Prop 8 Related Question (RE: Civil Rights/Jim Crow)

Factual Questions
1

Let me see if I can try to ask this in a clear, concise manner. Have there been past state bills or propositions related to the civil rights movement which were voted on by a majority in a state only to be overturned by a district judge on their way to the Supreme Court?
A little background:

My mother (god love her) posted a negative update on her Facebook recently regarding the overturning of Prop 8 by a “rogue judge”. Her question was simple: How can we call ourselves a democracy** when one person can overturn the will of the people?

Now, I should have scrolled on by, but I did not. :smack: Instead I opened the comment box and advised my dearest mom that sometimes protecting human rights and equality is more important than upholding laws voted on by citizens, regardless of the “will of the people”. My example was that when Civil Rights cases in the 50’s and 60’s were being overturned to promote desegregation and equality among races, it was certainly being done, in many states, against the will of the majority of voters. Nevertheless, it was the right thing to do.

One of her friends piped up and asked me to provide an example of a single “rogue judge” who overturned a majority vote in order to fight segregation and encourage equality for black people.

Welp, it turns out that I don’t know as much as I thought I did. I tried to Wiki my way out of it, but each case I found was a SCOTUS ruling and seemed to happen after a district court upheld the current law.

**Additionally, I did advise that as far as I’m aware, we’re still a republic vs. a true democracy, but whatever. :rolleyes:

Any help?

2

I can name 9 “rogue judges” who overturned Virginia (& several other states) legislatively enacted ban on interracial marriage; Earl Warren, Hugo Black, William O. Douglas, Tom C. Clark, John M. Harlan II, William J. Brennan, Jr., Potter Stewart, Byron White, and Abe Fortas. The entire membership of the US Supreme Court in 1967.

3

The difference being that initiative petitions were not used in the South, so the laws the Judges overturned were not put in place by a direct vote of the people, but by the legislature, school board, etc. This link shows that the Bible Belt states still do not have initiative petitions. I guess they hate democracy.

4

It is actually an interesting question. And shows that the ideas and rights in our government are not static as some believe.

For example, what if the California voters voted to take away rights from Jews or African Americans? Would your mother agree that this would be permitted? Democracy rules! Or, would she more likely say that these groups have certain inalienable rights that cannot be taken away even by democratic vote?

I suspect it would be the latter, but we had race based laws in this country less than fifty years ago. And, many people complained that overturning those laws violated their democratic rights and talked of the same group of rouge judges.

The problem is we now have a new group who just a few years ago, most people would consider immoral, abnormal, and plain sick. Just 40 years ago, someone who claimed to be gay could get fired from work and be reprimanded for psychological testing.

Things have changed. The APA no longer looks at homosexual behavior itself as a mental disease. Many companies are now giving insurance benefits to the significant others of same sex couples. Many states have included sexual orientation into hate crime statues and have made sexual orientation part of their anti-discrimination statutes.

Things are changing, but slowly. Some people will change their minds, but mostly it takes time for the older generation to die out. I can see why your mom is upset. She has strong feelings about whether homosexuality is a right or is a sin and unnatural. How can a judge support such a thing as homosexual marriage? That’s just wrong. If the judge threw out a statue that made it illegal for African Americans to marry, she’d feel differently about it.

And, I am not 100% sure whether the judge was correct in this matter. California’s Domestic Partnership laws have granted same-sex couples almost the same rights and privileges since 2005. In fact, they can even submit joint tax returns. Can the judge truly say that same-sex couples are discriminated against because of simple legal terminology?

In South Carolina, not only is marriage constitutionally defined as being between a man and a woman, but even civil unions are not constitutionally permitted. I can easily see a judge striking down these provisions and the ban against civil unions. Or, the judge saying since there is no legal alternative for same sex couples, South Carolina cannot ban same sex marriages.

I’ve noticed the judge has stayed his own decision and thus it will be up to the Supreme Court to decide whether a state can discriminate in marriage against same-sex couples. I suspect the Supreme Court not to allow for same-sex marriages because California’s domestic partnership law covers the same ground and grants most of the same rights and privileges, but the court’s decision will throw into questions whether states can follow South Carolina’s example and completely bar any legal rights for same-sex couples.

5

Almost the same rights but not exactly the same rights. They can file a joint State tax return but not a joint Federal return.

He temporarily stayed his decision. He’ll decide by Monday if the stay is permanent.

Most of the same rights is not equal rights any more than “separate but equal” is equal rights. I fear that you’re right about how the SCOTUS will decide though.

6

McLaren v. Oklahoma State Regents, 87 F. Supp. 526 (W.D. Okla. 1948) comes to mind. The District Court held that McLaren had the right to attend the University of Oklahoma despite state law because the state had not provided equal facilities as required by the “separate but equal” doctrine. There’s more to the story, though - the university then set in place some really awful restrictions on McLaren, like making him sit in the hallway outside the classroom and sit at a special table in the lunchroom, and a District Court later upheld that (that case and Sweatt v. Painter are the ones that went to SCOTUS). That’s the problem with a lot of the pre-Brown cases - “separate but equal” was the law of the land, so lower courts were bound by precedent. Still, if you just want to squelch a loudmouth, you can simply say “McLaren v. Oklahoma State Regents, 87 F. Supp. 526 (W.D. Okla. 1948)” and be completely correct. Let her do the rest of the analysis. :slight_smile:

Give me a few minutes and I may be able to think of a few more.

7

In Gebhart v. Belton, 33 Del. Ch. 144, 87 A.2d 862 (Del. Ch. 1952), aff’d, 91 A.2d 137 (Del. 1952), a Delaware state judge ruled that Delaware had not provided equal facilities to black students and ordered public schools desegregated, which was upheld by the Delaware Supreme Court. Gebhart was one of the case consolidated in Brown v. Board of Education.

8

In Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (Cal. 1948), the California Supreme Court ruled that the state anti-miscegenation law prohibiting marriage between a Mexican American woman and a Caucasian American man violated the Equal Protection Clause of the 14th Amendment (it was an original proceeding, no lower court decision).

9

In Mendez v. Westminster School District, 64 F.Supp. 544 (C.D. Cal. 1946), aff’d, 161 F.2d 774 (9th Cir. 1947) (en banc), a U.S. District Judge ruled that California law mandating segregated schools for Mexican and Mexican American students was unconstitutional, and was upheld by the 9th Circuit Court of Appeals (albeit on different grounds).

10

The OP is right to note we are a republic and not a democracy.

The OP’s mom should be asked to consider the following:

California is a liberal state. Yes, there are plenty of conservatives but there are more liberals.

Imagine the liberals put a proposition through banning the republican party from the state.

Now, she would rightly complain that is illegal.

Well, so too with Prop-8.

In her view would it be a “rogue judge” that overturned the clear will of the people that banned the republican party?

Frankly, if she bothered to follow the case and/or read the opinion she would see the defendants (Prop8 supporters) put forward a terrible case (their own witnesses ended up aiding the plaintiffs side). It is almost impossible to think any judge could have ruled otherwise.

11

I don’t think most of these conservatives who are angry about the decision are the types who would care about a logical argument or one that plays to their sympathies. They’ll simply say “well that’s not going to happen” and leave it at that

12

Shelley v. Kramer 334 US 1. A state circuit court judge ruled the restrictive covenants that prevented a black family from buying a home in a white neighborhood could not be enforced. The judge was overruled by the Missouri Supreme Court. In a similar case in Michigan, the circuit court upheld the restrictive covenants, but was overruled by the Michigan Supreme Court. Both cases went to the U.S. Supreme Court, which held that all race-based restrctive covenants were invalid.

Not exactly the same because a covenant among a group of property owners isn’t the same as a law. But it was a single rogue state circuit court judge who originally said that property owners couldn’t get together and prevent selling to blacks.

13

What about Griffin v. Prince Edward County School Board, 377 U.S. 218? Prince Edward County (Virginia) closed its public schools rather than desegregate them, and this was found impermissible. Allen v. County School Board of Prince Edward County, 207 F.Supp. 349 (D.C.E.D. Va. 1962).

Any number of the school busing cases of the 1960s and 70s were “rogue judges” in Federal District Courts overturning the “democratic” decisions of local school boards to simply have students attend their closest school or “freedom of choice” plans that they knew would preserve local segregationist traditions.

14

There is a basic fallicy here: it isn’t logical to compare judge’s rulings on civil rights for blacks with rulings on civil rights for gays.
There is a basic difference between the two concepts–the “Rogue judges” of today are not doing the same thing for gays that the “rogue judges” of the 1960’s did for blacks.

In the 1960’s, Jim Crow was limited to 12 southern states. The other 38 did not allow segregation. So when a “rogue judge” overturned the will of the voters, he was not making a new law–he was just invalidating a local law, and applying the national laws as they were already practiced in most of America.

The OP’s grandmother is ( for better or worse) right. The “rogue judges” did overturn the will of the voters when they suddenly declared that gay marriage is legal. They were not taking the law as it existed in 38 states and applying it to one more state… they were inventing a totally new legal concept that had never existed before in any state, and had never been approved by the voters anywhere, anytime.
(apologies in advance: this is slightly off topic, more appropriate to GD than GQ.)

15

Nitpick, same-sex marriage was approved by the voters acting throught their elected representatives in Vermont, New Hampshire, and the District of Columbia. Also same-sex marriage was legalized by the Coquille Nation by an act of it’s Tribal Council, not a court.

16

Did you read the decision? I think he laid out his case quite well, citing the evidence that clearly indicated that the same-sex couples were discriminated against…

17

I’m pretty sure that was the position taken by the mobs who used to lynch “Coloreds” under the guise that it was the Will of the people.

18

Regardless of whether one thinks the actual merits of the cases are analogous or not, the mechanism then and now is pretty much the same, and that’s what she asked him to provide examples of. The complained of activity is enshrined in the laws of some states but not others, yet constitutional for any state to engage in, until a judge in that jurisdiction invalidates that state law on federal constitutional grounds. The federal law as it existed in the other 38 states was exactly the same in the Jim Crow states, even if they chose not to have segregated schools.

19

Of course, this is complete nonsense. Segregation was wide-spread in America prior to the 1970s, particularly in the areas of housing and public schooling. In fact, the famous Brown decision, which outlawed segregation in public schooling involved a Kansas school. Last time I checked, Kansas wasn’t one of the 12 southern states. Additionally, prior to the 70s, many non-Southern states lacked discrimination protection in areas such as public accommodation or employment. While we use the term “Jim Crow” to refer to segregation as practiced in the South, the idea that segregation was limited to the South is utter nonsense.

Nope. The idea that the US Constitution prevented governments from race-based segregation only began to seriously appear in the US starting in the 40s and it took a forty year battle (much of which took place in the judiciary) to enshrine that in the law. In order to desegregate the country, an immense amount of US Constitutional law, as was interpreted by the courts, changed radically.

20

But, that’s FEDERAL law! Allowing for same-sex marriage in California won’t over turn the federal statute. The Judge didn’t rule on the federal statute. Only that not allowing same-sex couples the right to marry discriminated against them through the 14th amendment.

The problem is that California has a remedy in the Domestic Partner statute which grants almost the same rights and privileges that heterosexual couples have in marriage. And, this was never brought up in the court case. Instead, the focus was on procreation, civil society and acceptance, etc. which the judge rightly rejected.

However, I am sure this will be brought up at the Supreme Court level. The anti-Proposition 8 side will have to show that 1). California doesn’t have a right to create marriage requirements based upon sex, and 2). That Domestic Partnership is not equal in legal status to “marriage” as defined by the laws of the State of California.

Personally, I believe marriage is a state of mind and a religious status. What the state is interested in is the civil aspects of such a union. It would be much simpler to get rid of the legal term “marriage” and make it all civil unions. That would make marriage strictly a religious function. A majority of the population doesn’t mind giving same-sex couples the same rights and privileges. They just object to the term “marriage”.

It’s as if they’re afraid they’ll go to Church on Sunday morning, and in the middle of the service, the Bureau of Alcohol, Tobacco, and Firearms will storm the place and force everyone to watch two dudes get gay married.