunk of the court as currently composed is content to fabricate rhetoric to dress up their personal prejudices, they saw an opportunity to prevent a sweeping ruling, for now, by rejecting the appeal based on standing. In that situation, I can see this being a sensible and wise path. But either way, these rulings definitely undermine the credibility of the court, and the credibility of our government generally is rather tenuous already . . .

  42. Lorian on June 27, 2013 at 6:47 pm

    Jax #35

    For those who I quoted here saying basically,”the court has to protect the rights of the minority no matter how unpopular they are, or how repugnant their ‘right’ seems…” I agree!!! I hope you keep the same attitude when we talk about things like guns, because no matter how much of a majority favors taking them away, or how repugnant they might seem to you, the right of the minority (gun owners) is explicitly protected in the Constitution.

    You missed a crucial point in this discussion, Jax. The court has to protect the rights of the minority (no matter how unpopular or repugnant) insofar as those rights are unduly infringed by the majority based upon reasoning solely related to prejudice or religious bias.

    The majority has every right to infringe upon the rights of the minority to engage in practices which are demonstrably harmful to innocent third parties (such as driving drunk, blowing cigarette smoke into the air in public restaurants and businesses, beating children). It is unconstitutional for the majority to deny a right to a minority *only* if that right does not infringe upon the rights of other people and is being denied simply because the majority disapproves of the minority for reasons such as “moral repugnance,” racial bias, or other similar prejudices.

    That’s why we can pass laws against drunk driving and public drunkenness, but not (successfully, anyway) completely ban all consumption of alcohol. It’s why we allow people to have cars, but require them to demonstrate competency before being permitted to drive them, and why we can refuse them the right to drive the car at unsafe speeds on public roads.

    What we cannot do is refuse someone the right to own a car or consume an alcoholic beverage because they are black, or Jewish, or atheist, or female, or simply because we don’t like them.

  43. Steve Smith on June 27, 2013 at 6:47 pm

    A lot of overreaction, paranoia, and comparing of apples to oranges on this board.

    1) Allowing the option of marriage to an increasing number of gay couples and expanding equal legal protection to them sounds more like the government providing its citizens with an increase of freedoms and legal protections than the government depriving people of freedom. How in the world does legalized gay marriage affect your freedoms at all? I don’t understand how yesterday’s rulings and a guy being arrested for sidewalk chalk vandalism are at all comparable.

    2) Not all state referendums are created equal. And the vast majority of laws passed by public referendum will continue to be upheld by the courts. But Prop 8 touched on a civil rights issue that should not have been able to have been decided by a public referendum with a majority vote. It would be like me deciding to bring a proposition to the ballot in all states that allowed it in the early 1980s, a time when more people “disapproved than approved” of interracial marriages (http://www.gallup.com/poll/149390/record-high-approve-black-white-marriages.aspx), that proposed that anti-miscegenation laws be reinstated. Such a proposition probably would have passed in a large number of states. But it also probably would have been challenged in the courts and declared unconstitutional, need I explain why?

    3) This idea that the will of the people was overridden by dictatorial judges doesn’t hold water (and the comparison to the Soviet Union; oh please, that is beyond hyperbole). Gay marriage is a matter of civil rights that should be legalized regardless of whether or not the majority supports it, because anything short of that is discriminatory, plain and simple. But if you are decrying yesterday’s ruling on Prop 8 simply on the basis of the courts supposedly ignoring the majority’s vote, as the OP is doing, shouldn’t you now be championing the legalization of gay marriage based on recent opinion polls on gay marriage? Oh the irony.

  44. Lorian on June 27, 2013 at 6:48 pm

    Whoops, sorry for the erroneous bolding. Goofed up my tags.

  45. Lorian on June 27, 2013 at 6:50 pm

    Steve Smith #43 – So well said, Steve. Thank you.

  46. Jax on June 27, 2013 at 7:14 pm

    But if you are decrying yesterday’s ruling on Prop 8 simply on the basis of the courts supposedly ignoring the majority’s vote, as the OP is doing, shouldn’t you now be championing the legalization of gay marriage based on recent opinion polls on gay marriage?

    Polls makes guesses about the will of the citizens… but votes actually SHOW it. That’s why we don’t choose a president on polls!

    I don’t understand how yesterday’s rulings and a guy being arrested for sidewalk chalk vandalism are at all comparable.

    The point of the OP was that our Federal gov’t has taken the position that we have freedom only at it’s discretion. Or put another way, that gov’t grants us our freedoms; instead of us providing gov’t with it’s authority. The SCOTUS decision not to hear the Prop. 8 case because of standing says that “the people” don’t have the right to represent “the people”, only the gov’t can do that. In the sidewalk chalk case the judge gave direction to the defendent’s attorney that he was not allowed to argue in his clients defense for ” “the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,” … because apparently a judge can tell a lawyer and citizen that he isn’t entitled to 1st amendment protection.

    They both have the same element of the gov’t telling us in essence “you can have the rights/freedoms that I say you can have”. That is problematic and terrifying. It really seems as no big deal to most people because it is just one more step in the slow march away from individual liberty. What is terrifying is that we’ve marched so far that nobody cares whether they are free or not (and largely couldn’t even recognize it), as long as at the moment they are not the target.

  47. Steve Smith on June 27, 2013 at 7:18 pm

    Thanks Lorian. As always I thoroughly enjoy your comments. I would like to see a response to them from Ben and the other prominent commenters on the T&S blog. But alas, I think that they fear that your powers of reasoning would overwhelm them.

  48. Mtnmarty on June 27, 2013 at 7:25 pm

    Ben Huff,

    I think the rule of law is in jeopardy because significant shares of the population do not agree on the meaning of legally important words.

    Laws are written with words and if there is no agreement as to the meaning of those words then there can’t be a stable rule of law. The increasing number of 5-4 decisions and also decisions that are clearly based on politics and worldview, rather than the particulars of a case, reflect this difference in worldview. Some people may be intentionally misunderstanding terms but I think that there is plenty of good faith disagreement about the meaning of the words also.

    A short list: arms, assembly, cruel, speech, privacy, unreasonable, liberty, etc.

    Now the lawyers may argue that these are decided by precedent but again that is precedent in words and completely circular in that only if one already understands the words can one understand the precedent.

    As for the significance of the California decision, there is still a recall process available in California.

  49. Ben H on June 27, 2013 at 7:28 pm

    Lorian and Steve Smith, your comments on majority versus minority rights are not relevant to the OP. I haven’t said anything here about the substantive question of what marriage should be like, or what our laws about marriage should be like. I have opinions, but that is a subject for another thread.

    The SCOTUS specifically declined to consider those substantive questions in its ruling on Prop 8. If that is news to you, you need to read a little more news, or perhaps the court opinion itself, which I linked in the OP. So, I’m not interested in pursuing those issues in this thread. This ruling is not really about Prop 8, because the content of Prop 8 never came into it. Rather, Prop 8 was the occasion for a question of whether citizens can defend a law put in place through ballot initiative when the public officials refuse to defend it, in federal court. The SCOTUS decided that they may be able to do so in California courts, but not in federal courts. Since they decided that, there was no case for them to hear, so they had nothing to say about Prop 8.

    Since it is not relevant to this court decision, please leave aside the justice or injustice of defining marriage a certain way for purposes of this thread. Someone at T&S is sure to bring it up again sooner or later.

  50. Lorian on June 27, 2013 at 7:36 pm

    Steve – :blushing:

    Jax #46 – We *give* government the right to restrict our freedoms in the interest of maintaining a civil society. We grant the premise that unrestricted freedoms not subject to the rule of law means anarchy, rule by brute force. Government (“We the people,” remember) is a tool which we use to ensure that we each have the maximum possible level of rights and freedoms without unduly infringing upon the rights and freedoms of those around us. We agree that, in order to be protected from the infringement of our *own* rights to life, liberty, property, etc., we will be subject to government’s restriction of our rights at the outer edges where they encroach upon other’s rights to life, liberty, property, etc.

    I see nothing particularly scary or threatening in this voluntary surrender of the right act as we please with no external restriction placed upon us. It is among the most basic and pervasive of social contracts, and without it, it’s terribly unlikely that either you or I would be alive right now to have this conversation. Or, we would have all been so busy standing guard over our personal horde of bananas and water that no one would have had time or energy to invent the internet.

  51. ASM on June 27, 2013 at 7:41 pm

    Ben, your comment in #41 is such a ridiculous caricature of what I wrote that there is probably no point in trying to correct it in detail. Assuming you made your comment in good faith, I will only say this: laws and judges function in a much more complex and interesting way than you seem to think. Adding some realism and pragmatism to your understanding of the legal system will not force you to give up your ideals. Instead, your capacity to see opportunities for change and improvement will be strengthened. You will understand not only what might be done in a perfect world, but what is possible in the one that actually exists.

  52. Chris on June 27, 2013 at 7:45 pm

    It seems to me this was a delay action, on further reflection. Faced with the likelihood of the court voting that gay marriage is constitutionally the law of the land for all states Scalia and Roberts tactically voted to deny standing. This at least buys time for the rest of us to get used to the change. Perhaps it was the best they could conjure up…

  53. Lorian on June 27, 2013 at 7:45 pm

    Ben #49 – Actually, my comments re majority vs. minority relate directly to this passage from your OP:

    In the spirit of that principle, 26 states, and many city and local governments, allow citizens to approve legislation directly by popular vote in cases where their legislature does not address their concerns. However, we learned today that if citizens put in place a law that the people in public office don’t happen to like, it can be ignored.

    …and/or to comments of any number of people throughout the thread who have made the claim that the majority has (or should have) an inherent right to override the rights of a minority with no interference from the government based in its disapproval (“put in place a law that the people in public office don’t happen to like”) of the majority’s motivation in creating that law.

  54. Jax on June 27, 2013 at 7:54 pm

    Government (“We the people,” remember)

    Yeah, I remember. The point of the OP is that the gov’t has forgotten.

    Also, thanks for the lesson on the “social contract” – wasted since my PoliSci degree ensured I was quire familiar with it – but thanks anyway. Question though… your first sentence says we have gov’t to restrict our freedoms and your second says we have gov’t to maximize them… could you make up your mind please?

    Also,

    We agree that, in order to be protected from the infringement of our *own* rights to life, liberty, property, etc., we will be subject to government’s restriction of our rights at the outer edges where they encroach upon other’s rights to life, liberty, property, etc.

    But what about when they don’t infringe just on the edges? When everyday, almost every action I take is mandated/regulated/monitored/or prohibited by “the state”? The “restriction on the edges” of your circle circle has slowly and steadily constricted, circled inward, until the circle is so small it is essentially a collar around our necks. Your attempts to explain why it is necessary is not an accurate reflection of reality where gov’t is involved in almost every action we take – and fighting tooth and nail to increase their control over us. You don’t feel that is wrong? Fine. That just means you fit into this previous description

    What is terrifying is that we’ve marched so far that nobody cares whether they are free or not (and largely couldn’t even recognize it), as long as at the moment they are not the target.

  55. Lorian on June 27, 2013 at 7:54 pm

    Incidentally, Ben, your OP (and several other comments from you and others) misrepresents SCOTUS’s stated reasoning for why the Protect Marriage group was found not to have standing to defend Prop 8. While the court did point out that the State of California was the most prominent party with standing to defend the law, it also made that case that the organization which actually came forward to defend the law when the State of California refused to do so (Protect Marriage) was not a party which had suffered any harm or had any reasonable expectation of suffering harm in the event that same-sex couples were permitted to marry. Had Protect Marriage been able to demonstrate that they had been directly harmed (or would be in the future directly harmed) by gay couples having access to civil marriage in the state of California, they would have been found to have standing to defend the law. They were given ample opportunity to demonstrate such harm, and failed to do so, both at the 9th Circuit and in front of SCOTUS.

  56. Lorian on June 27, 2013 at 7:59 pm

    Incidentally, I agree that SCOTUS was buying time (I see them wiping their brows and saying, “Whew! We ducked that bullet for a few more years!”), but I disagree that this was their sole motivation. They made it quite clear in their majority opinion that they had never granted standing to a noninterested party (a party which was neither the state which had passed the law, nor an individual or group who were harmed by the law or the repeal of the law), and did not wish to establish a precedent of doing so now. It’s a valid argument, IMO, unless you are aware of a case which has already established such a precedent that the court either missed or ignored?

  57. Steve Smith on June 27, 2013 at 8:08 pm

    OK Jax, polls, when they’re well done and when we compare lots of them (polling the polls), are good indicators of what a vote might look like. Ask Nate Silver (who by polling the polls gave the most accurate prediction of the 2012 elections). But based on your comment, I’m expecting if we could bring gay marriage to a nation-wide vote right here and now and the majority said yes to its legalization, that you would support gay marriage being the law of the land, no questions asked, right?

    The point of the OP was that we have democracy only at the government’s discretion, which is much different than saying that we have freedom only at the government’s discretion. And based on the current trends of interaction between the US government and the people it represents, both are incorrect and hyperbolic statements. Our government is not based on a direct democracy. In fact the founding fathers decried direct democracy and equated it with anarchy and chaos. We have a republic, which is an indirect democracy. In this republic, powers are balanced so as to achieve optimal justice in society (which isn’t always necessarily achieved in practice, of course, but is there a better way?). With the balance of such power, the tyranny of the majority can be prevented and the rights of minorities can be protected. And no, the case of SCOTUS letting Justice Walker’s ruling on Prop 8 stand is not a matter of politicians just waving the will of the people away, as the OP suggests, but is a matter of the judiciary (who are not elected politicians) constitutionally using their power to make a ruling, and in this case a ruling that Justice Walker was acting within his power in 2010.

    Now as for freedom, it’s not a question of how much power the government has or how big it is, but a question of how just it is. Just governments carefully define rights and freedoms and protect them. In order to achieve an optimal balance of freedoms, they need to limit some freedoms (i.e. the government needs to limit the freedom of people in the south to discriminate against black people in order to protect the freedoms and rights of minorities, even if a majority of people in the south used to favor segregation). Just governments govern by the rule of law and with checks and balances in power and not by the arbitrary rule of select individuals or mobs. In the case of the sidewalk chalker, he is being tried for vandalism of property (which is expressly against the law), not for what he said (freedom of speech doesn’t apply). But it has nothing to do with gay rights. Gay couples aren’t vandals. They seek the protection of their freedoms and rights under the law, which an oppressive majority is depriving them of. And a just government protects their freedoms and defends true justice.

  58. Ben Huff on June 27, 2013 at 8:13 pm

    Lorian (#53), thank you for your sensible response. You have your eye on the wrong question, though. I am not questioning the need for majority rule to be limited by a set of established rights. I accept that, and it wasn’t at issue in this case, although you and I may or may not agree on the specific rights that have to be guaranteed to protect minorities. The job of protecting minority rights in this way is enshrined in our laws, as it should be.

    My concern is about the role of public officials, and the way this ruling gives them exclusive authority to defend or not defend the laws of the states, and therefore seemingly to nullify laws made by the people based on their own personal judgment. They may say that their personal judgment is that a law is unconstitutional, but it is not their position to make that judgment. In fact, the California constitution specifically says that it is not their position to make that judgment.

    As for other commenters who have brought up majority versus minority rights, what I said to you and Steve Smith applies to them, too: save it for another thread, please.

    Fortunately, it looks like this ruling actually doesn’t give state officials the kind of power over the people that I was concerned about. See my new post.

  59. Lorian on June 27, 2013 at 8:20 pm

    Jax #54 –
    My presumptuous address was tongue-in-cheek, because I assume that you are familiar with the social contract, and are simply choosing to ignore its existence momentarily. ;)

    Question though… your first sentence says we have gov’t to restrict our freedoms and your second says we have gov’t to maximize them… could you make up your mind please?

    Because in order to maximize our own freedoms, we must at times limit the freedoms of others. And in order for other people to have their freedoms maximized, there are times when we must accept some limitation of our own. We cannot have a society in which I have the right to life and liberty, while Hannibal the Cannibal retains the right to freely indulge his appetite for human flesh. One of us must have our freedoms restricted in order for both of us to survive and function together in a society. So, yes, maximizing the freedoms of all citizens *does* involve a certain amount of *restricting* the freedoms of all citizens.

    That’s sort of what the social contract is about, I’m fairly certain. ;)

    But what about when they don’t infringe just on the edges? When everyday, almost every action I take is mandated/regulated/monitored/or prohibited by “the state”? The “restriction on the edges” of your circle circle has slowly and steadily constricted, circled inward, until the circle is so small it is essentially a collar around our necks.

    That’s because every day, nearly ever action you take happens in the presence of, and upon property shared with, other human beings, who also have the right to exercise their freedoms and make use of public property. Therefore, you can get up to an alarm, but not to a massive set of speakers in your backyard blaring the Stones at decibel levels appropriate to an amphitheater at 6:00AM. You can drive your car to work, but not at 90 miles per hour. You can work at your desk, and use equipment provided by your boss, but you can’t steal her sandwich from the fridge. You can dislike your co-worker, but you can’t get him fired for being an atheist (well, chances are pretty good you’d get away with it if you did, but ideally, you’re not supposed to be able to). You can come home and barbeque, but your menu cannot include your neighbor’s cat that pee’d on your petunias (incidentally, more and more often, your neighbor can keep a cat, but if it roams free and pees on your petunias, your neighbor will find his or her rights restricted by local ordinances requiring cats to be kept indoors on or leashes, like dogs — one way the laws inhibit someone else’s freedom in order to protect yours).

    I could keep going for the rest of the 24 hours of your day and on into next week, but I’m assuming you get the point. Yeah, laws restrict you most every moment of your day. But they also restrict your neighbors, friends and coworkers in order to protect your right to drive on the road without someone running you off, and so forth.

    Your attempts to explain why it is necessary is not an accurate reflection of reality where gov’t is involved in almost every action we take – and fighting tooth and nail to increase their control over us. You don’t feel that is wrong? Fine. That just means you fit into this previous description
    What is terrifying is that we’ve marched so far that nobody cares whether they are free or not (and largely couldn’t even recognize it), as long as at the moment they are not the target.

    If you don’t wish to live under the restriction of laws which prevent me from depriving you of basic rights and freedoms, and you from doing so to me, then you may have to find a place to live where your free exercise of your rights throughout the day will not place you in situations of potential contact/conflict with other human beings. As someone who is not particularly social, myself, IRL, I can empathize with this desire. My preference is to live in places where my nearest neighbors are likely to take a car or horse if they wish to visit me in my home, but I do recognize that in order to live reasonably well together most people must make certain concessions to the needs and rights of others.

  60. Jax on June 27, 2013 at 8:21 pm

    Just governments carefully define rights and freedoms and protect them.

    Exactly. The US did that once, in 14 printed pages (modern printed version of the Constitution) where it clearly laid out what the gov’t would do and explicitly stated that everything not in those pages was outside the gov’t authority. But it slowly and intentionally was changed into a gov’t where, far from “carefully defining” anything, its leaders feel comfortably saying this: http://www.youtube.com/watch?v=hV-05TLiiLU (side note: if anyone can tell me how to link that in one word like so many others do I’d be appreciative!)

    That isn’t clearly defining freedoms or how it is protecting them. It is “just give us authority and then we’ll tell you later what we are going to let you do”. That’s a problem. Again, if you don’t see that, then you also fit this description

    What is terrifying is that we’ve marched so far that nobody cares whether they are free or not (and largely couldn’t even recognize it), as long as at the moment they are not the target.

  61. Lorian on June 27, 2013 at 8:23 pm

    Ben #58 – Fair enough. Thanks for the acknowledgement. I do maintain, though, that Protect Marriage was given reasonable latitude to demonstrate their standing to defend Prop 8 based upon reasonable expectation of direct harm to themselves should it be repealed. Their arguments were heard by the court and found wanting.

  62. Jax on June 27, 2013 at 8:26 pm

    You can dislike your co-worker, but you can’t get him fired for being an atheist

    No… but apparently you can get him fired for not being a Muslim…

    http://www.examiner.com/article/england-man-fired-for-offering-to-buy-bacon-sandwiches

  63. Ben Huff on June 27, 2013 at 8:26 pm

    As for the issue of having suffered harm, Lorian, that is one of the most outrageous things about this case, which I really would need a separate post to treat properly. The harm here is having one’s right to self-government revoked, and having the laws and constitution trampled, and those are harms as fundamental as there can be in a political context. By saying that the woman in the DOMA case would be harmed because she would be taxed on her inheritance from her deceased companion, but that the citizens who put in place a law are not harmed when that law is ignored by their government, is to reduce citizens to a gaggle of consumers and victims. If the courts decide that nothing should matter to us besides money and the affirmation of the state (as the DOMA ruling assumes), then they have turned us into passive subjects and no longer citizens. I refuse to be the subject of a government so incompetent that it is incapable of even producing a budget, and has to shroud its decisions in incomprehensible gobbledigook like so many of these SCOTUS opinions. Once again: if I’m going to be a subject, give me an honest dictator!

  64. Steve Smith on June 27, 2013 at 8:34 pm

    “Your comments on majority versus minority rights are not relevant to the OP.”

    And yet you write in the OP: “The Declaration of Independence states that governments derive “their just powers by the consent of the governed.””

    And this: “Before today, we believed that governments derive their power from the consent of the governed—that is, the people. Or to put it more personally, we believed that the authority of our government depended on us. Today we learned that, as far as our government is concerned, our authority depends on it.”

    Yet you claim you’re not talking about majority vs. minority rights here? Well you should have worded it differently if that wasn’t your intent. Please, let’s cut the obfuscation. The points that Lorian and I have brought up are quite relevant to the OP. You’re simply creating a straw man to avoid addressing our challenges to your thoughts.

  65. Lorian on June 27, 2013 at 8:37 pm

    Mtnmarty #48 -

    As for the significance of the California decision, there is still a recall process available in California.

    This is unlikely, however, as the current governor and CA Atty General were elected on a platform which *included* their explicit refusal to defend Prop 8.

  66. Jax on June 27, 2013 at 8:55 pm

    Please, let’s cut the obfuscation.

    Sure. Love to!!! There is no point in arguing minority v majority rights. They are irrelevant. The gov’t will allow/disallow what it thinks is right, and enforce on us, its subjects. Is the “cut[ting] the obfuscation” enough?

    Majority of a school is Christian. Can they pray in school? No, violates religious freedom of someone who doesn’t like prayer.

    Minority in a school is Muslim. Can they pray in school? Yes, otherwise it would violate their religious freedom, and the school is required to provide them space and time for it.

    Where are the carefully defined rights and freedoms and protections you claim? The gov’t isn’t consistent in anything except enlarging the scope of their power/control. This SCOTUS decision isn’t some fulcrum point where we were free and now we’re not – this isn’t apocalyptic. It is just the next small step to disenfranchise “the people” from the gov’t.

    I am positive you can point to a thousand other places where this SCOTUS decision is in line with previous policies and gov’t practices. That is the scary problem. It is commone practice and policy to just do whatever they want, regardless of anyone’s “right” (minority or majority) and just do whatever the hell they want, knowing full well that whatever excuse or reasoning they give us for their actions we “the sheeple” will just continue to accept it. This is ESPECIALLY true of LDS sheeple, because of our 12th article of faith and adherence to our Constitution and belief in it’s inspired origins – even though the gov’t has stopped following by it long LONG ago.

  67. Lorian on June 27, 2013 at 8:59 pm

    Ben #63 – Well now I’m afraid you’ve drawn us back into the substance of the case.

    I think it might be helpful to place the argument in another context. For instance, if Prop 8 were a law which stated that black people do not have the right to marry white people, the potential harm to interracial couples would be clear. But if Kamala Harris refused to defend such a law on behalf of the state, who would have standing to take the appeal to the 9th Circuit and to SCOTUS? The KKK? The Southern Baptist Convention (not that I’m comparing them to the KKK or suggesting that they *would* defend such a law…necessarily…)? Well, is either of them an interested party? Are they trying to marry a spouse of a different race, but are unable to do so because of this law? No. Are they representatives of the state of California? No, they represent their own interests, not those of the people of the state of California. Are they harmed by interracial couples marrying? Well, no, not so far as I can see.

    But if they could prove that children would be harmed by being birthed and raised by interracial couples (other than merely as a result of societal prejudice against such couples and their offspring, which does not constitute valid justification for discrimination) and that they were acting on behalf of such children, and could show that they had legitimate jurisdiction to do so (say, for instance, that the SBC found interracial children who suffered terrible genetic malformations as a direct result of racial mixing, and that such malformations could be proven to be likely to afflict a large percentage of children born to interracial couples, and SBC hired attorneys to represent these children as parties who would be directly harmed by repealing the antimiscegenation law) then I’m guessing SCOTUS would have found them to have standing as party to the suit, and would have heard the case on its merits.

  68. Lorian on June 27, 2013 at 9:11 pm

    Jax #66 –

    Majority of a school is Christian. Can they pray in school? No, violates religious freedom of someone who doesn’t like prayer.

    Minority in a school is Muslim. Can they pray in school? Yes, otherwise it would violate their religious freedom, and the school is required to provide them space and time for it.

    Jax, this is baloney. Clearly you either do not understand laws regarding prayer in schools, or you are choosing to intentionally misrepresent them. I’m hoping it’s the former.

    Christian students and Muslim students are equally entitled to private prayer during school. The prayer cannot be led by a teacher or administrator, as teachers and administrators are employees of the government, and the government is not permitted by the constitution to endorse or establish any religion and enforce it upon the people. The people are entitled to the free exercise of religion (including the right to private prayer according to their own beliefs during school hours which does not interfere with teaching of classes or compel the participation of other students).

    So a Christian student can bow her head and pray over her meal. She can pray for guidance during a test. She can recite her rosary between classes as she moves from class to class. She can recite psalms. She can tape Bible verses inside her locker so that she can work on memorizing them before school or during passing periods. She *can’t* continually “witness” to other students who do not wish to listen to her. She can’t pray aloud or speak in tongues while her teacher is attempting to lecture the class on Echinodermata. She can’t kneel and recite the rosary while she is supposed to be taking a test.

    Muslim students are equally as entitled to the free exercise of their religion as is the Christian student above. But a Muslim or Christian teacher cannot lead his/her class in prayers or witness to his/her students (legally, anyway).

  69. Lorian on June 27, 2013 at 9:13 pm

    Re prayer in school — students can (and do) organize Bible studies in school, so long as they are student-organized and student-led, and do not take place during teaching hours. They must be before or after school or during lunch hour or break time.

  70. Steve Smith on June 27, 2013 at 9:20 pm

    Jax, you’re absolutely right. Who am I to argue with conspiracy theory and paranoia.

  71. Jax on June 27, 2013 at 9:28 pm

    Lorian #68,

    Only kind of baloney. I know the law is different, but unfortunately the effect often isn’t. I’m in High Schools quite regularly and hear students, teachers, and administrators bemoan that their students (almost entirely Christian) can’t pray in school OR I hear how they are afraid that someone will press charges against them for allowing it to happen, and therefore they stop it.

    Now you’ll tell me that they just don’t know their rights. And that is true. But they are also smart enough to see the trend of those rights. That step by step what is allowed for them to do is constricted, and that eventually someone will file suit to stop them from student-led prayer, or bible verses in a locker that is seen by their neighbor, and they will lose that as well. And so the trend restricting freedom causes fear and they self-constrict their actions.

    While legally speaking my scenario is baloney (fair point I acknowledge), the trend in society and the perception it creates makes it a reality that I can bear witness to. Can you acknowledge that?

  72. Jax on June 27, 2013 at 9:40 pm

    Jax, you’re absolutely right. Who am I to argue with conspiracy theory and paranoia.

    Hmmm but: http://www.theblaze.com/stories/2013/06/27/rasmussen-26-of-obama-supporters-and-shocking-number-of-govt-workers-see-tea-party-as-nations-top-terror-threat/

    This poll says that “Among those who Strongly Approve of the president, more fear the Tea Party than radical Muslims”. Really? They are more afraid of fellow-citizens who favor small gov’t than the Boston Bombers, that 9-11 hijackers, and their ilk?

    But I’m paranoid?

    And that would almost be a good argument, except almost all of the things us “small gov’t” types warned are happening…. ARE ACTUALLY HAPPENING!!!

    Unless you’ve missed the news for the last month…

    The gov’t:
    targets people based on policital ideology
    records all of your online events (email, webpages, Skype, FB)
    records your phone calls and can listen to them at will
    is equipping a domestic army
    has made journalism (clearly a protected right, no?) near-criminal
    can kill citizens without due process

  73. Lorian on June 27, 2013 at 10:33 pm

    Jax #62 –

    Well, maybe, if you live in the UK where that story is reported from. And I don’t see anywhere in the story that the firing has been upheld by any labor board or court, so I’m guessing it has yet to be appealed. Our friends in Great Britain aren’t exactly irrational nutbars, as a rule. I’d give it a chance to play out in their courts, and I *wouldn’t* generalize it as “proof” that you can be “fired” in the USA for “not being Muslim.” Speaking of hyperbole.

  74. Lorian on June 27, 2013 at 10:41 pm

    Jax #71 – Pure paranoia on toast.

    When I was in Jr. High and High School I carried a Bible around on top of my books. When I was given an assignment in a literature class to read a book of my own choosing and report on it, I chose the Psalms and Revelation. I kept a chapter of the Bible taped to the inside of my locker door to memorize. I prayed (silently) before every lunch I ate at school. I argued creationism with my Biology teacher.

    Was I considered a freak show by my peers (and some of my teachers)? Yep, you betcha. Was I ever *once* disciplined by any teacher or school official. Never. Not once.

    My daughter’s middle school has a Bible club which meets during lunch time every Wednesday. They actually have teachers and an outside minister sponsor and lead the group (which IS grossly illegal). Personally, I’d like to see it stopped, but I don’t want my daughter to be the kid with the lesbian moms who got the Bible Study shut down. If it were student-led and organized it wouldn’t be illegal, nor would I have any problem with it. I DO have a problem with born-again teachers trying to recruit my child with pizza and donuts to come to their Bible teaching on campus during lunch, and be told how everyone but them and the church they believe in is a sinner and going to hell. One issue at a time, though. Right now I’m trying to get my other daughter, who is autistic, into a more appropriate placement.

  75. KLC on June 28, 2013 at 12:06 pm

    Today’s LA Times has a front page article echoing many of Ben’s concerns. It quotes concerns from people on both sides, including SF mayor Gavin Newsom who originally started it all by issuing same sex marriage licenses in his city. On the Opinion page the dean of the UC Irvine law school, not a conservative, also echoes many of Ben’s concerns. Neither article is yet available on their website to non-subscribers but they will be tomorrow. So it would be disingenous for all of Ben’s critics here to continue to insist that his concerns are baseless or just the ravings of the extreme right.

  76. Jax on June 28, 2013 at 12:19 pm

    Lorian,

    I know the article was from the UK… it just seemed a fun little article to response to your post. I didn’t think it was an “argument” against you, just a fun tangent. I should have added a smiley face to make it clear I guess…

  77. Dave on July 2, 2013 at 12:48 pm

    Careful reading of the Prop. 8 case will lead many to believe that the dissent has the better argument that the proponents of Prop. 8 had the right to act in the state’s behalf when the state choose not to. However, remember that the US District Court concluded that the provisions of Prop. 8 violated the US constitution. By the tortured reasoning of Chief Justice Roberts, the court managed to sidestep answering that question with the lack of standing argument. However, that means the District Court decision stands.

    For those who are upset that the will of the people as expressed in Prop. 8 is not being followed, remember the majority of the people can reach a conclusion that remains unconstitutional. For example, if a referendum were approved that banned the Muslim faith from being practiced in the state, I cannot imagine any court requiring the government to enforce such a ban. They would certainly declare the referendum unconstitutional.

    As to the question as to when the state must abide by the people’s vote, remember that all elected officials, whether in the legislative, executive or judicial branches swear to uphold the constitution (in the states, I assume both the state and federal constitution’s). That means they have the power to make their own constitutional judgments and refuse to follow a law they believe unconstitutional. I believe the California Supreme Court got it right when they said the proponents of a proposition may always step in when the state refuses to act. Having said that – the courts may still say the proposition violated the law.

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