[iNow]

http://www.latimes.c...0,2453702.story

The California Supreme Court agreed today to review legal challenges to Prop. 8, the voter initiative that restored a ban on same-sex marriage, but refused to permit gay weddings to resume pending a ruling.

The court overturned a ban on same-sex marriage on May 15 in a 4-3 historic decision. Opponents of gay marriage gathered enough signatures to place Proposition 8 on the ballot as a proposed constitutional amendment.

Gay rights advocates argue that the measure was actually a constitutional revision, instead of a more limited amendment. A revision of the state Constitution can be placed before the voters only by a two-thirds vote of the Legislature or a constitutional convention.

Lawsuits to overturn the initiative contend it was a revision because it denied equal protection to a minority group and eviscerated a key constitutional guarantee. Supporters of Proposition 8 counter that it merely amended the constitution by restoring a traditional definition of marriage.

The court's previous rulings on similar lawsuits have been mixed.

So, we discussed much of this already over here:
http://www.sciencefo...t=36247&page=11

I'll offer a summary as I see it (my own interpretation is not objective, but I do believe accurate).


Points supporting Prop 8:

• It is applied equally to all citizens (neither heterosexuals nor homosexuals are allowed to marry someone of the same sex) so it is not discriminatory.
  
  
• It is seeking to redefine marriage away from what was the original intent of those who wrote the constitution
  
  
• Gay people are yucky, and religious-based morality suggests that they are an abomination

Points opposing Prop 8:

• The law itself is inequitible and discriminatory, so discussions about it's application are moot.
  
  
• It goes against the Equal Protection Clause of the 14th Amendment
  
  
• It is counter to the Full Faith & Credit Clause in Section 1 of Article IV
  
  
• There is no legitimate nor relevant secular reason to have such a law since homosexual union does not harm anyone, and therefore it appears to be an invocation of religiously motivated morality, hence clearly against the Establishment Clause of the First Amendment
  
  
• Precedent was set by the allowance of interracial marriages in the mid-20th century, and the parallels between those cases and these are countless
  
  
• It's nothing more than an attempt to institutionalize bigotry

How do you think the Supreme Courts will rule? Do you think they'll cave in for fear of being recalled and/or voted out by an angry religious mob (as was expressly threatened by supporters of prop 8 per the article I shared above), or do you think secular and more libertarian groups will come together to outnumber them? Either way, what do you think the courts will do and why?

[waitforufo]

I think Prop 8 was a legitimate amendment to the California State Constitution. In my opinion a bad one, but none the less an amendment. I think the California Supreme Court will recognize it as such. Even if some of the justices have reservations on the revision versus amendment issue, I believe most will error on the side of caution. Their previous ruling on gay marriage was reversed by the will of the people. The will of the people must be heard. If the court does not do so, they will become or will be perceived as having become doctorial rulers not judges.

I believe in time, hopefully a short time, the people of California will repeal this bad amendment.

[iNow]

waitforufo said:

Their previous ruling on gay marriage was reversed by the will of the people. The will of the people must be heard. If the court does not do so, they will become or will be perceived as having become doctorial rulers not judges.

Perceptions aside, this is exactly the reason I brought up interracial marriage as precendent, specifically, Loving v. Virginia.

http://en.wikipedia....ing_v._Virginia


The "will of the people" was very much opposed to that, but we are not a straight democracy, instead a democratic republic, whereby the founders of the nation without a doubt intended to protect our laws and societyfrom being dictated by the tyranny of the majority.

[Pangloss]

It's a tougher call at this level because now we're talking about taking away the people's right to choose how they wish to be governed. We need to win people's hearts and minds on this issue, not browbeat them into submission. Most people are still opposed to gay marriage. Perhaps we should just live with the fact that some states are going to be opposed to the idea for a while longer, and settle for the fact that other states will allow it. Progress is progress.

Push too hard and you could see a constitutional amendment banning gay marriage that the US Supreme Court could do nothing about. Remember, most Democrats are also opposed to the idea. That doesn't mean an amendment is likely, but I think it's a valid concern.

But there's the Progressive Way rearing its head again, ready to stimulate the far right back into action, eh? Push, push, push, never say die, our way or the highway. How far away is that mid-term election again?

[iNow]

Pangloss said:

It's a tougher call at this level because now we're talking about taking away the people's right to choose how they wish to be governed. We need to win people's hearts and minds on this issue, not browbeat them into submission. Most people are still opposed to gay marriage. Perhaps we should just live with the fact that some states are going to be opposed to the idea for a while longer, and settle for the fact that other states will allow it.

But this approach, then, is counter to the Full Faith and Credit Clause in Section 1 of Article IV.

[Pangloss]

Fine, ban it and see what happens. All I'm saying is that if you ask the question "hey, what's the worst that could happen?", you may not like the answer.

[iNow]

Pangloss said:

Fine, ban it and see what happens.

There's no need for such a curt response. I'm showing clearly how these approaches are unconstitutional. I welcome effective arguments to the contrary. I don't perceive the argument of "beware the hornet's nest into which you're poking your stick" to counter any of the constitutionally supported logic I've been presenting on this.

[ecoli]

I'm surprised it got there that quickly... don't these things usually take a few months, if not more, to get to the supreme court?

[iNow]

Good question. It's the California State Supreme Court, not SCOTUS. Also, it looks like they won't review it until March according to the article I shared.

[ecoli]

iNow said:

Good question. It's the California State Supreme Court, not SCOTUS. Also, it looks like they won't review it until March according to the article I shared.

oops... that'll teach me not to read the OP/link.

[Pangloss]

I didn't mean that to be curt, I meant it to be non-committal. I don't think you're wrong in your analysis at all, and I've no idea how this will go. :-)

[iNow]

No worries. We're good, mate.

[Mr Skeptic]

I get the impression that this will be like our last thread, only this time in the real world, only that it will go on and on for much longer. But eventually, gays will be given equivalent rights as straight people, even if it is not called marriage. It may take the old geezers dieing out for this to happen, so it might take a while. Or it might not.

[DJBruce]

Although I have no problem with the court over turning a law passed by the legislature I am against them overturning an amendment passed not by the legislature but, by the people. In my opinion the job of the court is to rule whether a law is counstinutional. To me a constitution is a pact between the people and the government on what the people wish the government to do and what they are willing to give up in order to allow the government to do this. If the people directly amend the constitution to me this means that the people have redefined the relationship they wish to have with the government. So the in my opinion the court should have no say in whether it is legal because here the people are literally defining what the feel should be legal.

[ecoli]

DJBruce said:

Although I have no problem with the court over turning a law passed by the legislature I am against them overturning an amendment passed not by the legislature but, by the people. In my opinion the job of the court is to rule whether a law is counstinutional. To me a constitution is a pact between the people and the government on what the people wish the government to do and what they are willing to give up in order to allow the government to do this. If the people directly amend the constitution to me this means that the people have redefined the relationship they wish to have with the government. So the in my opinion the court should have no say in whether it is legal because here the people are literally defining what the feel should be legal.

But if it violates the federal constitution, can't the court still rule it illegal on that basis? The above mentality could have been applied to supporting the Jim Crow laws in the south, despite the obvious violation of the constitution.

[iNow]

Indeed. I believe that bit is also covered in Article IV.


http://www.usconstit...t.html#Article4

Article. IV. - The States

Section 1 - Each State to Honor all others

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect.


Section 2 - State citizens, Extradition

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Now, some may reference the idea of dual sovereignty, whereby any powers and rights not explicitly covered by the federal constitution can be handled by the state. State constitutions are clearly easier to amend, but since the federal constitution covers these rights, and has authority for any rights explicitly spelled out within, I think this idea of amending the state constitution in this way is moot. I'm no constitutional scholar, but the federal authority usurps the state authority since the equal protection and rights clauses applying to all citizens born in the US are explicitly stated at the federal level.

This post has been edited by iNow: 20 November 2008 - 05:24 AM

[Severian]

You forgot one of the pros supporting proposition 8: it was agreed by a democratic vote.

You may be of the opinion that democracy doesn't work (fine, up to you), but you must recognize that active opposition to it (i.e. more than just stating your opinion) is fundamentally undemocratic.

[DJBruce]

You are correct that if the state constitution was in conflict with the federal constitution then yes the United States Supreme Court could rule the amendment unconstitutional. Although I feel the grounds on which that case would be made would be shaky at best. The Equal Protection Claus has normally been judged with three scructinty levels and issues involving sexual orientation normally use the least scrutiny. This test is "applied by asking whether the governmental action at issue is a rational means to an end that may be legitimately pursued by government" (wiki). So the constitutionality of this case would be shake. I do not quite understand your point on Article IV Section 1 and 2.

[waitforufo]

The court challenge mentioned in the first post of this topic revolves around whether or not California law was properly followed in amending the California State Constitution. If the law was properly followed then the Constitution is amended. Judges within the state, including the state supreme court must apply that law regardless of its moral bearings. If the amendment strips people of their rights as guaranteed by federal constitution, then the amendment could be struck down in federal court.

So let's say California, through constitutional amendment, banned left handed people from marriage. Could the California Supreme Court reject such an amendment? I don't see how. Well, they could if the law by which the constitution is amended was not properly followed.

By the way I'm not a big fan of initiatives in general. In many (most?) states, the law cannot be changed by initiative. Changing a state constitution by initiative seems like a rather bad idea to me. To do so by simple majority seems even a worse idea. But that’s the law in California.

[doG]

Severian said:

You forgot one of the pros supporting proposition 8: it was agreed by a democratic vote.

That could actually be seen as a con. We are not a democracy. We have a republican form of government to protect minorities from the majority. Placing issues on the ballot are an attempt to use democracy to circumvent our republican government. Article 4 Section 4 guarantees all States a republican form of government and the 14th Amendment guarantees the people of those states that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." IMO. using democracy via the ballot to circumvent representative democracy violates that due process when the majority uses it to oppress a minority.