Prop 8 in the CA Supreme Court: A Round Up

[CalBoy]

Well we should all be very familiar with Prop 8 and its background by now, and since this Thursday is the date of oral arguments for the challenges to Prop 8, I think a bit of legal summary is in order:

There are 3 cases that are being heard simultaneously on March 5th in San Francisco:

Strauss v. Horton
Tyler v. California
San Francisco v. Horton

There are several issues being considered:



Is Prop 8 a revision or a simple amendment? The California Constitution requires revisions to be ratified by 2/3rds of the Legislature, so if the Court agrees with this argument, it would effectively send Prop 8 to the California Legislature, where it would undoubtedly meet its end.

Does Prop 8 violate the separation of powers doctrine? The argument here is that protecting minorities is a responsibility of the judiciary, and that the legislative process can't intervene to prevent equal protection under the law. If the Court agrees with this argument, Prop 8 is essentially nullified on the spot.

Can the initiative process override 'inalienable rights?' This argument is being made by Jerry Brown, the Attorney General. Brown is basically saying that the initiative process can't be used to challenge fundamental rights, because the very notion of a majority defining a fundamental right defeats the purpose of having a fundamental right.

Finally, if the Court does not accept any of the above arguments and Prop 8 is retained as valid law, are the 18,000 same-sex marriages now annulled? What is their legal status?

There have also been over 60 amicus curiae briefs filed in the case, with over 2/3rds of them being in opposition to Prop 8.

To read the legal stuff for yourself, I suggest this Court press release (http://www.courtinfo.ca.gov/presscenter/newsreleases/NR08-09.PDF) and the Court's webpage (http://www.courtinfo.ca.gov/courts/supreme/).

[thebassoonist]

Thanks, CalBoy, for the legal summary. I have had quite a few interesting conversations about the idea that the courts are supposed to protect the rights of minorities. One person, interestingly, told me (and I paraphrase) that the rule was created to protect the wealthy few from the parasitic poor.
I really look forward to what happens this week! I have hope. :)

[CalBoy]

Thanks, CalBoy, for the legal summary. I have had quite a few interesting conversations about the idea that the courts are supposed to protect the rights of minorities. One person, interestingly, told me (and I paraphrase) that the rule was created to protect the wealthy few from the parasitic poor.
I really look forward to what happens this week! I have hope. :)

My pleasure to sum up the cases. :)

I am a bit apprehensive to be honest. A year ago (in a thread quite similar and yet so different), I was certain how the Court was going to rule (I even had the vote count correct!), but now I'm not so certain. I have hope though, and I think many millions share in that hope, which is a comforting thought.

Your last line there reminds me: this case won't be decided until a considerable time after Thursday. The Court has 90 days to issue a ruling. Last time they took about 2 months, and I think we can expect a similar wait time for this one. In fact, I have a conspiracy theory that the Court is going to issue their decision rather late; in time for June weddings I think. ;):p

[thebassoonist]

My pleasure to sum up the cases. :)

I am a bit apprehensive to be honest. A year ago (in a thread quite similar and yet so different), I was certain how the Court was going to rule (I even had the vote count correct!), but now I'm not so certain. I have hope though, and I think many millions share in that hope, which is a comforting thought.

Your last line there reminds me: this case won't be decided until a considerable time after Thursday. The Court has 90 days to issue a ruling. Last time they took about 2 months, and I think we can expect a similar wait time for this one. In fact, I have a conspiracy theory that the Court is going to issue their decision rather late; in time for June weddings I think. ;):p

Oh, true. I have difficulty with delayed gratification. Ha ha. I want my rulings now! Are you going to the candlelight vigil?

[itcheroni]

Thanks for the info. As a state case, I feel pretty optimistic. There really is no logical legal reasoning to deny gays the right to marry. But logic sometimes have little to do with rulings.

[leekohler]

My pleasure to sum up the cases. :)

I am a bit apprehensive to be honest. A year ago (in a thread quite similar and yet so different), I was certain how the Court was going to rule (I even had the vote count correct!), but now I'm not so certain. I have hope though, and I think many millions share in that hope, which is a comforting thought.

Your last line there reminds me: this case won't be decided until a considerable time after Thursday. The Court has 90 days to issue a ruling. Last time they took about 2 months, and I think we can expect a similar wait time for this one. In fact, I have a conspiracy theory that the Court is going to issue their decision rather late; in time for June weddings I think. ;):p

Calboy- I think we're going to win this. I don't see any way for us not to. The whole idea of voting on people's rights is so anti-American to begin with, I don't see how it could go any other way.

[iJohnHenry]

<aside>

I love the term "amicus curiae". I learned that one via Perry Mason. :p

</aside>

[BigHungry04]

Calboy- I think we're going to win this. I don't see any way for us not to. The whole idea of voting on people's rights is so anti-American to begin with, I don't see how it could go any other way.

Are California's Supreme Court Justices elected or appointed? If they're elected I can pretty much guarantee you that they will decide in favor of Prop 8 just to stay in office. Otherwise they will decide the fate of the proposition based on the state constitution.

I am hoping they declare the proposition unconstitutional. Removing civil rights from minorities is a bad thing.

[leekohler]

Are California's Supreme Court Justices elected or appointed? If they're elected I can pretty much guarantee you that they will decide in favor of Prop 8 just to stay in office. Otherwise they will decide the fate of the proposition based on the state constitution.

I am hoping they declare the proposition unconstitutional. Removing civil rights from minorities is a bad thing.

AFAIK, they are not elected.

[No1451]

This blows my mind. Why is there even legislation against same-sex marriage? I've never understood it honestly, I couldn't care less if both parties have the same junk, so long as I don't need to see it flopping around I'm down with it.

I can't see how it won't get tossed out though, as you said, removing rights from a minority is just ridiculous.

[mrkramer]

AFAIK, they are not elected.

but they can be impeached which I hope happens if they overturn Prop 8.

[leekohler]

but they can be impeached which I hope happens if they overturn Prop 8.

Why do you think it's the right of the masses to vote people's rights away? You do realize how anti-American that is, don't you? Do you have any idea what could happen to your rights if this doesn't get struck down?

EDIT- ah, the classic post-and-run. :rolleyes:

[mrkramer]

Why do you think it's the right of the masses to vote people's rights away? You do realize how anti-American that is, don't you? Do you have any idea what could happen to your rights if this doesn't get struck down?

EDIT- ah, the classic post-and-run. :rolleyes:

It's never been gay people's right to marry, marriage always has been in any society between a man and a woman. Nothing will happen to my rights if it doesn't get struck down, but if it is struck down, then it would open churches to lawsuits that would force them to compromise their beliefs or be shut down. personally I would prefer the government completely out of religious ceremonies like marriage and them to give civil unions for everyone, but that's not likely to happen.

[mactastic]

It's never been gay people's right to marry...
Umm... how do you explain the 18,000 same-sex marriages that took place before Prop. 8 took that right away?

[bobber205]

It's never been gay people's right to marry, marriage always has been in any society between a man and a woman. Nothing will happen to my rights if it doesn't get struck down, but if it is struck down, then it would open churches to lawsuits that would force them to compromise their beliefs or be shut down. personally I would prefer the government completely out of religious ceremonies like marriage and them to give civil unions for everyone, but that's not likely to happen.

Or between a man and many women. Marriage has changed many times over the history of mankind. Get over it.

[leekohler]

It's never been gay people's right to marry, marriage always has been in any society between a man and a woman.

Guess what- it IS a right: http://www.cnn.com/2008/US/05/15/same.sex.marriage/

"We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples," Chief Justice Ronald George wrote for the majority.

Nothing will happen to my rights if it doesn't get struck down, but if it is struck down, then it would open churches to lawsuits that would force them to compromise their beliefs or be shut down.

No, it does NOT! No church would have to marry anyone it doesn't want to. Do churches have to marry straight people? Or can they turn them down? No church has to marry anybody they don't want to.

This law ONLY pertaims to the civil aspects of marriage, not the religious ones.

personally I would prefer the government completely out of religious ceremonies like marriage and them to give civil unions for everyone, but that's not likely to happen.

Again, this has nothing to do with religion, this has to do with civil law- nothing more.

Furthermore- this is how this could affect you: If the rights of gay people can be voted away, then so can anyone else's. The whole idea of the USA is that no one's rights can be taken away from them, by vote or otherwise.

[CalBoy]

Are you going to the candlelight vigil?

Probably not. :o Classes (and a midterm) are sort of making it extremely difficult for me to go.

After the decision is announced, I might try to go to whatever comes next (either a victory rally or a protest), since I should be done with finals by then.
Calboy- I think we're going to win this. I don't see any way for us not to. The whole idea of voting on people's rights is so anti-American to begin with, I don't see how it could go any other way.

There's one person you need to watch during Thursday's oral arguments: Justice Kennard. She's our swing vote in this case. If her questions are not looking friendly towards the anti-Prop 8 lawyers, or Jerry Brown, then we have cause for concern.
Are California's Supreme Court Justices elected or appointed?

They are appointed by the governor and "retained" (or not) by the voters. A retention election occurs every 12 years, but justices can be impeached in a process that is essentially the same as the initiative amendment process.

If they're elected I can pretty much guarantee you that they will decide in favor of Prop 8 just to stay in office. Otherwise they will decide the fate of the proposition based on the state constitution.

Impeachment presents an interesting obstacle for the justices here. The last time California removed Supreme Court justices was in the 1980s, and it was over the death penalty. However, the death penalty was supported by much larger numbers, the governor was against the justices, and the justices were repeatedly overturning capital convictions. Thus the voters were more upset by the pattern and practice of the justices, not necessarily any one ruling.

In the case of Prop 8, a majority may now be against Prop 8 based on recent polling. What's more, the public tends to not like removing public officials unless they are seen as doing great harm to the state. To put icing on the cake, our esteemed governor has finally taken a side on the issue and announced that he wants to see Prop 8 overturned. In this sense, the justices have the wind at their backs if it comes down to an impeachment fight.

It's never been gay people's right to marry, marriage always has been in any society between a man and a woman.

Until the 1920s, women were also seen as a property exchange in marriage, not equal partners. Should we default to that view following your traditionalist argument?

What's more, your statement is factually incorrect as gay marriages have been documented to have occurred in Ancient Egypt, China, Rome, and Greece.

Nothing will happen to my rights if it doesn't get struck down, but if it is struck down, then it would open churches to lawsuits that would force them to compromise their beliefs or be shut down.

Again, from a factual perspective this isn't the case. The law does not require any church to perform any ceremony; that is exclusively the domain of the church and its leaders. If that wasn't the case, we would have seen lawsuits from June to November 2008 in California, lawsuits in Connecticut from December onwards, and lawsuits in Massachusetts from 2003 onwards.

So, please leave your red herrings at the door.

[NT1440]

It's never been gay people's right to marry, marriage always has been in any society between a man and a woman. Nothing will happen to my rights if it doesn't get struck down, but if it is struck down, then it would open churches to lawsuits that would force them to compromise their beliefs or be shut down. personally I would prefer the government completely out of religious ceremonies like marriage and them to give civil unions for everyone, but that's not likely to happen.

A perfect example of FUD if I've ever seen it. 90% of the post is a lie, even the first sentence is a lie!:eek:

[FreeState]

My partner and I are flying up to San Francisco on Wednesday to be their for Thursdays case. If anyone is in the area there are a lot of planned activities - theres a march Wed night in every major CA city as well.

Here's to hope and common decency :)

[leekohler]

My partner and I are flying up to San Francisco on Wednesday to be their for Thursdays case. If anyone is in the area there are a lot of planned activities - theres a march Wed night in every major CA city as well.

Here's to hope and common decency :)

We'll be thinking about you here in Chicago! Good luck and don't give up!

[CalBoy]

My partner and I are flying up to San Francisco on Wednesday to be their for Thursdays case. If anyone is in the area there are a lot of planned activities - theres a march Wed night in every major CA city as well.

Darn it, now I'm tempted to go.

The Day of Protest in November really was a lot of fun, but the timing is just horrible for this one. :o
We'll be thinking about you here in Chicago! Good luck and don't give up!

I'm sure we'll be wishing you the same in a few years when Illinois has this case come before it. :)

[leekohler]

Darn it, now I'm tempted to go.

The Day of Protest in November really was a lot of fun, but the timing is just horrible for this one. :o


I'm sure we'll be wishing you the same in a few years when Illinois has this case come before it. :)

I don't think it'll take that long. There's already civil union rumblings around the state houses.

[CalBoy]

I don't think it'll take that long. There's already civil union rumblings around the state houses.

Here's hoping. The more states that join in equality, the sooner we get full rights at the Federal level.

[PlaceofDis]

I don't think it'll take that long. There's already civil union rumblings around the state houses.

i'm actually surprised that it hasn't happened already.

and i'll be hoping for a good outcome to this case.

[EricNau]

Nothing will happen to my rights if it doesn't get struck down, but if it is struck down, then it would open churches to lawsuits that would force them to compromise their beliefs or be shut down.
That's absolutely false; in fact, the exact opposite is true. No church will ever be required by law to recognize same-sex marriages; however, Proposition 8 eliminated the church's right to make that decision. Churches wishing to perform (recognized) same-sex weddings are prevented from doing so under Prop 8, violating religious freedoms.

If you don't believe this to be the case, then the contrasting argument must be true: religious ceremony and legal marriage are entirely separate and must not overlap, essentially voiding all arguments in favor of Prop 8.

personally I would prefer the government completely out of religious ceremonies like marriage and them to give civil unions for everyone, but that's not likely to happen.
Fair enough, so long as all marital contracts are legally recognized equally, even in name. It should be noted, however, that modern marriage precedes modern religion, and for that reason there is no valid argument which places the term "marriage" under the realm of religion. Marriage was a secular legal term long before it carried any religious connotations.

[leekohler]

Marriage was a religious term before it was a religious term.

Huh? That makes no sense. ;)

[itcheroni]

Here's hoping. The more states that join in equality, the sooner we get full rights at the Federal level.

Not with our current Court.

[CalBoy]

Not with our current Court.

I wouldn't be so sure about that. Kennedy is pretty gay-rights friendly, and if Obama is able to appoint any judges over the course of 4 or 8 years, it will most likely tip the balance in our favor.

[itcheroni]

I wouldn't be so sure about that. Kennedy is pretty gay-rights friendly, and if Obama is able to appoint any judges over the course of 4 or 8 years, it will most likely tip the balance in our favor.

Kennedy is great because he's truly trying to be objective, which is why gay marriage makes legal sense to him. The judges Obama will replace are going to be the liberal ones, like Stevens, who is my personal fave. I wouldn't get too excited until Scalia leaves.

[Gelfin]

It's never been gay people's right to marry, marriage always has been in any society between a man and a woman.

Marriage has meant a lot of things in a lot of cultures, and has absolutely included homosexual unions (http://www.msnbc.msn.com/id/20464004/). American fundamentalist Christianity is very good at indoctrinating children to believe that everyone believes as they do by default, and always has, but it just isn't so.

Nothing will happen to my rights if it doesn't get struck down, but if it is struck down, then it would open churches to lawsuits that would force them to compromise their beliefs or be shut down.

I'll be more blunt than most: you've been flat lied to. The paragons of morality have borne you false witness, and you gullibly bought the lie because it told you something you wanted to hear. The Establishment Clause absolutely prohibits the state from dictating doctrine or ritual to any church. There isn't the remotest chance that this scare tactic would come to pass, and if anyone were so foolish as to try, you would find that the majority of Prop. 8 opponents (I know for certain the ones in this thread) would be on your side.

The soul of American freedom is lack of prior restriction on individual conscience. The government, whether considered as a distinct entity or as the collective will of one's fellow citizens, is not competent to tell you what you believe any more than to tell you who you love.

personally I would prefer the government completely out of religious ceremonies like marriage and them to give civil unions for everyone, but that's not likely to happen.

Marriage has always been at least as much a secular legal matter as a religious one. Saying marriage is exclusively religious because in many religions someone blesses it beforehand is like saying eating a meal is exclusively religious for much the same reason. Ask yourself why atheists would want to get married. If you can't think of any reasons, you're not trying, and those reasons are the same reasons gay couples would want to.

There was a time I could support the "civil unions for everybody" alternative, but I cannot anymore for a number of reasons.

First there's the federal legal s***storm you create. Suppose California issued civil unions to everybody. Are those couples married for federal tax purposes? If so, why only the straight ones? The Defense of Marriage Act actually doesn't help at all, because it calls out the word "marriage" specifically. Otherwise, is the federal government expected to just abandon all the federal tax dollars from joint filings in California? Then there's the issue of whether anyone from California is considered "married" in any other state in the Union after such a change.

This brings us to the second problem, that even within California civil unions are still regarded as an ersatz marriage, a sort of game the law requires us to play along with in certain ways. You want to try issuing that certificate to everybody, including the people who are opposed to any gay union? They already screamed bloody murder last year when their state marriage licenses didn't say "Bride" and "Groom" in the expected locations. Now try telling those people that they cannot file as married on the 1040, but they must file as "civilly united" on the 540.

The idea that "civil unions for everybody" is a compromise that protects the feelings of bigots while enabling equal rights is a fantasy and a red herring. The people who oppose gay marriage do not want equal treatment by whatever name, and will not tolerate their marriage being legally downgraded to a status they fully intend to be understood as inferior if it exists at all.

In this case, I am convinced the only way out is straight through: religion has no exclusive claim on the word "marriage" and never has, and although churches may do whatever they please in regards to rituals, the law must extend equally to everyone.

[FreeState]

We'll be thinking about you here in Chicago! Good luck and don't give up!

We'll never give up until we have equality or were dead:) Im hopeful but nervous.

I dont know if this was posted but its one of the best OP on prop 8 I have read -

http://www.pasadenastarnews.com/ci_11807957

We understand ours to be a nation of liberty and opportunity for all. To an extent, this is most certainly true. We recently celebrated the election of our nation's first African-American president and first family. Our state is represented in the Senate by two women and in the governor's mansion by an immigrant. However remarkable these achievements are, they do not mark the end of discrimination nor do they automatically ensure opportunity for all. For these reasons, the diverse people of California depend on our Constitution and the rule of law to ensure that we all receive equal protection and equal empowerment under the law.

Unfortunately, the very purpose of our state Constitution has been called into question as its guarantee of equal protection under the law is at risk. Proposition 8, passed last November by a slim majority of voters, took a fundamental right away from a targeted group. Most supporters of Prop. 8 would like to tell us it's only about marriage for same-sex couples, but in reality, Prop. 8 is about so much more.

By allowing voters to mandate government discrimination against one group, Prop. 8 opens the door to discrimination against almost any group of people in our state - including people of faith. Because of this problem, the United Church of Christ, my denomination, has joined more than 4,000 other houses of worship in asking the California Supreme Court to invalidate Prop. 8 on the grounds that it defeats the very purpose of ourconstitution, which is to protect all people from harm and make sure the law treats everyone of us equally. The rights of a one group cannot be determined by a simple majority vote.

As an African-American pastor here in San Marino, I am particularly troubled by Prop. 8's impact on people who are hurt by its passage. I am reminded of the struggles black communities have faced and continue to face in this country. I am reminded of the damage a majority can and has sometimes inflicted against groups in the past. And I am reminded of the need we all have for equal protection under the law. When people who are most directly affected by Prop. 8 say they are harmed, I am compelled to listen and to act. (more at link)

[thebassoonist]

It's never been gay people's right to marry, marriage always has been in any society between a man and a woman. Nothing will happen to my rights if it doesn't get struck down, but if it is struck down, then it would open churches to lawsuits that would force them to compromise their beliefs or be shut down. personally I would prefer the government completely out of religious ceremonies like marriage and them to give civil unions for everyone, but that's not likely to happen.

Point one has been well debunked. You should be a bit careful before making an absolute statements when talking about societies. There are many societies today, and in the past, that allow for gay marriage. And even if there weren't, what would be the harm in legalizing it? I think it is interesting that you chose "a" instead of "one." This was, I kid you not, subject to debate when the Utah constitution was being amended. A woman and A man allows for polygamy. One woman and One man does not.
Point two, well, anyone and anything can sue anyone or anything for any reason. Yes, people can sue churches for not performing a marriage (intentional infliction of emotional distress?). Will it get far in court? No. We have the separation of church and state for a reason. It keeps the state out of the church, and the church out of the state.
Point three, I completely agree with you. Equal civil unions for any two consenting adults. There is no legitimate reason (in my opinion) to deny any legal rights on the basis of sexual orientation. I would prefer to get a civil union and stay away from marriage. It has had a dark history and is still intwined in patriarchy -- which is why I'd prefer to opt for something that doesn't see gender.

[EricNau]

Marriage was a religious term before it was a religious term.Huh? That makes no sense. ;)
Indeed it doesn't.

Fixed:
Marriage was a secular legal term long before it carried any religious connotations.

...Thanks for pointing that out.

[leekohler]

Indeed it doesn't.

Fixed:


...Thanks for pointing that out.

No problem. It confused me. :)

[itcheroni]

Indeed it doesn't.

Fixed:


...Thanks for pointing that out.

I thought you were being ironic.

[EricNau]

I thought you were being ironic.
I'm not that clever. :p

[Queso]

It's never been gay people's right to marry, marriage always has been in any society between a man and a woman.
I have un Certificado de Boda signed by a Spanish notary that tells me otherwise.

[leekohler]

I have un Certificado de Boda signed by a Spanish notary that tells me otherwise.

Well you don't count! You're from one o' them furrin' countries that don't believe in God! ;):D

[iJohnHenry]

Obviously not. They believe in freedom. :rolleyes:

[Queso]

Well you don't count! You're from one o' them furrin' countries that don't believe in God! ;):D
Them damn Spaniards and their fanatical atheism!!! Famous for it they are!!! :D

[leekohler]

Them damn Spaniards and their fanatical atheism!!! Famous for it they are!!! :D

Yep- y'all are Muslim terr'rists too! Don't lie! We know ya are! :D

[EricNau]

SACRAMENTO, Calif. -- Both houses of the state Legislature have passed resolutions stating that California residents did not have authority to put the gay marriage ban on last year's ballot.

The resolutions passed Monday largely along party lines -- 18-14 in the Senate and 44-27 in the Assembly. The action came days before legal arguments will be heard in the California Supreme Court.

KCRA - Link (http://www.kcra.com/news/18838724/detail.html)

[leekohler]

KCRA - Link (http://www.kcra.com/news/18838724/detail.html)

Good! That is definitely as it should be. This whole thing had better be over ASAP.

[CalBoy]

Kennedy is great because he's truly trying to be objective, which is why gay marriage makes legal sense to him. The judges Obama will replace are going to be the liberal ones, like Stevens, who is my personal fave. I wouldn't get too excited until Scalia leaves.

As long as there are 5 votes, I'm going to be excited. :p :)

For all the bashing, I actually think Scalia is a very good justice. After Ginsburg, he is the next most prepared and thorough with every single case. His one vote doesn't concern me because at least he goes through an ordeal justifying it.

Now Thomas and Alito on the other hand, I'm not so fond of.
KCRA - Link (http://www.kcra.com/news/18838724/detail.html)

I liked this bit from the article:

Andrew Pugno, an attorney for the Yes on 8 campaign, said the resolutions will have no bearing on the legal case. The court, he said, will focus solely on the arguments before it.

"This is simply a political drill, but the court knows that this is not a popularity contest," Pugno said of Monday's action in the Legislature. "All that matters is the law."

Funny how Prop 8 itself is somehow not a political drill, and how Prop 8 matters as law, but equal protection doesn't. :rolleyes:

[lostfan916]

They just said on the news that there will be a live feed in the courtroom and you can watch it on News10.net (http://www.news10.net/). I'm sure other places will have it but they just mentioned this one. They also said it started at 9am PST.

[leekohler]

They just said on the news that there will be a live feed in the courtroom and you can watch it on News10.net (http://www.news10.net/). I'm sure other places will have it but they just mentioned this one. They also said it started at 9am PST.

This is gonna be interesting for sure, not to mention scary.

[lostfan916]

Watch here

http://www.news10.net/news/liveonline/default.aspx?menuid=181

[Gelfin]

Oog. The guy from the AG's office strikes me as far more unprepared than I would have expected.

[leekohler]

I can't watch video at work. Can somebody keep us updated?

[Gelfin]

I was trying to do that, but any hope I may have had for an alternative career as a court reporter is now firmly off the table. I hope there will be a transcript available later.

[leekohler]

I was trying to do that, but any hope I may have had for an alternative career as a court reporter is now firmly off the table. I hope there will be a transcript available later.

Yeah- me too. Calboy! Help us out when you can!

[Lava Lamp Freak]

I thought the statement the one attorney made was funny.

"No, we aren't going to invalidate the 18,000 gay marriages. We're just no longer going to consider them valid or recognize them."

Huh? Same difference.

[leekohler]

I thought the statement the one attorney made was funny.

"No, we aren't going to invalidate the 18,000 gay marriages. We're just no longer going to consider them valid or recognize them."

Huh? Same difference.

Are you serious? He actually said that? My god- that sounds like something Condoleeza Rice would say.

[Gelfin]

I thought the statement the one attorney made was funny.

"No, we aren't going to invalidate the 18,000 gay marriages. We're just no longer going to consider them valid or recognize them."

Huh? Same difference.

"That One Attorney" was Ken Starr. He actually made the argument that the marriages are not invalidated because, should some other state decide to recognize out-of-state same-sex marriages, then those 18,000 California marriages would be valid and recognized there, even if they can no longer be obtained or recognized in California itself. Therefore it is not a retroactive annulment. EDIT: Er, as I suppose all annulments are.:rolleyes:

[leekohler]

"That One Attorney" was Ken Starr. He actually made the argument that the marriages are not invalidated because, should some other state decide to recognize out-of-state same-sex marriages, then those 18,000 California marriages would be valid and recognized there, even if they can no longer be obtained or recognized in California itself. Therefore it is not a retroactive annulment. EDIT: Er, as I suppose all annulments are.:rolleyes:

Wow- I see Starr hasn't changed much. What an a**. Let's hope he keep sit up with that angle. Prop 8 will go down in flames as it should regardless.

[Shivetya]

Their Supreme Court better not dare overturn it. It was an amendment to their state Constitution which makes it law. Read as such it means if anything that decisions can be based on it, no on its validity.

[Shivetya]

Wow- I see Starr hasn't changed much. What an a**. Let's hope he keep sit up with that angle. Prop 8 will go down in flames as it should regardless.

So democracy is only OK if you agree with the outcome? Those who put forth the proposition followed all state laws and the people voted. By the laws of California it was done correctly.

If this can be tossed by the Supreme Court of California it will destroy any trust in the system.

Starr is right so I don't see why your vilifying him. Hell he was right when he caught Clinton. Perjury is OK where?

[Lava Lamp Freak]

So democracy is only OK if you agree with the outcome? Those who put forth the proposition followed all state laws and the people voted. By the laws of California it was done correctly.

If this can be tossed by the Supreme Court of California it will destroy any trust in the system.

Starr is right so I don't see why your vilifying him. Hell he was right when he caught Clinton. Perjury is OK where?

It really is a conundrum. Being that it was legally voted for I don't see how they can throw it out. I think it is wrong that the majority can vote for something that takes rights for something that doesn't affect them away from the minority. The best way to deal with it, I think, is to educate the public and have another vote.

[EricNau]

Their Supreme Court better not dare overturn it. It was an amendment to their state Constitution which makes it law. Read as such it means if anything that decisions can be based on it, no on its validity.
That's the issue: was it an amendment or a revision? The former would make it law, but if it's the latter it requires a 2/3 vote from the state legislature.

The California Supreme Court, regardless of their ruling, will not be overturning anything; they are simply declaring Prop 8 an amendment or revision. If Prop 8 is overturned, it will be the doing of the legislature.


I trust the Court to make the proper ruling, and will support it, regardless of their decision. I strongly believe that Prop 8 was an unfair amendment to the state Constitution, but the Supreme Court Justices are better equipped to make that decision. They will not be ruling in favor, or against, same-sex marriage; rather, they are merely ruling on Prop 8's status as a legal or illegal amendment. We all need to keep this in mind throughout the court trial and ruling.

[Gelfin]

The People of California also enshrined equal protection under the law in their Constitution. What can such protection possibly mean if it is subject to piecemeal rescinsion by a simple majority vote?

The Court is specifically tasked with resolving such matters. So long as Californians do not wish to repeal equal protection entirely, and it would not be unreasonable to suppose they do not, then it would be entirely within the Court's purview to find that the People do not possess the lawful power to amend the Constitution in this way, because allowing it effectively voids a section of the Constitution supporters would not otherwise contest.

[leekohler]

So democracy is only OK if you agree with the outcome? Those who put forth the proposition followed all state laws and the people voted. By the laws of California it was done correctly.

Apparently, that's up for debate. As far as this democracy goes, no one's rights should ever be up for a vote. If our rights can be voted away, then so can yours. That is the antithesis of what the US is all about. And marriage was declared a right by the Court.

If this can be tossed by the Supreme Court of California it will destroy any trust in the system.

Quite to the contrary- if this is found to be improper and struck down it will show that the people can trust the law to protect their rights.

Starr is right so I don't see why your vilifying him. Hell he was right when he caught Clinton. Perjury is OK where?

We aren't talking about Clinton. And Starr is wrong.

[mactastic]

So democracy is only OK if you agree with the outcome? Those who put forth the proposition followed all state laws and the people voted. By the laws of California it was done correctly.
But that's the question the Court is deciding: Was this done properly? If this is determined to be a revision to the Constitution, it most certainly *wasn't* done properly because it would require ratification by the Legislature.

If this can be tossed by the Supreme Court of California it will destroy any trust in the system.
Yes, by people like you. But then again, you've never trusted the activist judiciary, have you?

Starr is right so I don't see why your vilifying him. Hell he was right when he caught Clinton. Perjury is OK where?
When Scooter Libby does it.

Their Supreme Court better not dare overturn it. It was an amendment to their state Constitution which makes it law. Read as such it means if anything that decisions can be based on it, no on its validity.
I'm sure the Court is quaking in their boots at your petulant little "dare".

[Shivetya]

Apparently, that's up for debate. As far as this democracy goes, no one's rights should ever be up for a vote. If our rights can be voted away, then so can yours. That is the antithesis of what the US is all about. And marriage was declared a right by the Court.

Courts can interpret law, not make them. The Constitution of the state declares marriage as that between couples of the opposite sex. As such that is the only right that exist. We don't have to like it but that is how it works. Why are some rights more important than others? Its okay to vote my income away but if someone says the Constitution states marriage is only X it is wrong?

Like I said, too many only want a democracy when it serves them.

[leekohler]

Courts can interpret law, not make them. The Constitution of the state declares marriage as that between couples of the opposite sex. As such that is the only right that exist. We don't have to like it but that is how it works. Why are some rights more important than others? Its okay to vote my income away but if someone says the Constitution states marriage is only X it is wrong?

Like I said, too many only want a democracy when it serves them.

Wrong- no one is talking about the court making law. But courts do have the right to strike down unfair laws. Have you read the other posts here?

Here's the CA Supreme Court decision:

In view of the substance and significance of the fundamental constitutional right to form a family relationship,” Chief Justice George wrote, “the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

http://www.nytimes.com/2008/05/16/us/16marriage.html

[EricNau]

Courts can interpret law, not make them. The Constitution of the state declares marriage as that between couples of the opposite sex. As such that is the only right that exist. We don't have to like it but that is how it works. Why are some rights more important than others? Its okay to vote my income away but if someone says the Constitution states marriage is only X it is wrong?

Like I said, too many only want a democracy when it serves them.
The Supreme Court is acting within full accordance of the State Constitution, as has been clearly explained in the posts above.

[mactastic]

Courts can interpret law, not make them. The Constitution of the state declares marriage as that between couples of the opposite sex. As such that is the only right that exist. We don't have to like it but that is how it works. Why are some rights more important than others? Its okay to vote my income away but if someone says the Constitution states marriage is only X it is wrong?
You obviously don't even read these posts before responding. The Court's basis for review has been stated numerous times. If you choose to keep your head in the sand, that's your business; but it doesn't make you right.

Like I said, too many only want a democracy when it serves them.
I would say the same of you.

[Gelfin]

Courts can interpret law, not make them.

No one has asked the Court to do anything else.

The Constitution of the state declares marriage as that between couples of the opposite sex.

Whether this was a legitimate application of the referendum process is the subject of debate, and the Court felt the question was important enough to hear the cases.

As such that is the only right that exist.

However syntactically arranged, the section does not define a right; it restricts it.

We don't have to like it but that is how it works.

That's very big of us, but your understanding of "how it works" is a little limited. What happened this morning is "how it works."

Why are some rights more important than others?

Why does my right to swing my fist stop where your face begins? The law does not admit that "pursuit of happiness" extends to one's happiness at visiting harm on people one doesn't like.

Its okay to vote my income away but if someone says the Constitution states marriage is only X it is wrong?

No one has ever proposed that you have an inalienable right not to pay for the substantive benefits provided to you by your government. To the extent that you are deprived of property through taxation, that has been accomplished through due process, and without any uneven application to any suspect class.

Like I said, too many only want a democracy when it serves them.

I assume you do not count yourself among them, of course.

[CalBoy]

Oog. The guy from the AG's office strikes me as far more unprepared than I would have expected.

I was only able to watch about two minutes of it in the morning before class; is he the one that went first?
Yeah- me too. Calboy! Help us out when you can!

I'll do my best. :)

For now, I can't even get the darn video to work off the California Supreme Court website. :o

Why are some rights more important than others?

Because they are enshrined by the California Constitution as inalienable. This means that they are yours no matter what. You are conferred such rights because society has acknowledged that you are a fellow human being and deserve a certain minimum level of equal protection under the law.

Its okay to vote my income away but if someone says the Constitution states marriage is only X it is wrong?

Let's not try to compare taxes and equal protection under the law. No government on Earth has ever found taxation to be a violation of fundamental rights. Discrimination for the purposes of discrimination, however, is very much so a violation of equal protection.


Like I said, too many only want a democracy when it serves them.

No, I happen to never want democracy. In fact, if you so rightly believe in the California Constitution, then you too do not believe in democracy.

California, the other 49 states in the Union, and the United States itself are all constitutional republics. This means that we enshrine certain freedoms and liberties in our constitutions while asking elected officials to legislate on our behalf. It also means we expect a judiciary to uphold our rights in the aforementioned constitution.

That's what's going on here. The judiciary is examining whether a specific minority group has had its fundamental freedoms violated.

[Gelfin]

I was only able to watch about two minutes of it in the morning before class; is he the one that went first?

No, I had a meeting this morning, so I came in late. He was last before Starr, actually, and after the blonde woman, Ms. Stewart I think they said. I would like to see the rest of it when I get a chance, since I only caught the very end of her argument and I thought her rebuttal to Starr came off well.

[CalBoy]

No, I had a meeting this morning, so I came in late. He was last before Starr, actually, and after the blonde woman, Ms. Stewart I think they said. I would like to see the rest of it when I get a chance, since I only caught the very end of her argument and I thought her rebuttal to Starr came off well.

The first person to present arguments (against Prop 8) was not so good either. :o He stuttered often and paused even more.

Good luck trying to watch it. The video off the CA Supreme Court website is not great quality and doesn't load like it is supposed to.

I might try a local news station next, because this is getting ridiculous.

[CalBoy]

Ok, so CSPAN's (http://www.c-span.org/Watch/watch.aspx?MediaId=HP-A-16091) link seems to work for anyone who is having trouble. :)

And Lee, I still haven't been able to find a transcript. :(

[leekohler]

Ok, so CSPAN's (http://www.c-span.org/Watch/watch.aspx?MediaId=HP-A-16091) link seems to work for anyone who is having trouble. :)

And Lee, I still haven't been able to find a transcript. :(

Well, hopefully, there will be something tomorrow.

[kastenbrust]

Theres more evidence to support the statement that Jesus was gay than that he was straight so i find this whole Prop 8 mess a big joke. You dont read about Jesus and his 12 ho's do you? No its his 12 Pimp Disciples, and they did an awful loooot of traveling together :p
Its embarrassing for a country that prides itself on being 'the defender of the free world', and its considering Taliban style anti gay policies.

[CalBoy]

Well, hopefully, there will be something tomorrow.

I'll let you know if I find anything, but so far the only thing I have is the CSPAN link.

More importantly, after watching the oral arguments in their entirety, I have to say that I think we're going to lose.

Kennard was not really buying the revision argument, and she especially hated the argument made by the Attorney General (and his very unprepared underling who actually presented the argument).

It seemed like most of the judges are going to uphold the 18,000 marriages from the summer/fall, but that's about it. Without Kennard's vote, it's really over.

[leekohler]

I'll let you know if I find anything, but so far the only thing I have is the CSPAN link.

More importantly, after watching the oral arguments in their entirety, I have to say that I think we're going to lose.

Kennard was not really buying the revision argument, and she especially hated the argument made by the Attorney General (and his very unprepared underling who actually presented the argument).

It seemed like most of the judges are going to uphold the 18,000 marriages from the summer/fall, but that's about it. Without Kennard's vote, it's really over.

It'll be a sad day in the history of the US if we lose. That will mean anyone's rights can be voted away. That is indeed frightening.

[CalBoy]

It'll be a sad day in the history of the US if we lose. That will mean anyone's rights can be voted away. That is indeed frightening.

It is very frightening.

What's even more frightening is that we (as in Americans as a whole) haven't learned our lesson after slavery, women's rights, and Civil Rights. In each case, it took large concerted efforts, and almost always police brutality, to finally have history recognize what was the right thing all along.

It's going to be awfully tough to raise kids if I have to be marching everyday for the next 20 years. :eek::(

[kastenbrust]

It'll be a sad day in the history of the US if we lose.

Plus the rest of the world will be laughing at you.
Its not illegal here in Britain, and noone makes a big deal out of it, its all crazy.

[CalBoy]

Plus the rest of the world will be laughing at you.
Its not illegal here in Britain, and noone makes a big deal out of it, its all crazy.

Just to be clear, California has a similar provision as Britain in terms of civil unions/domestic partnerships. While Federal benefits such as being able to file a joint tax return or having access to Social Security benefits haven't been granted at the national level, California as a state allows gay couples to have many of the same legal protections as married couples.

What the Court was discussing today revolves around the use of the word marriage to describe such unions for gay couples, and whether a slim majority of voters has the power to deprive a specific minority group from use of that word.

[fivepoint]

Can someone please point me to the spot in the constitution where it lays "marriage" out as a "right"? Seems like many of us are jumping to the conclusion that Prop 8 took anyone's "rights" away.

Also a good question to consider... can something that's morally wrong be 'constitutional' and something that's morally correct by 'unconstitutional'? My answer is an unequivocal "yes" but based on some of the opinions here, I'd say many of you disagree.

[leekohler]

Can someone please point me to the spot in the constitution where it lays "marriage" out as a "right"? Seems like many of us are jumping to the conclusion that Prop 8 took anyone's "rights" away.



Please see post number 64. It's only on the previous page. The CA supreme court ruled that it is indeed a right.

[CalBoy]

Can someone please point me to the spot in the constitution where it lays "marriage" out as a "right"? Seems like many of us are jumping to the conclusion that Prop 8 took anyone's "rights" away.

The California Supreme Court laid out its reasoning last May and pointed out that marriage has been a common law right since the dawn of English Common Law.

Also a good question to consider... can something that's morally wrong be 'constitutional' and something that's morally correct by 'unconstitutional'? My answer is an unequivocal "yes" but based on some of the opinions here, I'd say many of you disagree.

Homosexuality is now immoral? If that's what you want to argue, please start a different thread. That is not what this thread is about.

[Gelfin]

Also a good question to consider... can something that's morally wrong be 'constitutional' and something that's morally correct by 'unconstitutional'? My answer is an unequivocal "yes" but based on some of the opinions here, I'd say many of you disagree.

The law is never competent to decide questions of morality. The best approximation it can ever achieve is a balancing of conflicting interests.

[EricNau]

Can someone please point me to the spot in the constitution where it lays "marriage" out as a "right"? Seems like many of us are jumping to the conclusion that Prop 8 took anyone's "rights" away.
It's also worth noting that marriage is explicitly stated as an inalienable right according to the United Nation's Universal Declaration of Human Rights, Article 16.

[SLC Flyfishing]

It's also worth noting that marriage is explicitly stated as an inalienable right according to the United Nation's Universal Declaration of Human Rights, Article 16.

The only issue with that argument is that it can be easily argued that nobody is being prevented from marring in the traditional sense. All human beings of legal age in the USA have equal access to marriage in a traditional sense (with no governmental hinderance that is).

A straight man is equally unable to marry another man, and a gay man will not be prevented by law from marrying a woman. That can be considered equal protection under the law.


SLC

[EricNau]

The only issue with that argument is that it can be easily argued that nobody is being prevented from marring in the traditional sense. All human beings of legal age in the USA have equal access to marriage in a traditional sense (with no governmental hinderance that is).

SLC
Then, at the very least, it's a case of gender discrimination.

[SLC Flyfishing]

The, at the very least, it's a case of gender discrimination.

How so?

[leekohler]

How so?

Isn't that obvious?

[EricNau]

How so?
Should one not have equal opportunity regardless of their gender?

[fivepoint]

Homosexuality is now immoral? If that's what you want to argue, please start a different thread. That is not what this thread is about.

That is NOT what I was saying. Thanks for putting words in my mouth though. Get off your high-horse and have a conversation, not a fight.

[leekohler]

That is NOT what I was saying. Thanks for putting words in my mouth though. Get off your high-horse and have a conversation, not a fight.

How about you tell us exactly what you were saying then? Because I interpreted it the same way as Calboy. I just ignored it.

Try being clear and perhaps you won't be misinterpreted. You say something as unclear and open-ended as what you posted and then when someone says something, you lash out at them?

[.Andy]

That is NOT what I was saying. Thanks for putting words in my mouth though.
You typed it right here;
can something that's morally wrong be 'constitutional'

[Lava Lamp Freak]

can something that's morally wrong be 'constitutional' and something that's morally correct by 'unconstitutional'?

That is quite the open-ended question there. Impossible to even discuss such a topic because of the differences between secular morality and religious morality. Most of the things my religious family considers immoral I consider quite normal and not immoral.

[fivepoint]

If you guys were a little less defensive it would certainly help.

It's pretty obvious. What I was pointing out is that just because gay marriage may be morally correct, doesn't mean it's constitutional and/or protected by the constitution as a "RIGHT". Often times people have the misconception that all good things are in the constitution, and all bad things aren't. Or that the constitution doesn't matter when it doesn't align with our particular world/morality viewpoint.

No wonder quality conversations are hard to come by... any time someone has a different point of view, or isn't COMPLETELY repetitive of the viewpoints of those before them, they get accused of being a bigot.

[leekohler]

If you guys were a little less defensive it would certainly help.

It's pretty obvious. What I was pointing out is that just because gay marriage may be morally correct, doesn't mean it's constitutional and/or protected by the constitution as a "RIGHT". Often times people have the misconception that all good things are in the constitution, and all bad things aren't. Or that the constitution doesn't matter when it doesn't align with our particular world/morality viewpoint.

No wonder quality conversations are hard to come by... any time someone has a different point of view, or isn't COMPLETELY repetitive of the viewpoints of those before them, they get accused of being a bigot.

Who accused you of that? And who's being defensive? Your post was extremely unclear and very open to interpretation. Rather than pointing your finger at us for getting it wrong, you should be saying "oops, my bad for the lack of clarity, here's what I meant to say...". Instead, all you can do is place the blame on us and call us defensive. Sorry, doesn't work that way.

And once again- this has absolutely nothing to do with your POV, since you didn't make it clear in the first place and we didn't even know what it was.

[kastenbrust]

Just to be clear, California has a similar provision as Britain in terms of civil unions/domestic partnerships. While Federal benefits such as being able to file a joint tax return or having access to Social Security benefits haven't been granted at the national level, California as a state allows gay couples to have many of the same legal protections as married couples.

What the Court was discussing today revolves around the use of the word marriage to describe such unions for gay couples, and whether a slim majority of voters has the power to deprive a specific minority group from use of that word.

Just to be clear, Gay marriage is recognized and legal in England by the government, and includes normal marriage tax benefits, child benefits and equal rights to adoption. But not in California if Prop 8 is passed, so sorry, your wrong :)
The law wont magically change in England because a few religious fundamentalists want it to, which is the whole reason for the mocking of your 'democracy'.

[fivepoint]

Who accused you of that? And who's being defensive? Your post was extremely unclear and very open to interpretation. Rather than pointing your finger at us for getting it wrong, you should be saying "oops, my bad for the lack of clarity, here's what I meant to say...". Instead, all you can do is place the blame on us and call us defensive. Sorry, doesn't work that way.

And once again- this has absolutely nothing to do with your POV, since you didn't make it clear in the first place and we didn't even know what it was.

CalBoy accused me of it: "Homosexuality is now immoral? If that's what you want to argue, please start a different thread. That is not what this thread is about."

Also, after conversing with me on this topic several times, Lee. I'd assume you know my stance on gay marriage by now. I'd assume that I wouldn't have to restate my entire worldview in each and every thread because of other people jumping to irrational defensive conclusions regarding my opinions.

Man, this is so tiresome. Talking about the issues is almost impossible because people on both sides end up just end up spending the majority of the time defending themselves against personal attacks.

[fivepoint]

Just to be clear, Gay marriage is recognized and legal in England by the government, and includes normal marriage tax benefits, child benefits and equal rights to adoption. But not in California if Prop 8 is passed, so sorry, your wrong :)
The law wont magically change in England because a few religious fundamentalists want it to, which is the whole reason for the mocking of your 'democracy'.

You could claim that as a reason to mock our people, or culture I guess... but the democracy? Why, because the majority opinion won? How is that a measure of the failure of democracy?

[NT1440]

The law wont magically change in England because a few religious fundamentalists want it to, which is the whole reason for the mocking of your 'democracy'.

And rightfully so.

[NT1440]

You could claim that as a reason to mock our people, or culture I guess... but the democracy? Why, because the majority opinion won? How is that a measure of the failure of democracy?

Because the majority somehow has the ability to take away the rights of the majority.

Pathetic.

[EricNau]

Just to be clear, Gay marriage is recognized and legal in England by the government, and includes normal marriage tax benefits, child benefits and equal rights to adoption. But not in California if Prop 8 is passed, so sorry, your wrong :)
To be clear, gay marriage is not recognized on the UK; you recognize "civil partnerships" much akin to the "domestic partnerships" in California. It does appear that your law carries more rights and more mirrors marriage, but there is still a distinction. Prop 8 has no bearing on the rights afforded to same-sex couples through domestic partnerships in California, which include tax benefits, adoption, parental rights, visitation, wills/trusts, property, etc.

[EricNau]

CalBoy accused me of it: "Homosexuality is now immoral? If that's what you want to argue, please start a different thread. That is not what this thread is about."
There is not an accusation in that quote.

[leekohler]

CalBoy accused me of it: "Homosexuality is now immoral? If that's what you want to argue, please start a different thread. That is not what this thread is about."

Also, after conversing with me on this topic several times, Lee. I'd assume you know my stance on gay marriage by now. I'd assume that I wouldn't have to restate my entire worldview in each and every thread because of other people jumping to irrational defensive conclusions regarding my opinions.

Man, this is so tiresome. Talking about the issues is almost impossible because people on both sides end up just end up spending the majority of the time defending themselves against personal attacks.

Calboy hardly called you a bigot.

ONE MORE TIME- your post was unclear. If it was misinterpreted by people, it's up to you to clarify, not label everyone else as defensive if they didn't understand it.

And once again, you feel the need to play the martyr and say that you're being picked on, when a simple clarification would have been sufficient.

No one is out to get you. No one even has an issue with your POV. What people are frustrated with is your lack of ability to express yourself clearly at times. Then you get upset when it's misunderstood. That's all this is about, nothing more.

[CalBoy]

That is NOT what I was saying. Thanks for putting words in my mouth though. Get off your high-horse and have a conversation, not a fight.

Since you have clarified your position since, there's no need to go further into this. Your post was easily misread by several other posters and interpreted the same way I interpreted it.

If it's going to end this pointless finger-pointing, I'll apologize right now for the false interpretation.
Just to be clear, Gay marriage is recognized and legal in England by the government, and includes normal marriage tax benefits, child benefits and equal rights to adoption. But not in California if Prop 8 is passed, so sorry, your wrong :)

Well you have 'civil unions' in Britain, which is materially equivalent to 'domestic partnerships.' Nations like Spain, Canada, South Africa, Belgium, the Netherlands, and the US states of Massachusetts and Connecticut have full marriage equality.

Until Britain adopts same-sex marriage, it too is playing the 'separate but equal' game like California and a few dozen other states in the US.

The law wont magically change in England because a few religious fundamentalists want it to, which is the whole reason for the mocking of your 'democracy'.

I don't think that's a thing to mock our nation of; sure we have our faults, but the fact that the political process is sufficiently open for people to debate these things is a strength in and of itself. What happened in California is a mutilation of the equal protection clause, but it's ironic that a nation without such a clause is having a chuckle over that.

[iJohnHenry]

Hey, if Gheys are non-persons, they can't be taxed. Right??


Where do I sign-up???? :D

[EricNau]

Hey, if Gheys are non-persons, they can't be taxed. Right??
That seems to be the opinion of Melissa Etheridge.

http://www.thedailybeast.com/blogs-and-stories/2008-11-06/you-can-forget-my-taxes

[bradl]

Can someone please point me to the spot in the constitution where it lays "marriage" out as a "right"? Seems like many of us are jumping to the conclusion that Prop 8 took anyone's "rights" away.


California State Constitution, Article I, Sec. 3, subsection 4:


(4) Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7.


Further more, Article I, Section 7:


SEC. 7. (a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; provided, that nothing contained herein or elsewhere in this
Constitution imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation. In enforcing this subdivision or any other provision of this Constitution, no court of this State may impose upon the State of California or any public entity, board, or official any obligation or responsibility with respect to the use of pupil school assignment or pupil transportation, (1) except to remedy a specific violation by such party that would also constitute a violation of the Equal Protection
Clause of the 14th Amendment to the United States Constitution, and (2) unless a federal court would be permitted under federal decisional law to impose that obligation or responsibility upon such
party to remedy the specific violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution.


This states that no-one may be deprived of anything that is not protected under this and the 14th Amendment.


Also a good question to consider... can something that's morally wrong be 'constitutional' and something that's morally correct by 'unconstitutional'? My answer is an unequivocal "yes" but based on some of the opinions here, I'd say many of you disagree.

Only if you answer my question.

Why is it, 10 years after the 15th Amendment to the US Constitution was ratified, that Southern states began voting and passing laws making it hard for Blacks and illiterate Whites to register to vote and vote, leaving them without a voice for their interests, denying them the right to serve in office, and on juries, when the federal laws stated that no-one shall be prevented from voting based on race, colour, or previous condition of servitude?

A RIGHT, voted away by the people in 10 - 15 States in the south in the 1870s/1880s, starting the era of Jim Crow.

This isn't about marriage anymore, fivepoint; now, it's about civil rights, and how a majority of the people can easily vote define a class of people, and grant/revoke rights to/from that class of people.

What I am surprised in, is that both sides in this argument failed to read. What I mean is that if they read and understood history instead of spewing out platitudes like Starr, asking the wrong questions (Prop. 8 opponents), and looking at similarities with other cases, if the Justices uphold Prop. 8., we are looking at a modern-day version of Jim Crow.

Think about it, and read: even the Wikipedia entry (http://en.wikipedia.org/Jim_Crow) on it, Plessy v. Ferguson, Brown v. Board of Education of Topeka, and the Black Codes (http://en.wikipedia.org/wiki/Black_Codes_in_the_USA). In Africana: The Encyclopedia of the African and African American Experience, Anthony Appiah and Henry Louis Gates had said:


"With white supremacy challenged throughout the South, many whites sought to protect their former status by threatening African Americans who exercised their new rights."


Scary, isn't it?

Even more so, replace Blacks/African Americans with gays/lesbians, and replace 'rights' with 'right to marry'.

Do you honestly think you would be perfectly content with a modern-day Jim Crow on your hands and conscience?

I await your answer.

BL.

[CalBoy]

I await your answer.

Fivepoint isn't actually against same-sex marriage.

His question was more philosophical in nature.

[leekohler]

Fivepoint isn't actually against same-sex marriage.

His question was more philosophical in nature.

Regardless, bradl has a very good point. If the justices ignore this, there will be consequences, and they'll be dire for the whole country.

[CalBoy]

Regardless, bradl has a very good point. If the justices ignore this, there will be consequences, and they'll be dire for the whole country.

Well maybe not the whole country, but definitely for California. Our equal protection clause will essentially be worthless. It will be changeable by a mere majority vote and have the same worth as a statute.

However, if you watched the oral arguments, it's quite clear the justices are more concerned about the right of the people to vote in the initiative process. They aren't going to overturn Prop 8 in any capacity, so they are essentially agreeing that the equal protection clause is open for a simple majority vote, and that they are powerless to do anything in the future.

What will future minorities who encounter discrimination do facing this legal precedent? I hate to think what would happen.

[bradl]

Regardless, bradl has a very good point. If the justices ignore this, there will be consequences, and they'll be dire for the whole country.

What appalls me is that no lawyer brought this up, so unless the judges are doing the research themselves, they won't equate Prop. 8 with Jim Crow. I hope I'm wrong. IANAL, and I could correlate this; why couldn't any lawyer or judge?

Problem is, ignoring it or upholding Prop. 8 will give the same result. So it MUST be rescinded, basing it off of Jim Crow alone. What scares the hell out of me is that if it is upheld, what makes that majority of people want to stop with just gays? Think about it. They could apply that to Blacks, Asians, Hispanics (funnily enough, in about 4 - 5 years time, Whites will be the minority), etc. My parents went through hell during segregation, and fought hard to not only overcome it, but get out of it. I sure as hell don't want any future children I have to have to go through a version of it themselves.

BL.

[Queso]

Just to be clear, Gay marriage is recognized and legal in England by the government, and includes normal marriage tax benefits, child benefits and equal rights to adoption. But not in California if Prop 8 is passed, so sorry, your wrong :)
The law wont magically change in England because a few religious fundamentalists want it to, which is the whole reason for the mocking of your 'democracy'.
Sorry, but you have this wrong. At the moment the UK has "separate but equal" laws covering gay relationships, namely the Civil Partnership Act. At this time there is full parity between a CP and a marriage, but as they are two distinct legal entities there are no guarantees that this will always be the case.

Contrast this with countries such as South Africa, Norway or the US state of Massachusetts, where existing marriage laws were simply extended to cover same-sex relationships to ensure the equality provided is permanent.

The truth is the UK put in a compromise, whereas the Californians, like Spaniards, Canadians and the Dutch, want the full package.

[EricNau]

Just thought I'd add that I was extremely impressed with Ms. Therese Stewart during the oral arguments this morning.

[leekohler]

Just thought I'd add that I was extremely impressed with Ms. Therese Stewart during the oral arguments this morning.

Can you be more specific? What did she say?

[EricNau]

Can you be more specific? What did she say?
Rather than me trying to do her justice with an explanation, you an watch her for yourself here (http://www.calchannel.com/images/sc_030509.html). She appears at around 1:15 and again at at 3:13. :)

[Gelfin]

Can you be more specific? What did she say?

The core of her argument was that the government enacted by the Constitution is meant to protect our liberties, and that the revision rule is intended to avoid too hastily dismantling that protection. To set a higher threshold on acts that modify the safeguards on our liberties than on acts that attack those liberties directly is insane. To cite her metaphor, it's "guarding the moat while the castle burns down." Her position is that the revision rule should thus always apply to any case in which the civil rights of a suspect class are affected by amendment.

[leekohler]

The core of her argument was that the government enacted by the Constitution is meant to protect our liberties, and that the revision rule is intended to avoid too hastily dismantling that protection. To set a higher threshold on acts that modify the safeguards on our liberties than on acts that attack those liberties directly is insane. To cite her metaphor, it's "guarding the moat while the castle burns down." Her position is that the revision rule should thus always apply to any case in which the civil rights of a suspect class are affected by amendment.

That sounds good! Let's hope she keeps it up!

[CalBoy]

The core of her argument was that the government enacted by the Constitution is meant to protect our liberties, and that the revision rule is intended to avoid too hastily dismantling that protection. To set a higher threshold on acts that modify the safeguards on our liberties than on acts that attack those liberties directly is insane. To cite her metaphor, it's "guarding the moat while the castle burns down." Her position is that the revision rule should thus always apply to any case in which the civil rights of a suspect class are affected by amendment.

I really did love that metaphor she used, and of all the attorneys appearing before the Court, I think she did the best job.

If the Court allows Prop 8 to stand, they will essentially be guarding the moat while letting the castle burn down.

Alas the justices (aside from Moreno and Wordegar) don't seem to be too bothered by that.

[CalBoy]

So a new poll today seems to indicate that Prop 8 is relatively safe amongst the electorate at the moment:

Poll: 48 percent of voters would repeal Prop. 8

SAN FRANCISCO—If given another say on same-sex marriage, California's electorate would be just as divided today than it was in November when a gay marriage ban passed with 52 percent of the vote, according to a poll released Tuesday.
The Field Poll of 761 registered voters found that 48 percent of those surveyed would support a new ballot initiative repealing Proposition 8, the same percentage that voted against it four months ago.
The poll had 47 percent of respondents in favor of keeping the ban in place. The remaining 5 percent were undecided, but previous surveys have tended to understate opposition to making gay marriage legal.

http://www.mercurynews.com/news/ci_11877908

And if that weren't bad enough:

No on Prop 8 admits mistakes

Smith also acknowledged that the campaign should have used then-presidential candidate Barack Obama's stated opposition to Prop 8. Instead, little use was made of Obama's opposition in a letter last June to the Alice B. Toklas LGBT Democratic Club, and right before Election Day the Yes on 8 campaign sent out a mailer featuring Obama's image and quotes that he is opposed to same-sex marriage.

http://www.ebar.com/news/article.php?sec=news&article=3769

That article goes on to highlight other failures of the No on 8 Campaign.

So the real question is, considering the justices have all but decided the validity of Prop 8 already (and I'm normally not one to make predictions, but I think this one is a rather safe one), how would a potential reversal of Prop 8 be handled at the ballot box in 2 years? The older population, which is Prop 8's biggest voting block by far, would have some attrition happening, while some more young voters would have joined the fray. Can they make an impact in 2 years, or is this a 4 or 6 year wait we're talking about?

[iGary]

When do we get a ruling?

[CalBoy]

When do we get a ruling?

By June 3rd at the latest, but last year they were about 15 days early, so I'm assuming the same this time around.

Only this time around it's going to be bad news. :(

[leekohler]

By June 3rd at the latest, but last year they were about 15 days early, so I'm assuming the same this time around.

Only this time around it's going to be bad news. :(

Why do you think so? Sorry, I never could get that video to work.

[CalBoy]

Why do you think so? Sorry, I never could get that video to work.

It just went badly for us. The two critical justices who were on our side last time weren't too enthusiastic about overturning an initiative.

I guess the silver lining is that they all (as in all 7) seemed to think the 18,000 marriages should stand, which will be a big help for overturning Prop 8 in 2010.

[EricNau]

It just went badly for us. The two critical justices who were on our side last time weren't too enthusiastic about overturning an initiative.
I agree. It's not so much a reflection on the attorneys for either side, it's just that these justices already held their views before proceedings began.

[CalBoy]

I agree. It's not so much a reflection on the attorneys for either side, it's just that these justices already held their views before proceedings began.

I'm really disappointed by George and Kennard. If they vote how I think they are going to, they're basically going to be saying that their position as justices affords them no power to protect minorities (and what's more, minorities that are in a suspect class).

I can't see how the judiciary can function properly without that power.

[EricNau]

Winning By Losing On Prop. 8
By Jeff Amestoy
Saturday, March 21, 2009; Page A13

The California Supreme Court will uphold Proposition 8, the ban on same-sex marriage passed by the state's voters in November. It is a decision that progressives ought to welcome.

It is ordinarily the better part of wisdom not to predict court decisions on the basis of questions asked by judges at oral argument. But the California Supreme Court left little doubt that it would reject the contention of gay rights advocates that it should ignore the results of the ballot initiative that, in effect, reversed the same court's opinion recognizing same-sex marriages.

The justices appeared to be willing to uphold the 18,000 gay marriages that were performed in California before Proposition 8 passed.

That will bring little comfort to those who looked to California to broaden the path to marriage equality.

Yet, as difficult as the likely outcome of the case will be for those of us who support gay marriage, the court's rationale will almost certainly strengthen a fundamental tenet of the progressive movement: the right of ordinary citizens to maintain authority over their state constitutions.

Early 20th-century progressives had a deep distrust of state judicial authority for the very good reason that many decisions were antithetical to a more just and humane society. The relative ease with which Californians -- and residents of other states -- can amend their state constitutions owes much to the "direct democracy" reforms led by progressives.

When Theodore Roosevelt, the Progressive candidate for president in 1912, proposed the recall of state court decisions to enable "the people themselves" to decide constitutional issues, he was responding to our democracy's inherent tension between judicial authority and democratic legitimacy. And when Larry Kramer, the preeminent progressive scholar of "popular constitutionalism," criticized William Rehnquist's Supreme Court, he noted, "The Supreme Court is not the highest authority in the land on constitutional law. We are."

Unfortunately for supporters of gay marriage, the most pronounced demonstration of popular constitutionalism in recent years has been the adverse response of voters to judicial decisions advancing the constitutional claims of same-sex couples. The idea that judicial authority is not ultimate constitutional authority can be particularly unsettling when citizens choose to amend their state constitutions to limit rather than expand rights.

In fact, the current status of the same-sex marriage issue in our society is largely the product of a critical distinction between state constitutional law and federal constitutional law. Simply put, state constitutional interpretation is not reserved exclusively for judges.

The methods by which voters may amend state constitutions, although varying from state to state, are far more flexible than the process by which the U.S. Constitution may be amended. A decision of the U.S. Supreme Court may be "overturned" by constitutional amendment, but that event is rare. It has happened only four times in our nation's history, and once, it required a civil war. In contrast, in the past decade, citizens in more than two dozen states have amended their constitutions through popular vote to reverse or forestall favorable consideration of gay marriage claims.

State courts stand at the intersection where constitutional law meets direct democracy. Indeed, the progressive movement engineered the traffic pattern. The road may lead to direct judicial recognition of same-sex marriage, unencumbered by voter amendment, as in Massachusetts and Connecticut, or it may lead to court decisions -- such as those in Vermont, New Jersey and California -- that find a constitutional right to all the rights and benefits of marriage.

But every state constitutional court must acknowledge that in a system that preserves the right of citizens to amend their constitutions, a judicial decision may be the opening argument in a process that preserves the ultimate constitutional authority of the people.

The writer is a fellow at the Center for Public Leadership at the Harvard Kennedy School. He is a former chief justice of the Vermont Supreme Court and author of Baker v. State, the 1999 opinion of the court that led to the nation's first civil union statute.

[EricNau]

I thought Amestoy (in the previous post) provided an interesting perspective about this case, and perhaps his point is valid. The "direct democracies" of states may well be in the best interests of the people, when working under the framework of a Federal republic. Ultimately, it's a failure of the US Constitution in failing to protect the rights of same-sex couples.

[CalBoy]

The "direct democracies" of states may well be in the best interests of the people, when working under the framework of a Federal republic. Ultimately, it's a failure of the US Constitution in failing to protect the rights of same-sex couples.

I truly don't see it that way to be honest.

State constitutions grant too much power if they allow themselves to be changed with a 50%+1 majority vote.

I can understand the legitimacy of wanting to give the voters direct access to constitutional amendments, but the threshold needs to be more substantial. Like any other legislature, the people should have supermajorities if they want to make changes to the constitution, and should probably have to work with another branch of the government in order to prevent one branch from becoming too powerful.

[leekohler]

I truly don't see it that way to be honest.

State constitutions grant too much power if they allow themselves to be changed with a 50%+1 majority vote.

I can understand the legitimacy of wanting to give the voters direct access to constitutional amendments, but the threshold needs to be more substantial. Like any other legislature, the people should have supermajorities if they want to make changes to the constitution, and should probably have to work with another branch of the government in order to prevent one branch from becoming too powerful.

So it's official then? Voters can now get rid of other people's rights?

[CalBoy]

So it's official then? Voters can now get rid of other people's rights?

Not official yet, but it's looking to be that way, Lee.

Just to show you how widespread this belief of the Court ruling this way, check out intrade's (http://www.intrade.com/) price listing for "California Supreme Court to overturn Prop 8." Before oral arguments, it was trading slightly below 40; now it's around 10.

[chrmjenkins]

The problem is as CalBoy stated it, too low a threshold to allow it to become law. We have a balanced government in order to prevent too much power, yet a simple majority creates a tyranny of the majority even the judiciary system can't override when they are specifically in existence to judge new laws against what the constitution guarantees. From what I have heard, the argument is not about rights, but whether about the SC has the right to overturn the will of the people.

[leekohler]

The problem is as CalBoy stated it, too low a threshold to allow it to become law. We have a balanced government in order to prevent too much power, yet a simple majority creates a tyranny of the majority even the judiciary system can't override when they are specifically in existence to judge new laws against what the constitution guarantees. From what I have heard, the argument is not about rights, but whether about the SC has the right to overturn the will of the people.

If it infringes on the rights of others, the court most definitely that power. At least it's supposed to.

[chrmjenkins]

If it infringes on the rights of others, the court most definitely that power.

And that's the crux of the travesty. We can only assume that since the government is appointed by us, the laws they put on the books are good for us. Thus, it makes sense to make it harder than a simple majority to overrule their decisions, else why have them in the first place? Instead, a 52% vote creates a law which no branch of our government is willing to treat or challenge. It seems to me, at least, that the only hope of overturning this is by getting the same issue on the ballot again and defeating the previous verdict.

[EricNau]

So it's official then? Voters can now get rid of other people's rights?
Ideally, this issue wouldn't be decided with a State Constitution. If our Federal Constitution properly protect the rights of minorities, this issue would be overturned on that basis; if the Federal Constitution met this obligation, the ease at which state constitutions can be modified would be inconsequential.

[CalBoy]

Ideally, this issue wouldn't be decided with a State Constitution. If our Federal Constitution properly protect the rights of minorities, this issue would be overturned on that basis; if the Federal Constitution met this obligation, the ease at which state constitutions can be modified would be inconsequential.

Of course that's ideal, but unfortunately it isn't reality (and it hasn't ever been).

I did an independent research project on this last semester (40 pages-and well over 50 different US Supreme Court cases :eek:) and the truth is, SCOTUS is a follower. It observes lower courts (and California's Supreme Court is one of the nation's most followed because it's opinions are typically ahead of their time) and then proceeds with caution when it feels that the political timing is right.

So we may have lost this round, but in 8-10 years when the US Supreme Court discusses gay marriage, you can bet that In re Marriage Cases will be heavily relied upon.

[Shivetya]

So it's official then? Voters can now get rid of other people's rights?

they can decide to not grant new rights.

[EricNau]

Of course that's ideal, but unfortunately it isn't reality (and it hasn't ever been).
I've always been a hopeless idealist. :o


Another thing which I think must be considered: if the courts were to overturn Prop 8, would it lead to increased aversion towards the LGBT community, further polarizing the issue and leading to a backtrack in acceptance?

Prop 8 largely represents the prejudice against the LGBT community, a prejudice which cannot be overturned by a court case or our politicians.

Do we really expect the 52% of those who voted in favor of Prop 8 to realize their wrongdoing, in the event that Prop 8 is overturned by the legislature? No, they'd declare themselves victims and further martyrize their position. If, however, we wait for a 3% change in the vote, those who oppose LGBT rights won't have any recourse; they'll have to accept the majority with they toted for so long.

[EricNau]

they can decide to not grant new rights.
Marriage is a recognized right in California, which was purposefully revoked by the electorate. Additionally, marriage is a recognized right according to the UN Declaration of Human Rights, Article 16 (http://www.un.org/Overview/rights.html#a16).

Also, how would any heterosexual couple act if you proposed to invalidate their marriage? Would they not see it as an infringement upon their rights?

[NT1440]

they can decide to not grant new rights.

Well theres a nice way to spin it :rolleyes:

Marriage is not new by any stretch of the mind.

[CalBoy]

I've always been a hopeless idealist. :o

Don't be embarrassed by that; I'm just a jaded political science major! :p


Another thing which I think must be considered: if the courts were to overturn Prop 8, would it lead to increased aversion towards the LGBT community, further polarizing the issue and leading to a backtrack in acceptance?

Prop 8 largely represents the prejudice against the LGBT community, a prejudice which cannot be overturned by a court case or our politicians.

Do we really expect the 52% of those who voted in favor of Prop 8 to realize their wrongdoing, in the event that Prop 8 is overturned by the legislature? No, they'd declare themselves victims and further martyrize their position. If, however, we wait for a 3% change in the vote, those who oppose LGBT rights won't have any recourse; they'll have to accept the majority with they toted for so long.

I definitely think that the gay rights movement has learned a great deal from this battle, and I think that there has been a fire lit under our bellies now which will probably make gay rights move much faster than in the past twenty years.

I have always been troubled by the referendum process, and still am; Prop 8 merely heightened this feeling for me because it struck me on a very personal level. Your point about animosity building towards the LGTB community if Prop 8 were to be overturned by the Court is a very astute one, and I honestly think you are probably correct.

However, while I think we're going to have Prop 8 overturned by the electorate within a matter of 2 or 4 years, I fear what any other future minority will have to go through if we haven't learned our lesson by now. Civil rights was supposed to have ended this, and yet it didn't. If the California Supreme Court allows Prop 8 to stand, future minorities seeking equal protection will only have a history of precedents saying that they have no choice but to go to the voters.

[EricNau]

. . .I fear what any other future minority will have to go through if we haven't learned our lesson by now. Civil rights was supposed to have ended this, and yet it didn't. If the California Supreme Court allows Prop 8 to stand, future minorities seeking equal protection will only have a history of precedents saying that they have no choice but to go to the voters.
You're always one step ahead of me, aren't you? :p

[CalBoy]

You're always one step ahead of me, aren't you? :p

If only we'd all been one step ahead of the Yes on Prop 8 Campaign.:o :(

[stevento]

Thanks for the info. As a state case, I feel pretty optimistic. There really is no logical legal reasoning to deny gays the right to marry. But logic sometimes have little to do with rulings.

if the judge is doing his job, the letter of the law is the only thing that determines ruling. personal opinion has no value.

[CalBoy]

if the judge is doing his job, the letter of the law is the only thing that determines ruling. personal opinion has no value.

The "letter" of the law is that all persons are entitled to equal protection under the law, and that laws that restrict personal freedoms must have a compelling state interest.

Making people feel comfortable with their bigotry is not a rational state interest, let alone a compelling one.

[EricNau]

if the judge is doing his job, the letter of the law is the only thing that determines ruling. personal opinion has no value.
And what about the spirit of the law? There is no legal obligation for a judge in the US to interpret the Constitution purely on letter, nor is there a precedence significantly favoring letter over spirit, or vice versa. The same is true for the California Constitution and the California Supreme Court.

The CA Supreme Court justices (who happen to be both men and women, I might add) are entrusted to interpret the law as they see fit, without direction or bias.