Bench Memos

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LA Times to Voters: Acquiesce to Judicial Imperialism


In November, California’s voters will have the opportunity, through Proposition 8, to override the state supreme court’s outrageous 4-3 ruling in May that concocted a state constitutional right to same-sex marriage.  (I’ve discussed that ruling in several posts, including here and here.)  The Los Angeles Times’s house editorial from last Friday against Proposition 8 is remarkably confused and/or disingenuous.


The primary argument of the editorial is that the issue before California’s voters “is radically different” than it was in March 2000, when California’s voters, by a 61% to 39% margin, approved a proposition (Proposition 22) that enacted into statutory law the rule that “Only marriage between a man and a woman is valid or recognized in California.”  Never mind that the language of Proposition 8 is identical to that of the 2000 proposition.  You see, “This time, the wording would be used to rescind an existing constitutional right to marry” rather than, as in 2000, “refining existing law.”


The editorial’s argument is incoherent, and the distinction that it would draw cuts in exactly the opposite direction.  Indulge for a moment the fiction that there really is a right to same-sex marriage in the California constitution.  If there is, then it’s been there all these many years, and the 2000 proposition, far from “refining existing law”, was an illegitimate effort to enact a statute that violated that supposed constitutional right.  By contrast, Proposition 8 would use the very means contemplated by the state constitution—a state constitutional amendment—to set things straight.


The confusion that pervades the editorial is that the state constitution is no more and no less than whatever the state supreme court says it is.  Thus, in the face of one of the most audacious acts of judicial arrogance ever, the Times is telling California’s citizens to roll over and play dead. 


The editorial might also seem to leave the impression that the Times supported the 2000 proposition.  In fact, it opposed it.

Tags: Whelan


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