anotherlongshot (anotherlongshot) wrote,

The opiate of the masses. (More on Prop 8)

Increasingly it's starting to look like free speech is the opiate of the masses. The more stupid comments I read online, the more I'm wondering if free speech shouldn't be curtailed to disallow retarded people from voicing their retarded opinions.

Okay, I'm not actually serious about that. I'll never be against free speech, no matter how irritated I get by the unintelligent opinions that get thrown around - especially on the Internet. Then again, it's only on the Internet that I get irritated because I don't debate these things in real life, primarily due to the fact that my brain is too slow for me to properly translate my thoughts into oral words.

Anyway, I digress. My dear Adam Baldwin tweeted this link and I clicked on it out of curiosity (also, I challenge myself every now and then by reading views that are opposite to mine, just to see how I handle them. Usually I just roll my eyes at their stupidity and move on with my life). The short of what I want to say is that it's yet another reminder of why having a legal education separates those who have had a legal education from those who haven't had one. Not to say law students/graduates/whatever are smarter or more intellectual, because they are not. But it is true that law students/graduates/etc are exposed to materials and a specialised form of reasoning that non-lawyers wouldn't get - unless they're really intellectual and erudite and well-read. But the average person isn't going to "get it" when they read about how Prop 8 is irrational because it has no connection to a legitimate state interest. The average person would think that the judge has no business overturning a majority vote. The average person would get the legal reasoning all screwed up and claim that the decision created a constitutional right to marriage.

There is no constitutional right to marriage. That much is obvious, even from news articles reporting on the decision. And the constitutional reasoning, at least based on the New York Times articles that I've read, is actually sound.

Here, then, is the long of it:

I'm increasingly developing a problem with laypeople commenting on legal decisions, precisely because some of them have clearly demonstrated that they haven't the slightest idea what they are talking about. A genius that commented on the article above made the hilarious claim that the decision was neither based on constitutional law nor stare decisis. Clearly the guy hasn't even glanced at the decision, nor the reports surrounding it, because anyone with half a brain who has the ability to read and has read the news articles can be sure that the decision was based purely on constitutional law.

The Plaintiffs advanced their case based on the 14th Amendment to the US Constitution, which reads:

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added)

The decision made it a point to state the grounds of law on which the case is being decided in the opening few pages of the decision. I know this because I found the full text on and had it opened in a separate browser at work, which I read every now and then when I was sick of the shit that I was doing.

Second, those who are claiming that the decision asserted that marriage is a constitutional right still haven't learned how to read. The argument is that Prop 8 is irrational because there is no rational nexus between the ban on same-sex marriages and a legitimate state interest. A legitimate state interest could be the need to protect young children, hence the criminalisation of paedophilia. And it has to be a secular interest for obvious reasons. Therefore, if the most that anyone can say about gay marriages is that traditionally, marriage is between a man and a woman, the State is officially not interested. I'm even having a hard time now trying to pinpoint what is the State interest in the traditional notion of marriage, let alone a legitimate one, and since I can't think of anything, I'm unable to raise any counter-arguments; so let's just leave it at that.

The point is, the amazing thing about the decision is that it does not cry histrionics about gay rights and how the gay community is discriminated against as a minority group. It launches into a reasoned analysis of the law and the facts, drawing upon established methods of constitutional interpretation, and reaches a conclusion that is entirely logical and methodical. People against the decision are slamming Judge Walker for being an "activist" judge, but the job of a judge is to interpret the facts and the law, and that was exactly what he did. The judge did not instigate the Plaintiffs to bring the law suit; they did that on their own accord. The judge similarly did not ignore existing case law and create a new category of rights in a vacuum. In fact, I think assertions to the effect that marriage is a constitutional right in news reports and idiotic comments posted online have pretty much missed the point: that the right that is being protected is not the right to marry, but the right to be protected equally by the law. Prop 8, by the very virtue of the fact that it disallows same-sex couples to marry, violates the equal protection clause, because it precludes homosexuals from the protection that heterosexuals are afforded in terms of their ability under the law to get married.

Some opponents to the decision have also come up with the cute idea that marriage between a man and a woman is an "ideal tradition" that the law seeks to protect. In the same article the writer cites several instances of modern-day living that have more or less subverted the "traditional ideal", but then goes on to conclude, without any reason given, that "the law need not advance important goals with perfect logical consistency":

For many reasons, the law tolerates or officially recognizes marriages that fall short of the traditional ideal. We now have no-fault divorce, frequent remarriage, and blended families. Older people marry, despite their inability to bear children. But the law need not advance important goals with perfect logical consistency.

This raises several questions: First, it's a traditional ideal according to whom?; second, if procreation is the ideal of marriage, why then should older people, infertile people, be allowed to marry?; and most importantly, why shouldn't the law advance these "important goals" with logical consistency? Maybe it's because if the law did exactly that, the writer would find her arguments crumbling into bits and pieces.

In any event, all that is a red herring because her points have already been addressed in the decision, points which the writer blithely chose to ignore.

But the most important point is really this, and I said this yesterday: those that are pissed off at this decision need only be gay for one day to realise how important the judiciary is in tempering the tyranny of the majority. I'm beginning to think I'm no fervent supporter of democracy, but that's probably because I'm awfully distrusting of those of average intelligence amongst us who get to make important decisions. But it's precisely because democracy is about majority rules that there will always be a number of people who will always lose. The appropriate response isn't to turn a blind eye and say "too bad"; the appropriate response also isn't to say, "We'll subject this to the popular vote again, and maybe the tide will turn." The political process cannot check the political process, and neither can the majority protect the interests of the minority.

It is a flawed solution, but it's the best solution: the check comes from the judiciary. It has to come from the judiciary. Sure, flawed opinions are issued all the time, and sometimes the judiciary doesn't step up to the plate. But sometimes, it does the right thing - and Judge Walker, in Perry v. Schwarzenegger, did exactly that.


On another, but related, note, I am an unabashed supporter of judicial review. That's partly because I believe in the inherent good of the institution, but also partly because all the alternatives to JR that I've come across have all been pretty rubbish. Popular constitutionalism, for example, suggests leaving constitutional interpretation in the hands of the people. Now, I'm all for the romantic idea of the people as the sovereign, but hello, wake the fuck up. The average person does not give a shit about the Constitution. The average person in Singapore does not even know that there is a Constitution, let alone the rights that it protects.

The role of the courts in a democracy is to protect the rights of the minority, and the Perry decision doesn't even go that far. So, yeah, I don't know what all these pissed off people are banging on about. Try being gay for one day. I'm not gay, and even I'm delighted that Prop 8 has been struck down as unconstitutional.


Okay, I'm off that subject completely now...wait, one more thing: I'm still sad that my Comparative Constitutional Law paper only garnered a B+. I mean, reading it over I can kind of see why, especially that unacademic gambit at the end. I suppose that didn't quite pay off.

BUT STILLLL. I would've been over the moon with just an A-.


Work today was errrrrrrrr yeah.

Mag and I discovered something hilarious at work though. We were debating over where the Chinese cemetery was, Lim Chu Kang or Choa Chu Kang, so we took to googling it. Mag found a link from a site called SGFreak-whatever, supposedly a forum where people went to share their creepy experiences. Out of curiosity she clicked on it, just to be greeted by an "Access Denied" page courtesy of our dear IS department.

Guess what was the reason they provided for blocking the site? "Alternative spiritual beliefs."

What the flying fuck? I thought of testing the strength of their firewall by googling to see if they blocked Scientology websites as well (it's CLEARLY an alternative spiritual belief), but they didn't. THIS IS DISCRIMINATION.

I also had a really lovely and relaxing lunch with Mag and Tris by some random body of water, and it didn't feel like a work day at all in those 60ish minutes. At times like those, I truly wish we were still in law school and had the luxury of sitting around in the canteen, doing nothing, talking nonsense, and enjoying life.
Tags: commentary, current affairs, friends, law, law school, mag, proposition 8, same sex marriage, tris, work

  • Cold Weather is Running Weather

    Now that we’re stuck indoors with nowhere to go, the sunny weather that we’d been having for the past week or so had begun to feel like a personal…

  • (no subject)

    I spent about 45 minutes this evening writing my first entry in a while in Notepad, just to lose everything save for the last bit which I took a…

  • Cambridge Half Marathon 2020: SUB-TWO FUCK YEAH

    On the one hand, I achieved my goal, broke the two-hour barrier. On the other hand, my finish time of 1:56:32 does not reflect the effort that I'd…

  • Post a new comment


    default userpic

    Your reply will be screened

    Your IP address will be recorded 

    When you submit the form an invisible reCAPTCHA check will be performed.
    You must follow the Privacy Policy and Google Terms of use.