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Discussion in 'Politics, Religion, Social Issues' started by abijnk, Nov 19, 2008.
Lets hope this is quick.
Sounds like the previous ruling settles it already. I don't see how that can be misinterpreted.
I'm no lawyer or California expert, but I think Prop 8 amended the Constitution, which governs laws etc.
What the California Supreme Court said about initiatives was part of their ruling. And I would tend to think that an actual amendment supercedes a court ruling and opinion, especially since the Supreme Court's ruling/opinion was likely based on the CA Supreme Court rights to equality to begin with.
I really don't know. I just wish people would look at their own problems before messing with other people's lives. Why don't the Mormons address problems like the spin off cults in Arizona City. It's OK for people to have hang-ups, just don't burden other people with your hang-ups!
But it would be up to that Supreme Court to interpret if the laws and amendments are constitutional or not. If they aren't, the Court will issue a ruling saying so, effectively killing the amendment.
So that puts us back to May 16th.
According to California law, significant amendments to the Constitution, revisions, require majority approval of voters and 2/3 approval in both houses of the state legislature. That's the issue here: is this a Constitutional amendment, or revision?
In addition to that, I see two other issues:
Prop 8 contradicts other statements in the CA Constitution (notably the equal protection clause). How can you have a constitution that contradicts itself?
Secondly, the language of Prop 8, "only marriage between a man and a woman is valid or recognized in California," clearly intends to invalidate previously legal same-sex marriages. Do you violate the CA Constitution and uphold these marriages, or do you breach ex post facto laws, thus violating the United States federal Constitution? The phrasing makes this amendment nearly impossible to implement.
because the previous ruling threw out a ban on gay marriage because of the CA constitution. prop 8 makes changes to the CA constitution.
I believe that amendments can overturn previously passed parts of the constitution, I think in the US constitution there are the 18th and 21st amendments and I think there are a few other places. What I want to know is if prop 8 was illegal what was the secretary of state doing allowing it on the ballot?
abiyng87 you beat me to it!
[shameless plug]I was tracking the legal developments in this thread.[/shameless plug]
What Lee is saying is that if the California Supreme Court allows Prop 8 to stand as a standard amendment, then it goes back on what they wrote earlier this year.
Specifically, the Court found that the right to marry the partner of your choice was a fundamental right in the California Equal Protection Clause. Prop 8 refines the clause to exclude same-sex couples, which would normally require the approval of 2/3rds of the legislature.
At the time, the legal challenge that was made to Prop 8 was dismissed by the California Supreme Court because they don't like to get involved with ballot issues. They had hoped that voters would turn it down, solving their problem for them.
Now that that has failed, they have to take up the issue. Courts generally don't like to overturn voter-supported measures, but given how close this was, how demographics are changing, how outraged the gay community has become over this theft, and the fact that courts don't like to be overturned by end-runs around the law, I think we'll see this overturned.
It was in a very black and white sense a revision. If the Court sees differently, the Equal Protection Clause of the California Constitution will become meaningless and any right can be removed through a simple majority vote.
They would have to do so specifically, I believe. As an example: "Amendment XXI, section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed." When done in this manner, there is no contradiction, as the prior amendment and its authority are removed in entirely.
I don't see how a contradiction could be allowed. It would be like having two differing speed limits for a given stretch of roadway. How do you know which one to follow?
The Constitutional law is murky at best, but what is coming into sharp focus is the politics. Unfortunately, the State of California gives the voters an opportunity to recall justices on the state Supreme Court. It doesn't happen often, but it does happen -- and backers of Prop 8 have promised that it will if the court overturns the amendment. When the last recall effort happened, one of the recalled justices described the recall threat and how it may have influenced his judicial decisions as "the crocodile in the bathtub." He said, "It was like finding a crocodile in your bathtub when you go to shave in the morning. You know it's there, and you try not to think about it, but it's hard to think about much else while you're shaving."
Parts of constitutions conflict all the time. That's one of the reasons why we have courts, to resolve them. The California Constitution is probably the longest and most complicated state constitution in the nation.
What you have to understand is that prop 8 is not a ban on gay marriage. they already ruled that CA cannot have a ban on gay marriage in May.
What Prop 8 does is it redefines marriage to make gay marriage an oxymoron. that's why prop 8 is constitutional.
How is it different? They redefine marriage as between a man and woman, doesn't that equate to you are not allowed to marry if both of you are of the same sex.
Out of curiosity has anyone attacked same-sex marriage from a gender equality position as opposed to a sexual orientation position? Gender equality has more of a legal history than sexual orientation does in the US and if some people want to define marriage as between 'one man and one woman' they are denying people legal rights based on gender are they not?
Honestly sometimes I think you come in here just to hear yourself talk. Prop 8 IS a ban on gay marriage, 100%. I don't know how that could be more clear.
Please, tell us more.
Leave the law to the experts please; or at the very least learn more about it before you say something that inane.
On a serious note though, there is some not-so-good news in all of this. Justice Kennard dissented when it came to the question of whether or not the Court should hear these cases. That's a very odd move considering that she has been a very strong supporter of gay rights in the past.
Unless she was saying that she is so upset that Prop 8 was put on the ballot that she is dissenting in protest. It's all very iffy. Hopefully she doesn't change her vote, because if she does, the decision will go the other way.
You are right up to a point. Prop 8 isn't just a ban on gay marriage, it is a constitutional ban on gay marriage.
If the CA supreme court upholds Prop 8, then there is definitely an open door to take this to the SCOTUS.
Which I believe would not hear the case, because the issues up until now have been based on the California Constitution. In order for it to be heard by the US Supreme Court, the appeal would have to be based on the equal protection clause of the US Constitution.
Bingo. The case could be made the the California constitution is now in conflict with the US constitution.
Except, over 25 states have already implemented constitutional bans on same-sex marriage without issue.
We can hope that this debacle in CA has gained enough status for SCOTUS to question the issue, but I don't think we're there yet (or if we'd even want them to, given the current configuration).
More than a few of those states have seen negative legal consequences as a result. I know that Ohio's amendment has caused many legal hassles for straight people, not just gay people. The case in California is also different because same sex marriage was already legal.
This line of reasoning makes more sense to me. I mean, I don't really understand the line of reasoning that making marriage between a man and a woman is discrimination based on sexual orientation. I mean, we don't have a constitutional right to marry someone of our choice already. It's already limited by other laws related to age or blood relations, despite the fact that discrimination based on those factors (especially age) has already been banned. Defining marriage as between a man and a woman isn't necessarily discrimination (based on current laws, in my opinion) in the same way that father-daughter dances aren't discriminatory. But if you were to hold a "white-only" father-daughter dance, that would be discriminatory.
So to me it makes much more sense to attack the approval of gender as a basis for law in the quest for gay marriage. It already exists (longer mandated maternity leave than paternity leave, etc.), so I feel that based on those types of laws, defining an institution based on gender (where both genders take part) isn't necessarily discriminatory.
Now if you were to strike down things such as longer maternity leave for women as gender-based discrimination towards men and father-daughter dances towards mothers and sons, then the argument that same-sex marriage is discriminatory is more airtight. Of course, this also seems a lot harder to accomplish.
The legal hook is whether the equal protection issue can be elevated from a state to a national constitutional one. At this point, I would have to say it's unlikely because the entire issue in California is related to the California Constitution. If any same-sex marriage bans in other states have been challenged on the basis of the US Constitution, then I have not heard of it.
That's not to say that I don't believe that equal protection issues are not in play here, only that for whatever reason, these issues have not been presented in a federal case yet, and I doubt that California's will be the first one, given its unique history.
I don't think it will either, unless that particular state has a similar equal protection clause in their Constitution.
I don't either. But pending how it works out in California, and if the other states with bans have that type of clause in their Constitutions, there would be the possibility of 52 individual lawsuits in all states about this. 52 different State rulings that could be appealed to 52 different suits in SCOTUS.
It could be that if there were a federal ban, it would go through fighting the 14th Amendment. So now, it's a State thing.
I don't know enough about constitutional law to know whether the 14th Amendment applies only to federal laws, or to the states. The equal protection language of the amendment suggests that it prohibits the states from depriving its citizens of equal protection under the law, so perhaps it would be possible to fashion an appeal to the US Supreme Court if the California Supreme Court does not void Prop 8. Of course the real question is, would forcing the US Supreme Court to decide this issue now be a good thing in the end?
I guess I just disagree. I think California's unique history is exactly what makes it more likely to make it to SCOTUS, should it be needed. In all the other states (to my knowledge) gay marriages were banned while they weren't being allowed. In this case, 18,000 gay couples are married, and now its being banned. So, there is a different issue that I think could push the whole thing to the SCOTUS.