where were the law profs? prop 8 and the absence of opposition.

[brian lauter]

Do you remember when Professor Richard Peterson of Pepperdine Law appeared in that ridiculous Yes on Proposition 8 ad and lied about what would happen in California schools if Proposition 8 didn’t pass?

Do you also remember when Andrew K. Benton, President of Pepperdine University asked the Yes on 8 campaign to stop using the University’s name in the ad and the campaign just put up a disclaimer?

I remember.  What I don’t remember is any No on 8 commercials with law professors declaring their support for marriage equality.  I actually don’t remember any law professors campaigning for No on 8 or publicly debunking the glaring untruths propagated by the Yes on 8 campaign.

I’m not trying to pin the Proposition 8 loss on law professors, of course, but law professor participation, or the lack thereof, exemplifies the absence of grassroots campaigning that some are arguing is the main reason Proposition 8 passed.

For instance, law professors lined up to support Barack Obama.  They made public endorsements, organized, wrote articles, blogged, sang songs, and gave money. 

We didn’t see that kind of grassroots support for the No on 8 campaign.  The battle over Proposition 8 essentially became TV-ad driven, and law professors who supported gay marriage weren’t even organized well enough to combat the televised lies coming from their own ranks.

Yesterday, the ACLU filed a lawsuit challenging Proposition 8 on the grounds that the initiative process itself violated the California Constitution. 

The ACLU’s argument makes some sense, but, as others have pointed out, it may depend a little too much on the courage of the California Supreme Court.

Most law students I know opposed Proposition 8 for one reason or another, and I’ve been hearing a lot of sincere disappointment and anger over its passing.  However, I don’t think the courts can save this one.

My advice to angry and disappointed law students is to start getting involved now, not in litigation, but at the grassroots level.  Facebook groups are being created, petitions are being started, and there will be many more opportunities to make sure that marriage equality in California gets the same kind of support the next time around that Barack Obama did this time around.

I also have some advice for Proposition 8 supporters, but I’ll keep that to myself for now...

Comments

[truth]

Why don't you provide some support for your lame and tired assertion that Professor Petersen lied? The Superintendent was the liar. 96% of school districts in California teach Sex Ed as part of their curriculum. Under California education code, schools that teach sex ed are required to teach topics related to marriage. Given the California Supreme Court's redefinition of marriage, no reasonable person can dispute that the teachings in those classes would have to adapt. Prop 8 was an effort to prevent that. Professor Petersen's statements were true. The real question is why anyone swallowed the superintendent's lies sitting down.

actually, california con law profs DID write something in support against prop 8. problem is, they write for their target audience: academics.

http://www.noonprop8.com/downloads/MarriageStatement.Final.pdf

[Cynthia]

3:29

Thanks for your comment. Brian and I discussed the existence of that statement (which we linked to here on The Shark last week: http://theshark.typepad.com/weblog/2008/10/linx-love-your-professor-day.html) after he wrote this item. We agreed the relevant issue at hand here is that he was not aware of the statement, and that those same academics (at his school and otherwise) did not speak out to their students regarding their opposition to the proposition. You're right that such a statement exists, and you're also right that it did not receive widespread notice.

[RCH]

That is some pretty messed up stuff you just said. This will rely on the courage of the California Supreme Court. The Courts can't save this one. As a law professor who I imagine spouts something about the "rule of law" how can you be a proponent of a court changing something that you actually don't think would be legal even though you agree with the policy. That sounds like George W. Bush the liberal version. i.e. I don't care about the law, I'm just going to do what I think is right. That is not what this country needs right now. If you want to get this changed you should only promote campaigning for it, which I understand that you do. But the support for the other shows how much like Bush you and many other liberals are. You just don't like to admit it.

[Sean]

I know that law school academia is largely comprised of left wing extremists not representative of society as a whole, but the tenor of this post still surprises me. Isn't it possible -- just POSSIBLE -- that the majority's choice was the RIGHT thing here? Not some horrendous aberration that needs to be explained away?

And all this talk about the liberals who are now horrified, incensed, and angered is ridiculous. Come on. The mainstream majority was just as horrified, incensed, and angered with the California Supreme Court's judicial activism in expanding the fundamental concept of marriage to begin with. And for good reason!

The left is entitled to disagree with mainstream America on this, but from an "academic" I at least expect honest reporting; not propaganda spun as objective, unbiased truth.

[Aaron]

I am surprised at the shallowness of most of the comment arguments. I am not sure if most of the commentators here are law students or professors but it appears not a single one of them read the ACLU challenge or the basis for In Re Marriage. Instead they are spouting off the same right wing talking points about activist judges. What the Californian Supreme Court justices did was utilize years of Equal Protection jurisprudence and apply it to homosexual people. They found them to be a suspect classification. And they found that the simple act of having a separately named but almost identical set of rights was by definition unequal.

Now the ACLU argument also has a solid foundation in precedent and black letter law. Without so much as glancing at the argument, the commentators here yell about how undemocratic the challenge is. The fact is that California does not allow revision to its constitution by a simple majority. It only allows amendments.

Perhaps these commentators are not in the legal profession, but if they are they really should hit the books again, advance a legal argument and skip the political rhetoric.

[Ellen]

Which article of the CA Constitution was revised by Prop 8? The only thing that was overturned by Prop 8 was four people's opinion that the CA Constitution somehow and in someway should be interpreted to mean that same sex couples have the right to use the term "marriage," as anything else is not equal.

[Aaron]

The equal protection clause of the constitution was interpreted as including the fundamental right for same-sex couples to get married. Proposition 8 takes that right away. That is a revision. A revision is a fundamental change to the constitutional structure. Because Prop 8 takes away from a right that exists in the constitution before Prop 8 was enacted, it is a revision. The amendment and revision system created in our constitution to modify our constitution requires a 2/3rds vote of the legislature for a revision.

Case law exists which defines an amendment as adding to or explaining the constitution and a revision as modifying the constitutional framework.

It makes sense. We do not want our constitution changed dramatically from a simple majority vote because one reason a constitution exists is to protect minorities from the majorities.

[Aaron]

You can read the actual argument at http://www.aclu.org/lgbt/relationships/37709lgl20081105.html .

"or explaining the constitution"

How is it a revision when the voters just explain to the Supreme Court that their interpretation is wrong? Why else would an explanation be needed except that one of the branches (executive, legislative, or judicial) is getting it wrong? The only way the argument that this is a revision instead of an explanation makes sense is (1) if the judiciary gets something wrong, it somehow magically requires a "revision" to change, but when the executive or legislative branches get it wrong, it's only a clarification; (2) the case law really anticipates that voters will have such foresight that they will see potential misinterpretation down the line before it happens and will adopt preemptive clarifications, which seems kind of silly.

Prop 8 was an "explanation" by the voters of California that they don't like judges inventing law and circumventing democracy. Why is there always an attempt to "get around" the voters instead of trying to convince them?

[rch]

My question is that since blacks, whites, latins, asians, etc. all have the same legal rights in this country, when is it going to be illegal for the government to classify them as such? Isn't that the same same rights different name issue as exists with civil unions or domestic partnerships and marriage? Even more so, people of different races have absolutely no choice about being a member of that race. Each person may consider the natural/choice aspect of homosexuality himself, but I find it incredulous to say that marrying someone of the same sex or having sex with someone of the same sex is anything but a choice. We also may disagree on whether the result of that choice should be a moral question or not or whether there is a right or wrong answer. Nonetheless, it is a choice to have sex in all cases save rape, which is a crime. Heterosexual people still must make a choice to have sex even if no choice is made in whom you are attracted to.

If every time we use a different name for something that is essentially the same we are going to run into constitutional equal protection issues, then we are going to have lots of problems.

Gook luck on that one ACLU.

[SFJD]

"How is it a revision when the voters just explain to the Supreme Court that their interpretation is wrong?"

Well Aaron, it is the Court's job to interpret the Constitution. You and I unfortunately don't get to "explain" to the court, or any judge, why they are wrong. You can try and do that some time though, good luck with that.

[SFJD]

oops, not aaron who said that, my bad, misread the names

[Brian]

A long-winded reply:

First, it looks like there was some confusion among the early commenters, but I am not a law professor, just a lowly third year law student.

Second, the right to marriage is a fundamental right, and government classifications based on sexual orientation are subject to strict scrutiny, just as government classifications based on race, gender, etc. are. Thus, a ban on same-sex marriage would constitute a major revision of constitutional rights. This is my understanding of the ACLU argument, and it makes perfect sense.

Contrary to what some of the commenters have argued (and as Aaron and SFJD pointed out), a majority of the people are not allowed to "explain" to the Supreme Court what fundamental rights are and who they should be awarded to. That's not how separation of powers works.

However, it has always required a lot of courage for members of the judiciary to overturn the will of a majority. It has happened, of course, but it is difficult, and for the CA Supreme Court to do it twice, even when the law clearly favors it, seems unlikely. I hope it happens, but I'm only cautiously optimistic.

So, my only suggestion is that it is important to organize and start convincing the people who voted for Prop. 8 to vote against it when it comes up again, and we should start now.

For more info on grassroots organizing around the state check out: http://overturnprop8.com/ or the numerous Facebook groups that have popped up.

[duh!]

re: activist judges. people. the law is not democratic. duh. no wait. duh x3.

Obama is opposed to gay marriage. Maybe that's why all the profs who voiced support for Obama did not voice opposition to Prop. 8.