Six Consequences the Coalition [in Support of Proposition 8] Has Identified if Proposition 8 Fails – Sixth Consequence
6. It will cost you money. This change in the definition of marriage will bring a cascade of lawsuits, including some already lost (e.g., photographers cannot now refuse to photograph gay marriages, doctors cannot refuse to perform artificial insemination of gays even given other willing doctors). Even if the courts eventually find in favor of a defender of traditional marriage (highly improbably given today’s activist judges), think of the money – your money – that will be spent on such legal battles.
Thurston/Response: The argument concerning cost is fallaciuos and calculated to engender fear. In actuality, the net fiscal effect of Proposition 8 will be an influx of revenue to California because of the anticipated increase in marriage ceremonies and the related boon to the economy. The change in the definition of marriage will not bring a “cascade of lawsuits” because heterosexual registered domestic partners already have all the rights of married couples in California. None of the lawsuits alluded to in this paragraph has anything to do with gay marriage.
The wedding photographer case was in New Mexico, a state that has no gay marriage law. The medical doctor case was in California, but was based on our existing non-discrimination laws and would not be affected one way or the other by the passage of Proposition 8.
In the California case, a medical clinic that provided intrauterine insemination (IUI) to its patients, refused to treat one of them because she was a lesbian. California’s broad anti-discrimination laws expressly ban discrimination by any business establishment that offers to the public “accommodations, advantages, facilities, privileges or services.” This statute bans discrimination against heterosexuals and homosexuals alike, as well as married people and domestic partners. Therefore, the clinic had the option of either having a doctor on staff who would perform IUI services on a non-discriminatory basis, or cease performing the services at all. Whether we agree with this decision or not, the fact is that the law upon which this ruling was based will not be affected by the passage of Proposition 8, so there is no “consequence” if the proposition fails.
The gratuitous comment concerning “activist judges” seems to be framed as an appeal to fear and paranoia. In fact, today’s justices on both the California supreme court and the United States Supreme Court can hardly be called “activist.” Six of the seven justices of the California Supreme Court were appointed by Republican governors; seven of the nine justices of the United States Supreme Court were appointed by Republican presidents. Most legal scholars would agree that they are moderate to conservative in their leanings and have a healthy respect for constitutional principles. The California Supreme Court has a high reputation throughout the land. A recent study indicates that its decisions are approved of and followed by out-of-state courts far more than are the decisions of any other supreme court in the United States.
Ronald M. George, the chief justice of the California Supreme Court, who wrote the opinion for the majority in the marriage cases, is a judicial moderate who was never considered to be an activist judge. He has an outstanding scholarly background (Princeton and Stanford) and worked as a prosecutor immediately after graduating from law school. He was appointed a Superior Court judge at the early age of 32 by Republican Governor Ronald Reagan. Though young, he quickly gained a reputation as fair-minded, insightful, hard working and tough on crime. He was widely praised for his handling of the difficult trial of the Hillside Strangler, Angelo Buono. He rose in the ranks of judges until he was appointed to the California Supreme Court by Republican Governor Pete Wilson.
As Justice George considered the marriage cases, the decision “weighed heavily” on his mind. He remembered a long ago trip he made with his European immigrant parents through the American South. There, the signs warning “No Negro” or “No colored” left “quite an indelible impression on me,” he recalled. As a judicial conservative, it would have been safest for him to vote against the petitioners and avoid the backlash that he knew would come But, as he put it in an interview with the Los Angeles Times, “I think there are times when doing the right thing means not playing safe.”
The function of judges is to evaluate cases before them and apply constitutional principles to assure that minorities, as well as majorities, receive justice. In controversial cases they are bound to anger some portion of the electorate regardless of how they vote. Their unenviable job is to ignore public opinion and apply the law as they see it. [emphasis mine] Some decisions are so difficult that reasonable minds can differ. The Supreme Court decision in the marriage cases was that sort of decision. Nevertheless, four of the seven justices on what is considered to be a moderate to conservative court agreed on the verdict that was rendered. This decision cannot be written off as merely the whim of “activist judges.”
In summary, the arguments used in “Six Consequences… If Proposition 8 Fails” are false, misleading, and based on faulty logic. Almost every legal case alluded to is misrepresented. The passage or failure of Proposition 8 will not affect any of the scenarios posed by this document; all of the so-called adverse consequences are illusory.