“People need to be reminded that government is not some wonderful, frictionless machine pumping out goodies, but a grasping, greedy round-robin purse snatch.”

Credit for the post title goes to commenter Titus Quinn at Q and O, where I first caught wind of this item: having issued IOUs to vendors in lieu of actual money for services rendered, California is now demanding that the vendors pay taxes on the money that the IOUs represent.  Never mind that the IOUs are absolutely worthless pieces of paper which some banks are refusing to accept.

You couldn’t make this stuff up.

Really?  Nanny-statism produces non-compliance with and contempt for the law?  Who could have ever predicted such a thing?

Today the California Supreme Court heard oral arguments for consolidated cases challenging the legitimacy of the state constitutional amendment enacted by Proposition 8 last November.  For those unaware, Proposition 8 effectively overturned a decision of the state Supreme Court that legalized same-sex marriage in California.

My own view on this issue is fairly simple: I don’t think governments ought to be in the business of privileging certain types of human relationships in the first place — whether or not you’re married ought to be between you, your spouse, your God, and perhaps your minister; and the disposition of property accumulated by couples over the course of their relationships can be handled by private contract — but that so long as government is going to do this sort of thing, it should not be permitted to discriminate among couples on the basis of gender or sexual orientation.  That said, I also think that efforts to achieve marital equality for same-sex couples through litigation are oftentimes counterproductive, and that money and activism could be more effectively spent demonstrating to the public that GLBT couples are entirely normal, upstanding members of the community.  Winning hearts and minds is a longer and less glamorous slog, and I definitely grasp the extent to which GLBT folks have reached a, “I don’t give a crap what people think about me anymore, just give me my rights,” point… but it’s important to remember that once you reach a public consensus that same-sex marriage is No Big Deal™ the rest will take care of itself.  As an added benefit, social change achieved through persuasion rather than litigation tends to be a lot more enduring (witness how there’s still a simmering culture war over abortion some 35 years after Roe v. Wade was decided, while on the other hand the civil rights activism of the 1950s and 1960s that eventually gave rise to the Civil Rights Act and Brown v. Board of Education achieved gains for racial equality that, nowadays, are pretty uncontroversial).

Unfortunately my views are hardly ever embraced in legislative or judicial enactments, and so we have the current mess: having failed to defeat Proposition 8 at the polls, its opponents have come back to the courtroom to try to convince the California courts to overturn it.  The petitioners (those asking the state Supreme Court to overturn Proposition 8) are advancing essentially two arguments, which are actually illustrative of the difference between what lawyers call substantive due process and procedural due process.

The procedural due process argument against Proposition 8, as made by the pro-gay-marriage activist groups, is grounded in the legal rules of the road.  An amendment to the California state constitution can be enacted by a ballot measure that wins a simple majority of the vote, but a revision of the state constitution requires, additionally, a 2/3 majority vote of the state legislature.  The petitioners argue that Proposition 8 is a change of such significance that it should be regarded as a revision rather than an amendment, and that since there was never any 2/3 vote of the state legislature, Proposition 8 cannot stand.

The substantive due process argument against Proposition 8, as argued by state Attorney General Jerry “Moonbeam” Brown, is grounded in more abstract notions of fairness.  Here, the petitioners concede that Proposition 8 is an amendment, but argue that the amendment process may not be used to eliminate fundamental rights.  Since same-sex marriage is a fundamental right under the state Supreme Court’s previous caselaw, Proposition 8 cannot stand.

I think that the San Francisco Chronicle has the right of things when it characterizes these arguments as longshots, and having watched some of the oral argument I suspect the lawsuits are likely to crash and burn, badly.  The substantive due process argument is susceptible to the easy rebuttal that there’s nothing in the state constitution to suggest that it cannot be amended to reflect the electorate’s (rather than the legislature’s or the judiciary’s) conception of fundamental rights: the federal Constitution represents the “floor” of liberty in the United States, and while states may grant greater freedoms than the federal government does, they are not required to do so.  The procedural due process argument is a little thornier, since there’s not very much caselaw on point, but the suggestion that Proposition 8 represented such a structural alteration of the state constitution as to be a revision rather than amendment strikes me as fairly unpersuasive.  In short: I think it’s pretty unlikely the state Supreme Court will overturn Proposition 8, and I think that — unfortunately and sadly — is probably the right outcome under the law.

One other thing I wanted to mention, here.  One may detest Kenneth Starr for his role in the Clinton impeachment scandal.  One may think that he’s representing contemptible bigots, and that the arguments he made on behalf of his clients are reprehensible.  But arguing in defense of Proposition 8, his was as professional and effective a job of oral advocacy before an appellate court as one will see, especially when measured against the clownish performance of Christopher Kreuger (the lawyer arguing on behalf of AG Jerry Brown).

According to the Tax Foundation, California’s “Tax Freedom Day” — the day on which the average Californian taxpayer starts to work for himself, rather than for federal, state, and local governments — arrives on May 7th.  Californians pay on average 10.5% of their income in state and local taxes, the sixth-highest burden in the nation.  California’s top income tax rate is the highest in the nation, and the state’s business climate is so awful that it looks favorable only in comparison to New York and New Jersey.  Our sales tax exceeds the national median and our gas tax is the highest in the nation.  Only our property taxes, kept in check by a voter initiative passed in 1978, rank below the national average.  The state’s annual revenues are in the $85-$90 billion range.

In no sense are Californians undertaxed.  In no sense does the state legislature want for sufficient funds to pay for essential government services (police, fire, bona fide public education, and a basic social safety net).  And yet this year the state has faced a $42 billion “revenue shortfall” which we have been told, time and again, amounts to a “budget crisis”.

Read More