Fundie legal activists try to block No on 8 lawsuits as "frivolous"

[nichomachus]

Liberty Council tries to block No on 8 suits

Liberty Council today filed a motion to intervene in the three lawsuits asking the California Supreme Court to nullify last week’s voter approved gay marriage ban.

"The lawsuit seeking to block Proposition 8 is patently frivolous,” Mathew D. Staver, Liberty Counsel founder and Dean of Liberty University School of Law, said in a news release.

“The people have a right to amend their constitution.

“It makes no sense that four judges can re-write the historic definition of marriage and more than 5 million people cannot restore it to its common understanding as the union of one man and one woman."

Liberty Counsel is a Virginia-based nonprofit founded in 1989 that uses education and litigation to advance conservative religious beliefs.

[WillParkinson]

1. So, naturally....

If Prop 8 had failed they would have happily accepted the answer.

[Taverner]

2. Once again, a non CA group tries to dictate law to us

:grr:

[jody]

3. “The people have a right to amend their constitution." but not if it is an inalienable right.

If same-sex marriage is an “inalienable right” under CA Constitution the constitution cannot be amended to take away that right.

CALIFORNIA CONSTITUTION
ARTICLE 1  DECLARATION OF RIGHTS
SECTION 1.  All people are by nature free and independent and have
inalienable rights.  Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

IMO it's up to the California Supreme Court to rule on whether same-sex marriage is an inalienable right and the constitution cannot be amended to take away that right.

If it's legal to amend a constitution to take away an inalienable right, then the constitution can be amended to legalize slavery and that applies to the CA Constitution and the US Constitution.

In other words, the idea that an inalienable right protects a minority even of one against the tyranny of a simple majority would be destroyed.

[HamdenRice]

12. You might be interested in constitutional scholar Bruce Ackerman

He's about the only constitutional expert who argues that a constitution can be unconstitutional. Most other scholars believe that a constitutional amendment cannot by definition be unconstitutional and that if an amendment goes through the proper procedure, the constitution is amended. Since you mention slavery, you might keep in mind that before the 1860s, the constitution actually contemplated the existence of, and protected, slavery so slavery cannot be unconstitutional.

Ackerman sees the constitution the way the British (and presumably you) do -- namely, that there is a whole body of political and historical tradition that determines what the constitution is. Ackerman doesn't use slavery as an example, but religion: he asks what would happen if the US constitution was amended using all the proper procedure to make a religion, say the southern Baptist Church, the established church of the US by amending the First Amendment. Most scholars say that the Baptist Church would indeed become the established state church, but Ackerman says that amendment, in the context of the larger constitutional tradition, would be unconstitutional. You might want to check him out.

On edit: I should add that of course the California constitution can be unconstitutional under the US Constitution -- but since you cited the California constitution, you raise the "unconstitutionality of the constitution" conundrum.

[jody]

14. Thanks for your post. CA's constitution acknowledges "inalienable rights" and by definition such

rights cannot be taken away by law including the supreme law of a state, its constitution.

Of course in the 21st century some people would do away with specific "inalienable rights" arguing that times have changed since they were first recognized as inalienable rights.

My interest was in whether any group in CA is trying to use the argument that same-sex marriage is an inalienable right under CA's constitution.

[HamdenRice]

15. This has been a big debate about the constitution since the beginning -- natural rights v positivism

The founding fathers clearly believed in "natural rights" -- the idea that rights pre-exist government, and that all a constitution can do is articulate and protect them.

Around the early 1800s, however, the entire political and legal system began moving from natural rights to "positivism" -- the idea that all legal rights basically come from law and is made by the government, and there is nothing except the political process that limits the sovereign.

Generally, positivism has won out, and with the exception of people like Ackerman, few legal experts believe in natural rights any more. There were so many influences that caused positivism to win out -- from the need of the new nation to "write down" more laws and cases, meaning lawyers now looked in books instead of to "natural reason" for legal answers, to the example of Napoleon "liberating" Europe while imposing the Napoleonic code, to the way the right wingers of the late 1800s used natural law to prevent reform. Ackerman is unusual because he is a proponent of natural law from a left/progressive perspective.

While I understand where you're coming from, I just don't think you could get a California Supreme Court to ever hold that a constitutional amendment is unconstitutional (except on grounds of the procedure by which it was adopted), and the problem with language like "inalienable rights" is that somewhere they have to be "positively" described. For example one person's version of inalienable rights might be same sex marriage; another's could be the right to own assault weapons or carry concealed weapons. One might seem obvious to us and one ludicrous; but if you're a right wing gun nut it would be vice versa.

So, the only answer of what is an inalienable right is the democratic procedure of amending and interpreting the living constitution. It's the constitution itself that tells you what those rights actually are.

Anyway, if you want to read some interesting stuff that take a position opposite to mine, check out Bruce Ackerman's "We The People."

[jody]

16. Thanks, I've read Ackerman's book as well as many others on the issue of natural/inalienable/moral

rights that preexist government versus rights or privileges aka civil or statutory rights that express societies customs and beliefs that are conferred by government laws.

My question still remains, is there a group(s) in CA that seeks to show that same-sex marriage is an inalienable right under CA's constitution?

I've browsed a large number of comments on - marriage "inalienable right" - but I did not find a group in CA that was using that line of argument. Perhaps I missed it.

[HamdenRice]

17. I haven't heard of any

The GLBT litigation groups tend to be, like civil rights litigation groups, very pragmatic about what arguments they make to courts, so I'm not sure you'll find a mainstream group making that argument.

[jody]

18. Thanks for the exchange and have a wonderful evening. n/t

[greeneyedboy]

19. revision vs. amendment

if an initiative makes comprehensive changes to the fundamental plan of gov't, or alters the balance of powers (e.g. by taking away the judiciary's right to guarantee equal protection to minorities), it is a revision, and must be passed in a more deliberative process, by 2/3 vote of both houses of the legislature, or by a constitutional convention called by a similar supermajority of the legislature.

Amendments clarify and adjust existing law, but Prop 8 goes beyond that and radically changes the structure of gov't in California, so it cannot be enacted as a simple amendment to the Constitution.

[Maat]

4. Hey, Matt, stay out of our lives!

Yes-on-H8rs will regret ever starting this by the time we are done.

Legally and properly, we will attack each and every one of their sacred cows.

[bluedawg12]

5. Is that affiliated with Jerry Fatwell's

Liberty U?

Hate is so well funded it's amazing.

[Maat]

6. Ain't that the truth ...

actually, I believe he's been kowtowing to James Dobson lately.

[NMMNG]

7. How hateful do you have to be to consider human rights "frivolous"?

Liberty Counsel is a Virginia-based nonprofit founded in 1989 that uses education and litigation to advance conservative religious beliefs.

It's truly sad that millions of people put religious beliefs, an ideology, a thing, above living breathing human beings.

[Ellen Forradalom]

8. Yeah, sue 'em into salvation

That's a winning strategy :eyes:

[bluedawg12]

9. How human do you have to be to be considered eligible for human rights?

It is dehumanizing this campaign from the rw.

[AntiFascist]

10. Ironic that they are called the "Liberty Council"...

Listening to their argument you would think that the CA Supreme Court was saying that ONLY gay people can get married.

[and-justice-for-all]

11. the only thing I see as 'frivolous'

is that they held a vote on Gay Marriage!

"historic definition"?? Really? Then it looks to me that we have a Church and State issue. If that is the case, then the vote needs/should be over turned and civil rights restored. They have no right to deny gay people the same thing everyone else gets, just because they don't like it.

[terrya]

13. The 4 justices were doing their jobs. Correctly, needless to say.