In 1996, Utah police raided Larry W. Peterman’s two MovieBuffs video stores, following a petition by 4,000 people calling for his prosecution. The MovieBuffs stores stocked a wide range of videos from Disney’s Dalmatians to Bruce Willis’s blood and gore, but some adult titles were also on offer. Peterman would later testify in court that the latter constituted only 11 percent of all rentals from his shops.
Peterman’s chances in court were slim, to say the least. There was no denying that pornographic videos were found in his stores, and Utah, the stronghold of mormonism, is perhaps the most conservative state in the United States.
Fortunately, Peterson’s lawyer, Randy Spencer, took an inspired tack. He got his investigator to check into a nearby Marriot hotel and, using a video camera, collect evidence of eleven adult channels offered by the hotel’s video-on-demand service. He then subpoenaed the hotel’s revenue records for these channels. He also went after similar revenue information from local cable and satellite television providers’ adult channels.
What he found was “a nearly fathomless pit of hypocrisy,” reported Eroticabiz, an e-book. Local citizens “rented far more porn flicks per capita than did people in the rest of the United States.”
Spencer went on to show that consumption of pornography was hardly outside “community standards”, the usual barometer of what constituted moral depravity. Moreover, the amount of porn Peterman supplied through his stores paled in comparison to the vastly larger quantity enjoyed by the public via those other sources. The prosecution of Peterman with his two small stores (and in response to a sectional demand expressed by way of a petition) when larger purveyors were not targetted, raised the serious question of whether the action was just towards Peterman.
The jury acquitted him.
In To those who grew up with legalism, part 1, I wrote that we should not be regarding the letter of the law as the final word. Law must be seen in terms of its meaning and applied with context in mind. Meaning can change, especially in the light of new knowledge. Context varies from place to place and time to time. Most important of all, law is not there to hand control over us to those more powerful than us, such as governments; it is there to protect us from those who would harm us, and render justice.
Interposing a jury has interesting effects. Because they are laypersons, they will tend to pay less attention to the letter of the law than to an inchoate sense of right and wrong, and fairness. This was at work in the above-mentioned case. One could argue that relying entirely on jurists tends to bias courts to a more literal reading of the text, rather than take in the bigger picture, but I don’t know if this is so. It won’t be fair to the profession.
Singapore used to have a jury system. One of the chief reasons it was abolished, as articulated by Lee Kuan Yew, was because juries were reluctant to convict a person for murder when it meant a mandatory death penalty. Lee felt juries were wrong and so he got rid of them. I could argue this instead: Since law is meant to give form to our sense of order, justice and morality, perhaps our juries, in their reluctance to see someone executed despite being a murderer himself, were beginning to express an emerging morality — that we collectively should not be responsible for taking yet another life.
A simple solution was there to reflect this emerging morality: allow juries to recommend life imprisonment instead. This was a road not taken. Apparently it was more important to preserve the punctilious letter of the law (hang them!) than to let law evolve with the times.
On the other hand, let’s not romanticise juries. Popular opinion, or prejudice, can oftentimes be injurious, and the law may need to be invoked to protect targetted persons from discrimination.
As most readers may know, a high-profile case is wending its way through the US federal court system. The popular name for it is “the Prop 8 case”. It actually began within the California court system. A ruling by the California Supreme Court in 2008 found that denying marriage to same-sex couples violated the equality provisions of the California state constitution, and the court ordered that California government offices issue marriage licences to same-sex couples who applied for them. 18,000 couples wed.
Conservatives were unhappy and, galvanised by a Mormon church-led campaign (with much of the US$40-million funding from Utah residents, not Californians), inserted a referendum question into the November 2008 ballot. This question, listed as Proposition 8 on the ballot, proposed to amend the state constitution by adding a new clause, thereby overturning the California Supreme Court’s earlier decision under the equality clause. Proposition 8 simply said “Only marriage between a man and a woman is valid or recognized in California.”
It passed 52 : 48 percent. The state government of California had to stop issuing marriage licences to same-sex couples.
A new case was launched, this time under federal law. The contention was that Prop 8 violated both the due process and equality provisions of the United States Constitution.
Can law override a popular referendum? you may ask. Yes, it can, and it’s been done before. That’s what I’ve been trying to explain in these two articles. Law is not an ordinary set of rules; it’s a very powerful instrument. But at the same time, because it’s so powerful, we need to be vigilant that it is wielded for noble purposes, not base ones.
The first step in the federal case was completed a few weeks ago. Appeals are expected, however. Judge Vaughn R Walker (right) ruled that Prop 8 was invalid because it violated both clauses of the US Constitution under which it was challenged.
“Due process,” he explained, “protects individuals against arbitrary governmental intrusion into life, liberty or property.” Marriage is such a fundamental right — as the US Supreme Court has ruled it to be numerous times in it history — that courts must apply strict scrutiny to any infringement of that right. Yet, Prop 8 does not even meet the rational basis test let alone strict scrutiny.
Likewise, over the matter of equal protection, “the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect,” and likewise again, Prop 8 does not even withstand the rational basis test let alone strict scrutiny.
The judge, in his written ruling, examined all the arguments put forth by the Proponents (those who mounted the campaign in favour of Prop 8 in 2008) and found them to be unpersuasive. They did not demonstrate a state interest in denying marriage to same-sex couples. Hence, Prop 8, he said, was unconstitutional because it denied a class of persons a fundamental right for no legitimate reason (thus not even surmounting rational basis review).
As for the vote, “That the majority of California voters supported Proposition 8 is irrelevant, as ‘fundamental rights may not be submitted to [a] vote; they depend on the outcome of no election’,” he said, citing an earlier Supreme Court case as precedent.
I’m not going to burden readers with the nitty-gritty of the case, fascinating though it may be. Instead, I will go into its details in a subsequent essay for those readers who are interested. [Update: It’s this one: Perry v Schwarzenegger in less than 136 pages]
The point I wanted to make is just this: While the government of California was bound by the ballot to act in a certain way, the law sat in judgement over the government, and even over the democratic process that was (ab)used to discriminate against a class of people. Properly, law is not merely an instrument for government to regulate people. Law is an instrument to regulate governance.