NationStates Jolt Archive

The Supreme Court of California is currently leaning toward upholding Proposition 8, the California ballot initiative which changed the state's constitution to ban same sex marriages.
Responding to Prop 8 opponents a couple of the justices said it was more important to protect the soveriegnty of the people of California to make their own laws and constitutions without outside interference.

Pressed to define the difference between an amendment and revision, Shannon Minter of the National Center for Lesbian Rights, lawyer for one group of same-sex couples, said, "A majority can't take away a fundamental right only from members of a group historically subject to discrimination."

But George said voters had done just that in previous ballot measures that restricted school busing for integration and banned affirmative action based on race or sex in government programs.


Kenneth Starr, lawyer for Protect Marriage, the sponsor of the ballot measure, argued that Californians have a virtually unlimited power to amend their Constitution.

"Rights are in the power of the people," said Starr, the law dean at Pepperdine University and formerly the special prosecutor in the impeachment of President Bill Clinton.

He said past rulings have classified initiatives as constitutional revisions only if they would cause a "far-reaching change in the basic structure of government," like a 1990 ballot measure that would have eliminated California judges' authority to define constitutional protections for criminal defendants.

Starr also argued that Prop. 8 was a modest measure that left the rights of same-sex couples undisturbed under California's domestic-partner laws and other statutes banning discrimination based on sexual orientation.

The initiative "does not erode any of the bundle of rights that this state has very generously provided," he said, but merely "restores the traditional definition of marriage."

Several justices seemed to agree. Kennard said the voters arguably "took away the label of marriage, but ... left intact most of what this court declared," including unprecedented constitutional protections for gays and lesbians.

Christopher Krueger, a senior assistant in Attorney General Jerry Brown's office, also urged the court to overturn Prop. 8, saying the equality and individual liberty at the heart of last year's ruling were "inalienable rights" that should not be subject to a majority vote.

The court seemed unconvinced. Justice Carol Corrigan said Krueger appeared to be arguing that the people have a right to amend the Constitution "unless they do it in a way that this court doesn't like."

"Another member of last year's majority, Justice Joyce Kennard, said the challenge to the Prop. 8's legality brought by advocates of same-sex marriage involved "a completely different issue" from the court's ruling that the marriage laws violated gays' and lesbians' rights to be treated equally and wed the partner of their choice.

"Here we are dealing with the power of the people, the inalienable right, to amend the Constitution," Kennard said. Speaking to a lawyer representing same-sex couples, she said that if advocates of same-sex marriage want to overturn the voters' decision, "you have the right to go to the people and present an initiative."

There were some indications of divisions among the justices on the validity of Prop. 8 during the hearing, which lasted more than three hours at the court's San Francisco headquarters. But on a separate issue, all seven appeared to agree that the 18,000 same-sex couples who married in California before Prop. 8 passed would remain legally wed.

"When the highest court of the state declares that same-sex couples have the right to marry ... how can one deny the validity of those marriages?" asked Justice Marvin Baxter, who dissented from the May ruling throwing out the opposite-sex-only marriage law.

Relying on that ruling, thousands of gays and lesbians "upended their lives, changed their property responsibilities with their spouses," said Justice Ming Chin, another dissenter from that decision. "Is it really fair to throw that out?"

If the justices' questions were any indication, the court will allow Prop. 8 to ban same-sex marriages as of Nov. 5, the day after it passed with 52 percent of the vote. A ruling is due within 90 days.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/05/BALP169S2G.DTL&type=news

So if you are gay and you married before Prop 8 you are still married, but if you are gay and you are not married, you will not be allowed to marry in the state of California as of Nov 4, 2008.

The Supreme Court appears to be saying that California's soverignty is much more important. It does not help that you have gays from other countries and other states invading California trying to impose a different system of government from the outside. It violates the inalienable rights of the people of California to pick their own laws and write and rewrite their own constitution.

An official ruling will be made in 90 days. But this is how it looking.
Those gay people should not have brought in all those outsiders to dictate to Californians how to run their own state. They might have gotten a more sympathetic ear otherwise.

In before righteous outrage.

I agree with the decision. The voice of the people is the most important organ of our government.

That's a pretty misleading title.

dk?

Jumping the gun just a little, no?

The Supreme Court appears to be saying that California's soverignty is much more important.

It has nothing to do with sovereignty.

California's people vote to pass Prop. 8: California is sovereign.

California's Supreme Court votes to overturn Prop. 8: California is still sovereign.

It does not help that you have gays from other countries and other states invading California trying to impose a different system of government from the outside.

Hyperbolic non sequitur.

It violates the inalienable rights of the people of California to pick their own laws and write and rewrite their own constitution.

No, it doesn't. Nobody is stuffing ballot boxes with the votes of non-Californians.

Those gay people should not have brought in all those outsiders to dictate to Californians how to run their own state. They might have gotten a more sympathetic ear otherwise.

You do realize that the proponents of Prop. 8 have been supported by outside help continually?

Jumping the gun just a little, no?

He already started masturbating. ;)

The principle of Truth in Advertising would require the thread title to be edited from:

"Supreme Court Upholds Prop 8"

Which is false because the decision has not been made yet, and changed to something like:

"You wish and hope that the CA Supreme Court will uphold Prop 8."

Those gay people should not have brought in all those outsiders to dictate to Californians how to run their own state. They might have gotten a more sympathetic ear otherwise.

Just like how the voters of California turned on the Prop 8 supporters once all the money and troops started flowing in from Utah?

Oh wait, you're telling me you have no fucking idea what you're talking about at all? I am shocked to hear this.

The voice of the people is the most important organ of our government.

They have done some fairly idiotic things lately. Like Richard Nixon said, even the majority can be tyrannous, and there are some rights which even democracy should not be allowed to destroy.

In before righteous outrage.

I agree with the decision. The voice of the people is the most important organ of our government.

What decision?

I really hope this doesn't come to pass. It's not sovereignty that matters in this case, it's human rights. Any just society will put the rights of an individual above the sovereignty of a mass, otherwise we end up with the tyranny of the majority, which would destroy every principle this nation was founded upon.

Those gay people should not have brought in all those outsiders to dictate to Californians how to run their own state.

'Those gay people'?

The irony is that the only argument against 'those gay people' is religious, which is bringing the biggest 'outsider' to bear in terms of how people can live their lives.

At most 'those gay people' are bringing in fellow humans whereas 'those righteous people' are basing their judgement on the vague orders of an imaginary figure.

Laughable really... if it wasn't so serious.

:rolleyes:

I'd be tempted to say something yellow card-worthy, but I'm too busy following the actual case instead of someone's purposefully misleading and flame-baiting interpretation.

:rolleyes:

I'd be tempted to say something yellow card-worthy, but I'm too busy following the actual case instead of someone's purposefully misleading and flame-baiting interpretation.

but that's where all the fun is

Don't count your chicks before they are hatched, there's, IIRC, 3 different arguments before the court and just because the justices were seemingly unimpressed with one doesn't mean that they will rule that way or be inclined to drop the other two.

In before righteous outrage.

I agree with the decision. The voice of the people is the most important organ of our government.

And if the voice of the people proclaimed that all people who use the online alias VirginiaCooper were considered to hold the status of "Un-person" and could be shot on sight?

And if the voice of the people proclaimed that all people who use the online alias VirginiaCooper were considered to hold the status of "Un-person" and could be shot on sight?

I was gonna say that...or something similar at least...

What decision?

The inevitable one?

And if the voice of the people proclaimed that all people who use the online alias VirginiaCooper were considered to hold the status of "Un-person" and could be shot on sight?

Sorry, this un-person only deals with non-ridiculous hypotheticals.

Also - some things are clearly against the law. I am not an advocate of pure majority rule. But the courts need to stay out of many things they have decided to get into.

The inevitable one?

That separate is equal, blacks aren't people and women are too dumb and frail to be entrusted with the right to vote?

Yes, terribly inevitable.

The inevitable one?


Takes a lot of balls to agree with a decision before it's made. Remember you said that. ;)

That separate is equal, blacks aren't people and women are too dumb and frail to be entrusted with the right to vote?

Yes, terribly inevitable.

I'm sorry? The courts will side with those upholding the will of the majority. It is inevitable.

Takes a lot of balls to agree with a decision before it's made. Remember you said that. ;)

Hey, just cause some folks on here think I'm a girl, doesn't mean I am. I've got balls. If I'm wrong, I will stand before you personally and apologize LG, but I don't think I will be.

Sorry, this un-person only deals with non-ridiculous hypotheticals.

Also - some things are clearly against the law. I am not an advocate of pure majority rule. But the courts need to stay out of many things they have decided to get into.

So--keep the courts out of marriage rights, but keep the church in our bedrooms?

I'm sorry? The courts will side with those upholding the will of the majority. It is inevitable.

Desegregation WASN'T the will of the majority. The Court had to declare it un-Constitutional and many people had to fight tooth and nail to enforce it.

So--keep the courts out of marriage rights, but keep the church in our bedrooms?

It has nothing to do with marriage rights, or churches, or anything. To me, it is simple democracy. Specifics don't matter.

Desegregation WASN'T the will of the majority. The Court had to declare it un-Constitutional and many people had to fight tooth and nail to enforce it.

We aren't talking about that, are we? I'm not so single-minded as to eliminate pragmatism entirely.

I would also point out that de-segregation wasn't. We are still by-and-large a segregated country.

It has nothing to do with marriage rights, or churches, or anything. To me, it is simple democracy. Specifics don't matter.

Unfortunately for you, simple democracy is not the law of our republic. It's a constitutional democracy.

Unfortunately for you, simple democracy is not the law of our republic. It's a constitutional democracy.

I was wondering when someone would try and ride this tired horse.

the court of Californian is in a tough position, to rule an amendment to the constitution is unconstitutional is a power i do not want to give the court.
Let it go to the Us supreme court and hope one of the conservative judges retires and obama gets to appoint one before it comes to trail.
Though to be honest you will likely get a chance to vote to appeal on this before it hits SCOTUS.

I'm sorry? The courts will side with those upholding the will of the majority. It is inevitable.



Hey, just cause some folks on here think I'm a girl, doesn't mean I am. I've got balls. If I'm wrong, I will stand before you personally and apologize LG, but I don't think I will be.

No need to apologize, just keep agreeing with the decision. :D

I was wondering when someone would try and ride this tired horse.

Right then. Applying the troll stamp now and moving on.

.... This is a highly misleading title.

Right then. Applying the troll stamp now and moving on.

http://blog.nj.com/hg_impact_style/2007/12/medium_frank.jpg

Let it go to the Us supreme court and hope one of the conservative judges retires and obama gets to appoint one before it comes to trail.

There are no federal constitutional matters at issue here--in part because the people driving court efforts to legalize same-sex marriage don't want it to go to the Supreme Court, lose, and establish the loss as precedent.

There are no federal constitutional matters at issue here--in part because the people driving court efforts to legalize same-sex marriage don't want it to go to the Supreme Court, lose, and establish the loss as precedent.

there is the whole discrimination precedent.
The statutes outlawing interracial marriage were over turned by the supreme court. It would be better to have more states legalize the matter first.

Or is this just that whole revision versus amendment thing.

I was wondering when someone would try and ride this tired horse.

come again? The USA is nothing if not a constitutional democracy, where the will of the majority is enforced except when it would conflict with human rights.

Rolling squid;14576348']come again? The USA is nothing if not a constitutional democracy, where the will of the majority is enforced except when it would conflict with human rights.

:tongue:

Or is this just that whole revision versus amendment thing.

This. (Well, that, and some related questions, but all pretty narrowly tied to the California Constitution.)

:tongue:

is designed to be. happy?

This. (Well, that, and some related questions, but all pretty narrowly tied to the California Constitution.)

to be honest the Californian Constitution really doesn't define those(along with a lot of other things in there). I swear the Constitution of California was written by idiots.

Rolling squid;14576364']is designed to be. happy?

Amusement directed at your idealistic naïveté.

to be honest the Californian Constitution really doesn't define those(along with a lot of other things in there).

Well, past Court decisions make the picture a little clearer.

I swear the Constitution of California was written by idiots.

I still am rather bothered by the idea that amendments can be passed by initiative and majority vote. Who came up with that idea?

Amusement directed at your idealistic naïveté.

is kind of designed to be.

In before righteous outrage.

I agree with the decision. The voice of the people is the most important organ of our government.

I agree with the judges seeming decision, though I disagree with Prop 8.

Sure, marriage should be widely reformed, but we live in a government that derives power from the people, when an issue is put to democratic action, that action should be upheld, or we are no longer democratic.

I agree with the judges seeming decision, though I disagree with Prop 8.

Sure, marriage should be widely reformed, but we live in a government that derives power from the people, when an issue is put to democratic action, that action should be upheld, or we are no longer democratic.

You forget the second part of how our government works. Power is derived from the people, however, this power is given in exchange for protection of basic rights. The argument is that marriage is such a right, and can therefore not be taken away by the people.

Proposition 8 is and remains horseshit. It wasn't about gay marriage. The ads said, "Protect California children."

Read that again. Protect California children.

How the FUCK does preventing gays from being legally married protect ANYONE... let alone children? Answer me that. Anyone.

I've yet to meet anyone, offline or on, who can give a rational answer to that. Because there is none: it was just a stupid scare tactic, painting gay marriage as some strange threat to children. Apparently, gay people are malevolent child abusers.... but fortunately for California children, they are harmless once deprived of the right to marry! *Whew* close one!


It does not help that you have gays from other countries and other states invading California

This is the exact type of bigoted scare-word spam that gets spewed in favor of Proposition 8. Just keep bringing those words out - invasion, protect the children... you alienate yourself and highlight the homophobia which is at the root of the Prop 8 movement.

No. "The gays" are not "invading."

It violates the inalienable rights of the people of California to pick their own laws and write and rewrite their own constitution.

Oh, that's rich. Yes, it's about the rights of all Californians... except gays, I guess. But that's OK, gays are invading! Why, they're just like terrorists!

An official ruling will be made in 90 days. But this is how it looking.
Those gay people should not have brought in all those outsiders to dictate to Californians how to run their own state.

So, like, I'm sure you live in California, right? I mean since you care so much about our sovereignty, our rights, and our children...?

Rolling squid;14576403']You forget the second part of how our government works. Power is derived from the people, however, this power is given in exchange for protection of basic rights. The argument is that marriage is such a right, and can therefore not be taken away by the people.

Democracy.

Demos = people

cracy = government.

This whole debate, is of course discounting the REpublicanism in our government, but thena gain the vote for Prop 8 was democratic, so that issue can be overlooked.

I maintain that the people are the ultimate sovereign, even above basic rights. The cost of giving power to the people, is that we must abide by how the votes go. Again, I don't support prop 8 morally... legally I feel there is no good argument against it.

Democracy.

Demos = people

cracy = government.

This whole debate, is of course discounting the REpublicanism in our government, but thena gain the vote for Prop 8 was democratic, so that issue can be overlooked.

I maintain that the people are the ultimate sovereign, even above basic rights. The cost of giving power to the people, is that we must abide by how the votes go. Again, I don't support prop 8 morally... legally I feel there is no good argument against it.



We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness


Gives us a certain bit of legal play when it comes to this issue, and legal technicalities take a back seat to human rights. So there is a case against prop 8.

Rolling squid;14576427']Gives us a certain bit of legal play when it comes to this issue, and legal technicalities take a back seat to human rights. So there is a case against prop 8.

Umm... thats the Declaration of Independance. It doesn't have any actualy legal use... unless the UK wanted to try taxing us or something.

Nice try though.

Umm... thats the Declaration of Independance. It doesn't have any actualy legal use... unless the UK wanted to try taxing us or something.

Nice try though.

Thought the Declaration could be used in some sort of intent clause when it came to interpreting the Constitution.

Rolling squid;14576427']Gives us a certain bit of legal play when it comes to this issue, and legal technicalities take a back seat to human rights. So there is a case against prop 8.

But 'basic human rights' is a very loose term. Also, these 'basic human rights' that are ensured are granted by state, and federal constitutions... California voted to change the constitution. Legally, gay marriage is not a protected basic human right in California.

Like I said, morally, I'm against it, if I lived there, I'd be calling my local representative to try and bring the vote around again, and when the vote comes to MN (which I've heard might be happening soon) I'll be there at the polls.

Well, past Court decisions make the picture a little clearer.



I still am rather bothered by the idea that amendments can be passed by initiative and majority vote. Who came up with that idea?
the simple majority is a bit much. 60% would be more reasonable.
well other things too for instance they have term limits. But they don't define when it counts as a full term. can Arnold run again ??? Don't know the law is vague. The law should never be Vauge. besides as big as the constitution of California is they should be able to define each and every word used.

Fair enough, on a state level, maybe no dice, but on a national level, (which is where this is heading, hopefully), I've got firm legal ground.

Rolling squid;14576444']Thought the Declaration could be used in some sort of intent clause when it came to interpreting the Constitution.

I guess it depends on the legal lawyers themselves. Though you have to remember that the government first spawned from the Declaration fell apart (the Articles of Confederation).

The way I view the Declaration is basically a fancy way of telling England to shove. Though I could see it being a factor, depends on who is doing the interpreting.

I maintain that the people are the ultimate sovereign, even above basic rights.

So what happens when people of a certain skin color or religious background argue that the minority of a different skin color and/or religious background are unpeople, fit only to serve as beasts of burden in perpetuity or killed?

Rolling squid;14576454']Fair enough, on a state level, maybe no dice, but on a national level, (which is where this is heading, hopefully), I've got firm legal ground.

On this issue, I actually tend ot be a Statist. I like the State sovereignty... so I feel gay marriage should be a state-by-state vote issue, merely to indulge the idea of self-determination. Also I don't think very many bans on gay marriage will be around for too much longer.

So what happens when people of a certain skin color or religious background argue that the minority of a different skin color and/or religious background are unpeople, fit only to serve as beasts of burden in perpetuity or killed?

Then I vote against such a course of action.

Then I vote against such a course of action.

And what if they outnumber you? What if they outnumber the people they wish enslaved or destroyed? The will of the majority, you said after all, should be the ultimate sovereign.

How the FUCK does preventing gays from being legally married protect ANYONE... let alone children? Answer me that. Anyone.

I've yet to meet anyone, offline or on, who can give a rational answer to that. Because there is none

Everyone knows that Gayitus (or, in layman's terms homosexuality) is primarily spread to humans who have undeveloped immune systems, typically with airborne pathogens that are released at legally binding gay weddings.

I'm kidding. (I figure that should be obvious... but I just wanted to clarify that I don't actually believe anything I just said... except the part where I said I was kidding, I mean that.)

And what if they outnumber you? What if they outnumber the people they wish enslaved or destroyed? The will of the majority, you said after all, should be the ultimate sovereign.

Indeed I did, and I stand by my statement.

Notice that we once had slavery? That went away, and such discrimination seems unlikely to occur again.

Indeed I did, and I stand by my statement.

Notice that we once had slavery? That went away, and such discrimination seems unlikely to occur again.

I also notice that slavery was done away with not by the majority, but by the minority who held power, and as a means of destabilizing the power of the majority slaveholders. I would also point out that for nearly 100 years after slavery was officially done away with, it continued de facto at gunpoint from the majority.

Were the majority to be the ultimate sovereign, then slavery would not have been done away with.

I guess it depends on the legal lawyers themselves. Though you have to remember that the government first spawned from the Declaration fell apart (the Articles of Confederation).

The way I view the Declaration is basically a fancy way of telling England to shove. Though I could see it being a factor, depends on who is doing the interpreting.

my understanding is that we go to the federalist papers and some of the personal correspondents of the writers of the constitution.

the declaration of Independence however was written was written by Jefferson who was out of country when it was written (I think he was scamming France for the Foreign aid that bankrupted them and caused the French revolution). so i don't think the declaration of Independence is normally used to interpret the constitution.


though not a constitutional lawyer so better to ask NEO ART.

Rolling squid;14576348']come again? The USA is nothing if not a constitutional democracy, where the will of the majority is enforced except when it would conflict with human rights.

I know the US is a constitutional democracy, but what that exactly means in specific situations is not always set in stone.

Is marriage a "human right"?

Rights, huh? Let's ask the expert;

http://www.youtube.com/watch?v=4F1Lq1uFcAE

:)

I maintain that the people are the ultimate sovereign, even above basic rights. The cost of giving power to the people, is that we must abide by how the votes go.
But the benefit of employing a form of government like a constitutional republic is that there are some safe guards to try and protect humans rights abuses. Also the very structure of the US government seems to disagree with you considering that there is a constitution and judicial review.


Sure, marriage should be widely reformed, but we live in a government that derives power from the people, when an issue is put to democratic action, that action should be upheld, or we are no longer democratic.

You are a federal constitutional republic, that's better than being purely democratic in the strictest sense. The reason that democracy is so good and so desirable is that in minimizes corruption and generally improves its citizens quality of life. Therefore when democracy limits the citizens rights and quality of life than it should be limited, there is no reason for it to continue without boundaries. Democracy isn't good in and of itself, it is good because it usually yields better results. But having constitutional safe guards yield even better results so they should have the ability to limit democracy.

I also notice that slavery was done away with not by the majority, but by the minority who held power, and as a means of destabilizing the power of the majority slaveholders. I would also point out that for nearly 100 years after slavery was officially done away with, it continued de facto at gunpoint from the majority.

Were the majority to be the ultimate sovereign, then slavery would not have been done away with.

Where are you getting your facts? Abraham Lincoln was elected to the Office of the Presidency and the Congress that served during his term and the state legislatures that presided while he was President were all democratically elected to their posts. And thus, the 14th Amendment was born.

Democracy. Its a beautiful thing, folks.

The majority of people never held slaves anyways. They were not rich enough. You would have been better off talking about Jim Crow laws - go ahead and give those a shot.

Sorry, this un-person only deals with non-ridiculous hypotheticals.

<Applause> Way to evade!

Also - some things are clearly against the law. I am not an advocate of pure majority rule.

Just when said majority agrees with you?

But the courts need to stay out of many things they have decided to get into.

The court being involved in an equal protection of peoples rights isn't exactly new. Nor is going against the will of the masses to do so (see Brown V. the Board of Education).

I know the US is a constitutional democracy, but what that exactly means in specific situations is not always set in stone.

Is marriage a "human right"?

I would say so, and the courts of California seem to have ruled so prior to Prop 8.

<Applause> Way to evade!

Yes, I evaded your absurd, exaggerated hypothetical. I'm so devious!

Just when said majority agrees with you?
Its not about agreeing with me. Its about an agreement in general being reached. However, there are basic human rights that need protecting - as everyone has the right to self defense, this can be rendered on a national level as laws against murder. As there is a right to private property, laws against theft are born. However, there are very few of these natural rights.

Yes, I evaded your absurd, exaggerated hypothetical. I'm so devious!


Its not about agreeing with me. Its about an agreement in general being reached. However, there are basic human rights that need protecting - as everyone has the right to self defense, this can be rendered on a national level as laws against murder. As there is a right to private property, laws against theft are born. However, there are very few of these natural rights.

Marriage is one of them, see Loving V. Virginia.

Where are you getting your facts? Abraham Lincoln was elected to the Office of the Presidency and the Congress that served during his term and the state legislatures that presided while he was President were all democratically elected to their posts. And thus, the 14th Amendment was born.

Abraham Lincoln and those who supported the 14th Amendment were far in minority compared to the plantation owners who lived in the rebellious states.

Slave holding de facto continued shortly after his assassination as well, and the Ku Klux Klan certainly enjoyed widespread support from former plantation owners to the more populous common citizen.

legally I feel there is no good argument against it.

Loving vs. Virginia?
The Equal Protection Clause of the Fourteen Amendment?
The Due Process Clause?

But 'basic human rights' is a very loose term. Also, these 'basic human rights' that are ensured are granted by state, and federal constitutions... California voted to change the constitution. Legally, gay marriage is not a protected basic human right in California.

Like I said, morally, I'm against it, if I lived there, I'd be calling my local representative to try and bring the vote around again, and when the vote comes to MN (which I've heard might be happening soon) I'll be there at the polls.
Wrong.

A) It WAS a legally protected right in California until some people decided to strip the gay segment of the population of that right. Now we are fighting about that.

B) Marriage is a clearly defined right, according to the US Supreme Court, which held marriage to be a fundamental human right in, I think, Loving v. Virginia which, if memory serves, was the decision disallowing anti-miscegenation laws (welcome corrections on that reference).

Indeed I did, and I stand by my statement.

Notice that we once had slavery? That went away, and such discrimination seems unlikely to occur again.
It did not go away by the will of the majority of the voters in slave states, though. It was broken by force of arms in a civil war. In other words, a big fuck-you to "states' rights."

I point to anti-miscegenation laws to demonstrate how the minority needs to be protected by the majority:

The constitutionality of anti-miscegenation laws only began to be widely called into question after the Second World War. In 1948, the California Supreme Court in Perez v. Sharp ruled that the Californian anti-miscegenation statute violated the Fourteenth Amendment to the United States Constitution and was therefore unconstitutional. This was the first time since Reconstruction that a state court had declared an anti-miscegenation law unconstitutional. California was the first state since Ohio in 1887 to repeal its anti-miscegenation law.

As a result, during the 1950s anti-miscegenation laws were repealed or overturned in state after state, except in the South. Nonetheless, in the 1950s, the repeal of anti-miscegenation laws was still a controversial issue in the U.S., even among supporters of racial integration.

In 1958, the political theorist Hannah Arendt, an emigre from Nazi Germany, wrote in an essay in response to the Little Rock Crisis, the Civil Rights struggle for the racial integration of public schools which took place in Little Rock, Arkansas in 1957, that anti-miscegenation laws were an even deeper injustice than the racial segregation of public schools. The free choice of a spouse, she argued in Reflections on Little Rock, was "an elementary human right": "Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to 'life, liberty and the pursuit of happiness' proclaimed in the Declaration of Independence; and to this category the right to home and marriage unquestionably belongs." Arendt was severely criticized by fellow liberals, who feared that her essay would arouse the racist fears common among whites and thus hinder the struggle of African-Americans for Civil Rights and racial integration. Commenting on the Supreme Court's ruling in Brown v. Board of Education of Topeka against de jure racial segregation in education, Arendt argued that anti-miscegenation laws were more basic to racial segregation than racial segregation in education.

Arendt's analysis of the centrality of laws against interracial marriage to white supremacy echoed the conclusions of Gunnar Myrdal. In his essay Social Trends in America and Strategic Approaches to the Negro Problem (1948), Myrdal ranked the social areas where restrictions were imposed by Southern whites on the freedom of African-Americans through racial segregation from the least to the most important: jobs, courts and police, politics, basic public facilities, "social equality" including dancing and handshaking, and most importantly, marriage. This ranking was indeed reflective of the way in which the barriers against desegregation fell under the pressure of the protests of the emerging Civil Rights movement. First legal segregation in the army, in education and in basic public services fell, then restrictions on the voting rights of African-Americans were lifted. These victories were ensured by the Civil Rights Act of 1964. But the bans on interracial marriage were the last to go, in 1967.

Most white Americans in the 1950s were opposed to interracial marriage and did not see laws banning interracial marriage as an affront to the principles of American democracy. A 1958 Gallup poll showed that 96 percent of white Americans dissapproved of interracial marriage. However, attitudes towards bans on interracial marriage quickly changed in the 1960s.

By the 1960s, civil rights organisations were helping interracial couples who were being penalized for their relationships to take their cases to the Supreme Court. Since Pace v. Alabama, the court had declined to make a judgment in such cases. But in 1964, the Warren Court decided to issue a ruling in the case of an interracial couple from Florida who had been convicted because they had cohabited. In McLaughlin v. Florida, the Supreme Court ruled that the Florida state law which prohibited cohabitation between whites and non-whites was unconstitutional and based solely on a policy of racial discrimination. However, the court did not rule on the Florida's ban on marriage between whites and non-whites, despite the appeal of the plaintiffs to do so and the argument made by the state of Florida that its ban on cohabitation between whites and blacks was ancillary to its ban on marriage between whites and blacks. However, in 1967 the court did decide to rule on the remaining anti-miscegenation laws when it was presented with the case of Loving v. Virginia.

Imagine if the majority ruled back then. Do you think we'd allow interracial marriage by now? I'm not so sure.

I know the US is a constitutional democracy, but what that exactly means in specific situations is not always set in stone.

Is marriage a "human right"?
Yes, according to SCOTUS in Loving v. Virginia

Quick overview: http://en.wikipedia.org/wiki/Loving_v._Virginia

Including:

The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In its decision, the court wrote:
“ Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."
emphasis added.

Marianne is one of them, see Loving V. Virginia.

I am not talking about US legal precedence anymore. I am talking about natural rights that in my opinion are the only ones deserving of exemption from democratic rule.

Abraham Lincoln and those who supported the 14th Amendment were far in minority compared to the plantation owners who lived in the rebellious states.
You really think there were that many plantation owners?

Yes, according to SCOTUS in Loving v. Virginia
The Supreme Court does not determine human rights, merely the laws of the US.

I am not talking about US legal precedence anymore. I am talking about natural rights that in my opinion are the only ones deserving of exemption from democratic rule.


You really think there were that many plantation owners?


The Supreme Court does not determine human rights, merely the laws of the US.
I see. So...in discussing an issue of law, and realizing that there is no way you can carry a legal argument because you are wrong on the facts, you are now going to try to spin some intellectual bullshit in which you get to define "rights" in such a way as to make yourself be correct?

The Supreme Court does not determine human rights, merely the laws of the US.

The Supreme Court interprets the Constitution which enumerates rights the government does not have the authority to restrict. So the Supreme Court DOES have the authority to limit government.

I am not talking about US legal precedence anymore. I am talking about natural rights that in my opinion are the only ones deserving of exemption from democratic rule.

The majority support some function of government that goes outside of self-defence and the right to property, the two "natural rights" that you've identified. Therefore, by your own logic, your opinion doesn't matter because the majority support a government that doesn't adhere to your ideals.

Therefore, by your own logic, your opinion doesn't matter because the majority support a government that doesn't adhere to your ideals.

Haha, I don't doubt our opinions don't matter to many but ourselves. But here we all are, giving them none the less.

Those aren't the only two natural rights that I believe exist. They are just two of them. I used them as examples. Suffice it to say that I don't think marriage is an important enough issue to qualify.

The Supreme Court interprets the Constitution which enumerates rights the government does not have the authority to restrict. So the Supreme Court DOES have the authority to limit government.

Who am I to argue with Hamilton. However, he himself viewed the Supreme Court as the weakest branch of the federal government, and it was the Supreme Court itself with gave itself the power to review law for Constitutionality. I'm not saying that it was wrong, per se, just that it isn't a power descended from God Himself. I don't argue with the idea that the founders wished to place certain checks on tyranny of the majority, but I would also like to point out that the evolution of checking majority rule leads to rule of the minority instead. At a certain point, we have to listen to the majority opinion.

Who am I to argue with Hamilton. However, he himself viewed the Supreme Court as the weakest branch of the federal government, and it was the Supreme Court itself with gave itself the power to review law for Constitutionality. I'm not saying that it was wrong, per se, just that it isn't a power descended from God Himself. I don't argue with the idea that the founders wished to place certain checks on tyranny of the majority, but I would also like to point out that the evolution of checking majority rule leads to rule of the minority instead. At a certain point, we have to listen to the majority opinion.

True enough, but the majority opinion doesn't change the rights of the minority for a very good reason. It's a reason that has been very slow to develop to the level it's at now and is still a work in progress. There is a very valid reason why altering the US Constitution is such a difficult process. It takes more than a majority to do; it takes almost a consensus. Even that is not a perfect system(look at the 18th amendment). Do you think that a simple majority of voters(52%) making up 19% of the total population and without the approval of the representatives in power ought to have the power to strip a basic right away from an entire group of people?

True enough, but the majority opinion doesn't change the rights of the minority for a very good reason. It's a reason that has been very slow to develop to the level it's at now and is still a work in progress. There is a very valid reason why altering the US Constitution is such a difficult process. It takes more than a majority to do; it takes almost a consensus. Even that is not a perfect system(look at the 18th amendment). Do you think that a simple majority of voters(52%) making up 19% of the total population and without the approval of the representatives in power ought to have the power to strip a basic right away from an entire group of people?

I think our views on this issue depend on how we view marriage. I don't view it as a religious institution, as many who argue against gay marriage; rather, I view it as unimportant. And as such, it can readily be subject to the majority opinion on the issue.

I think our views on this issue depend on how we view marriage. I don't view it as a religious institution, as many who argue against gay marriage; rather, I view it as unimportant. And as such, it can readily be subject to the majority opinion on the issue.

Marriage includes a sizeable amount of legal perks and privileges packaged into it that people have come to take for granted and are probably the basis for the opinion that it's a fundamental right. Perks like child guardianship, medical decision making, insurance coverage and inheritances. Unless we consider stripping these perks completely from marriage, I would have to agree that marriage is pretty much a basic right.

The court being involved in an equal protection of peoples rights isn't exactly new. Nor is going against the will of the masses to do so (see Brown V. the Board of Education).

I already tried that. Apparently bringing up relevant facts from history is cliched and means your argument actually fails.

Who am I to argue with Hamilton. However, he himself viewed the Supreme Court as the weakest branch of the federal government, and it was the Supreme Court itself with gave itself the power to review law for Constitutionality. I'm not saying that it was wrong, per se, just that it isn't a power descended from God Himself.

Aaaaand there we go!

Aaaaand there we go!

Color me confused.

Marriage includes a sizeable amount of legal perks and privileges packaged into it that people have come to take for granted and are probably the basis for the opinion that it's a fundamental right. Perks like child guardianship, medical decision making, insurance coverage and inheritances.

I have been thinking about how to best address this for a while since entering this thread, because I realize that it is an issue. The best I can come up with at this point is that the Courts would best be suited, in my opinion, for taking away legal rights rather than bestowing them.

Aaaaand there we go!

As near as I can tell, the only power that God ever bestowed on another is the ability to call Him whenever they need something done. In fact, when some dude by the name of Moses actually had the balls to take credit for all the favors he asked God for, God fucked his shit up. Now what I wonder is this: Since these people who apparently can ask God to do shit are performing God's will, and being God's will, He was going to do it anyway, basically, God gave people precisely dick. Why? Because He's fucking God and He is letting us provide some comfort to our own lives by not busting the ridiculous illusion that we're telling Him something He doesn't already know.

If there's a God, and if He's watching, it's to see what We are going to do, and not to do it Himself. He doesn't have to. He's fucking God.

Prop 8- do I agree with it? NO!

However, do I think gays should be allowed to have a wedding in a church or synagogue or mosque? Not in my church! (actually my denomination is still trying to make up its mind, but I would not permit it) Other places of worship, I do not care...it is not my church that is performing the ceremony. They will be welcomed, but they cannot serve as any of the following: Pastor, Youth Minister, or Sunday School Teacher. With only those restrictions, they can be involved in any capacity they see fit- even church council, provided they meet the requirements like everyone else.

Marriage includes a sizeable amount of legal perks and privileges packaged into it that people have come to take for granted and are probably the basis for the opinion that it's a fundamental right. Perks like child guardianship, medical decision making, insurance coverage and inheritances. Unless we consider stripping these perks completely from marriage, I would have to agree that marriage is pretty much a basic right.

sorry for double post
Or perhaps we could give civil unions the same rights as marriages and strike out the word marriage and put civil union in official documents. Churches recognize such unions as marriages only if they desire to do so. It would only require a little editing, imo. Thus both sides would be happy.

sorry for double post
Or perhaps we could give civil unions the same rights as marriages and strike out the word marriage and put civil union in official documents. Churches recognize such unions as marriages only if they desire to do so. It would only require a little editing, imo. Thus both sides would be happy.

Well, that would require taking christianity out of the government and if we do that, God will make it rain flaming shit on all of our heads. That's what Christian Coalition told me. ;)

I think our views on this issue depend on how we view marriage. I don't view it as a religious institution, as many who argue against gay marriage; rather, I view it as unimportant.

If it's so unimportant, then why do you care? Why do you feel it's important to limit another persons rights?

If it's so unimportant, then why do you care? Why do you feel it's important to limit another persons rights?

I care because some would like the Court to overstep its bounds and overturn what was democratically-decided. Believe me, I would just as soon not have such issues to worry about.

You're right, though, that I "feel it's important to limit another persons rights". :rolleyes: How do you expect me to take you seriously when you say things like that?

I care because some would like the Court to overstep its bounds and overturn what was democratically-decided. Believe me, I would just as soon not have such issues to worry about.

You're right, though, that I "feel it's important to limit another persons rights". :rolleyes: How do you expect me to take you seriously when you say things like that?

it was fine to over turn the law.
Over turning an amendment to the Constitution seems to be a different story.

The Supreme Court of California is currently leaning toward upholding Proposition 8, the California ballot initiative which changed the state's constitution to ban same sex marriages.
Responding to Prop 8 opponents a couple of the justices said it was more important to protect the soveriegnty of the people of California to make their own laws and constitutions without outside interference.






"Another member of last year's majority, Justice Joyce Kennard, said the challenge to the Prop. 8's legality brought by advocates of same-sex marriage involved "a completely different issue" from the court's ruling that the marriage laws violated gays' and lesbians' rights to be treated equally and wed the partner of their choice.

"Here we are dealing with the power of the people, the inalienable right, to amend the Constitution," Kennard said. Speaking to a lawyer representing same-sex couples, she said that if advocates of same-sex marriage want to overturn the voters' decision, "you have the right to go to the people and present an initiative."

There were some indications of divisions among the justices on the validity of Prop. 8 during the hearing, which lasted more than three hours at the court's San Francisco headquarters. But on a separate issue, all seven appeared to agree that the 18,000 same-sex couples who married in California before Prop. 8 passed would remain legally wed.

"When the highest court of the state declares that same-sex couples have the right to marry ... how can one deny the validity of those marriages?" asked Justice Marvin Baxter, who dissented from the May ruling throwing out the opposite-sex-only marriage law.

Relying on that ruling, thousands of gays and lesbians "upended their lives, changed their property responsibilities with their spouses," said Justice Ming Chin, another dissenter from that decision. "Is it really fair to throw that out?"

If the justices' questions were any indication, the court will allow Prop. 8 to ban same-sex marriages as of Nov. 5, the day after it passed with 52 percent of the vote. A ruling is due within 90 days.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/05/BALP169S2G.DTL&type=news

So if you are gay and you married before Prop 8 you are still married, but if you are gay and you are not married, you will not be allowed to marry in the state of California as of Nov 4, 2008.

The Supreme Court appears to be saying that California's soverignty is much more important. It does not help that you have gays from other countries and other states invading California trying to impose a different system of government from the outside. It violates the inalienable rights of the people of California to pick their own laws and write and rewrite their own constitution.

An official ruling will be made in 90 days. But this is how it looking.
Those gay people should not have brought in all those outsiders to dictate to Californians how to run their own state. They might have gotten a more sympathetic ear otherwise.

All of NSG should be so glad he has me on the iggy list for some reason.

quick question. can the court rule marriage is between a man and woman due to the amendment but find civil unions have to be offered? or did prop 8 block that ?

Prop 8- do I agree with it? NO!

However, do I think gays should be allowed to have a wedding in a church or synagogue or mosque? Not in my church! (actually my denomination is still trying to make up its mind, but I would not permit it) Other places of worship, I do not care...it is not my church that is performing the ceremony. They will be welcomed, but they cannot serve as any of the following: Pastor, Youth Minister, or Sunday School Teacher. With only those restrictions, they can be involved in any capacity they see fit- even church council, provided they meet the requirements like everyone else.
Good news for you then: The First Amendment of the US Constitution prohibits the government from forcing any church to conform its religious practices to the orders of the secular government. So there is no way that making gay marriage legal in any state or at the federal level would result in churches being forced to perform gay marriages or do anything else with gays that they don't believe in.

Straw-bogeyman killed. Now we can move on with the issue.

I care because some would like the Court to overstep its bounds and overturn what was democratically-decided. Believe me, I would just as soon not have such issues to worry about.

You're right, though, that I "feel it's important to limit another persons rights". :rolleyes: How do you expect me to take you seriously when you say things like that?
Are you or are you not arguing that Prop 8 should stand because it was voted on?

Does Prop 8 or does Prop 8 not strip gays of the legal right to marry, which they previously had under California law?

Does that or does that not amount to limiting the rights of a segment of the population?

Therefore, if you believe that Prop 8 should stand on the grounds that the "will of the people" is important, and with Prop 8 the "will of the people" was to limit the rights of a minority of the citizenry, are you or are you not arguing in favor of limiting some people's rights?

So--keep the courts out of marriage rights, but keep the church in our bedrooms?

If you are really a member of the church, ie a christian, then why would you ojbect to the church hanging out in your bedroom unless you are actually of a different faith?

If you are really a member of the church, ie a christian, then why would you ojbect to the church hanging out in your bedroom unless you are actually of a different faith?
You are aware, aren't you, that Prop 8 puts SOME churches into EVERYONE'S bedroom, regardless of whether they are members of those churches or not, right? You do realize that, right?

Unfortunately for you, simple democracy is not the law of our republic. It's a constitutional democracy.
Actually California is a simple democracy. But in political science circles we call it "Direct Democracy" in which most of the major laws are made by initiative statute. California is one of only a couple of states where you don't need the permission of the legislature to amend the constitution by initiative statute.

Canada, Netherlands, Spain, Norway and Belgium - to name a few - have not fallen into a state of total anarchy, nor have any of these nations become squalid sinful hellholes due to the choice of legislative bodies to allow for gay marriage.

http://en.wikipedia.org/wiki/Status_of_same-sex_marriage (I know, it's Wiki, but it's a good consolidated source)

In Canada, a religious institution is not required to perform the marriage ceremony if it doesn't wish to. The choice was left up to each individual religious institution. The government, however, must grant the license to anyone who is age of majority, of sound mind and is one of two consenting parties where there is no question of affinity/consanguinity.

Society didn't fall to pieces when homosexuals were granted the right to marry. The sky didn't implode into a barrage of fire and brimstone. The earth beneath the feet of all Canadians remained in tact; it didn't become a great void into which we would be sucked. People went about their business and life didn't end as we know it. The only thing that changed was the definition of who is allowed to marry. Nothing more.

I admit I will never understand the problem with allowing homosexuals to marry. The only thing that makes them different when it comes to who they pick as their life partner is their sexual orientation.

In the post-grad I'm in, there is a woman whose life partner is a woman. The only thing that makes her marriage different than mine is the gender of her partner. They have the same problems, same joys. Everything else is the same. The only thing that is different is what is between the legs.

What makes a gay person less deserving of the right to marry a person of their choice than anyone who may be straight or bisexual?

Canada, Netherlands, Spain, Norway and Belgium - to name a few - have not fallen into a state of total anarchy, nor have any of these nations become squalid sinful hellholes due to the choice of legislative bodies to allow for gay marriage.


To be fair all those nations were squalid sinful hellholes, to some fundies, even before they allowed the gays to marry.

To be fair all those nations were squalid sinful hellholes, to some fundies, even before they allowed the gays to marry.

Because we're EBIL LIBURALS?! ;)

Good news for you then: The First Amendment of the US Constitution prohibits the government from forcing any church to conform its religious practices to the orders of the secular government. So there is no way that making gay marriage legal in any state or at the federal level would result in churches being forced to perform gay marriages or do anything else with gays that they don't believe in.

Straw-bogeyman killed. Now we can move on with the issue.

I know that. I am just worried that my denomination might not see things that way as they are still formulating an opinion on this issue and are known to be rather liberal, not that I mind them being liberal in some respects.

Wrong.

A) It WAS a legally protected right in California until some people decided to strip the gay segment of the population of that right. Now we are fighting about that.

B) Marriage is a clearly defined right, according to the US Supreme Court, which held marriage to be a fundamental human right in, I think, Loving v. Virginia which, if memory serves, was the decision disallowing anti-miscegenation laws (welcome corrections on that reference).

Unfortunately SCOTUS has refused to hear appeals of lower court decisions in states that banned gay marriage.

I know that. I am just worried that my denomination might not see things that way as they are still formulating an opinion on this issue and are known to be rather liberal, not that I mind them being liberal in some respects.

Frankly, if your demonination doesn't see it that way, then they are morons. It is explicitly in the Constitution that the government could never do that. If your demonination believes that they might be forced to perform gay marriages EVER, then they are either:

A. Idiots
B. Morons
C. Fools
D. All of the above
E. Intentionally fearmongering

I'm willing to bet it's E., but as I don't know your demonination that well, you might be better equipped to answer the question.

If you are really a member of the church, ie a christian, then why would you ojbect to the church hanging out in your bedroom unless you are actually of a different faith?

wait.....what?

Marriage includes a sizeable amount of legal perks and privileges packaged into it that people have come to take for granted and are probably the basis for the opinion that it's a fundamental right. Perks like child guardianship, medical decision making, insurance coverage and inheritances. Unless we consider stripping these perks completely from marriage, I would have to agree that marriage is pretty much a basic right.

The problem with that is that, as the Justices themselves said when they were grilling the attorneys who spoke against Prop 8, is that every single right that gays claim they will get by having the marriage label, are rights that they already have. this is why the court is leaning toward upholding Prop 8. It only defines a label, it does nothing to take away rights.
Gay people can still marry and have all the stuff that comes with marriage but they don't have the right to call it a marriage. That is what they will decide.

I know that. I am just worried that my denomination might not see things that way as they are still formulating an opinion on this issue and are known to be rather liberal, not that I mind them being liberal in some respects.
Then it might be appropriate for you to lend your voice to the internal debate and educate them about it.

Unfortunately SCOTUS has refused to hear appeals of lower court decisions in states that banned gay marriage.
That is because marriage legislation belongs to the states, but that still does not allow the states to violate the US Constitution. So while there may not be grounds for the SCOTUS to review state laws on this matter, when a case comes up that has the ability to make a proper Constitutional argument to challenge any given state's laws as violating Equal Protection, then it will have a better chance. Even then, however, the SCOTUS will not be able to tell the state what to do, only what it cannot do.

Also, this is a relatively new issue. It is more appropriate to exhaust all avenues at the state level before taking it to the fed level.

If it's so unimportant, then why do you care? Why do you feel it's important to limit another persons rights?

According to the questioning by the State Supreme Court, their view is that no one's rights are being limited.

Gay people can still marry and have all the stuff that comes with marriage

No, they can't.

The problem with that is that, as the Justices themselves said when they were grilling the attorneys who spoke against Prop 8, is that every single right that gays claim they will get by having the marriage label, are rights that they already have. this is why the court is leaning toward upholding Prop 8. It only defines a label, it does nothing to take away rights.
Gay people can still marry and have all the stuff that comes with marriage but they don't have the right to call it a marriage. That is what they will decide.
That is false, plain and simple.

It has been well established that there are hundreds of legal authorities and privileges that are attached only to marriage. It has also been well established that separate but equal is not equal.

All of NSG should be so glad he has me on the iggy list for some reason.

They appeared to be leaning toward civil unions being not only a constitutional right but that they must in every way contain the same rights and previleges as relationships known as marriages.

Same rights. Same priveliges. Different labels.

Blacks and whites have the same exact rights but a black is not a white and a white is not a black.

According to the questioning by the State Supreme Court, their view is that no one's rights are being limited.
Psychic powers, eh? You can read their minds and that's how you know how they will decide?

I notice that you have chosen to ignore the several objections that your thread title, and your entire presentation of the argument is misleading.

I also notice that you have chosen to ignore my question regarding whether you are aware that Prop 8 pushes some churches into everyone's bedroom, regardless of whether they follow those beliefs or not.

Hm.

They appeared to be leaning toward civil unions being not only a constitutional right but that they must in every way contain the same rights and previleges as relationships known as marriages.

Same rights. Same priveliges. Different labels.

Blacks and whites have the same exact rights but a black is not a white and a white is not a black.
You have absolutely no idea how racist that remark is, do you?

But I assure you, it explains a lot about your position in re gay marriage -- that your views are based on a fundamental bigotry against gays.

Also, the fact remains that separate but equal has already been disallowed under US law. It is not okay to have separate schools, jobs, water fountains, etc, for black people and white people -- even if they are supposedly the same in all respects except the race of the users. Likewise, it will not be okay to have separate legal householding institutions for hetero people and gay people. This fight is just beginning, but the end is inevitable. Sooner or later, there will be one institution, it will have one title, and it will be equally available to both gays and heteros.

You are aware, aren't you, that Prop 8 puts SOME churches into EVERYONE'S bedroom, regardless of whether they are members of those churches or not, right? You do realize that, right?

In the case of Prop 8, with its relationship with the Mormon Church, I am fully aware of it. Unfortunately that is not the argument being used to overturn it.

The argument before the court is that the people of California do not have popular soveriegnty. That is why they will uphold Prop 8.
If they had framed it in regards to the massive connection which the measure had to the Mormon Church, I think the court would have been more sympathetic to the Opposing side.

No, they can't.

name one thing that the Justices said they could not have, besides the marriage label.

Blacks and whites have the same exact rights but a black is not a white and a white is not a black.

And yet we don't call marriage between two black people "niggah lovin'", and we don't call the freedom of speech a black man enjoys "freedom of black speech" now do we?

No, I'm fairly certain that despite white being white and black being black, a marriage between a black couple is still a marriage. And freedom of speech is freedom of speech, and we don't create seperate institutions for people based on their skin color.

Last time we tried, it turned out not so well.

name one thing that the Justices said they could not have, besides the marriage label.

it's not what they "can or can't" it's what they do, or do not.

Don't shift your goalposts.

You have absolutely no idea how racist that remark is, do you?

But I assure you, it explains a lot about your position in re gay marriage -- that your views are based on a fundamental bigotry against gays.

Also, the fact remains that separate but equal has already been disallowed under US law. It is not okay to have separate schools, jobs, water fountains, etc, for black people and white people -- even if they are supposedly the same in all respects except the race of the users. Likewise, it will not be okay to have separate legal householding institutions for hetero people and gay people. This fight is just beginning, but the end is inevitable. Sooner or later, there will be one institution, it will have one title, and it will be equally available to both gays and heteros.

Don't you think it's a reach to pull out the race card?

In the case of Prop 8, with its relationship with the Mormon Church, I am fully aware of it. Unfortunately that is not the argument being used to overturn it.

The argument before the court is that the people of California do not have popular soveriegnty. That is why they will uphold Prop 8.
If they had framed it in regards to the massive connection which the measure had to the Mormon Church, I think the court would have been more sympathetic to the Opposing side.
False again. The question is not whether the people of CA have popular sovereignty. Here's why:

1) There is no such thing as "popular sovereignty." That is a made-up phrase.

2) The actual question is whether the people of CA violated THEIR OWN RULE by passing off a revision of the fundamental structure and purpose of the CA constitution, which cannot be made by popular vote, as a mere amendment without revision, which can be done by popular vote.

Also, you are wrong again on emphasizing the Mormon connection. The Mormon connection was a big deal because it was such a massive and obvious example of a church violating the separation of church and state in order to pursue a religion-based political agenda. But in fact, the imposition of religious belief on all citizens is inherent in Prop 8 and is NOT exclusive to the Mormons involved in it. The only argument against gay marriage is a religious one, the only objections to gay marriage raised in support of Prop 8 were religious ones, and the primary source for all those arguments/objections are churches of several Christian denominations. Not just Mormon, but also not representing all CA citizens.

Don't you think it's a reach to pull out the race card?
You're the one who raised it. Now you call foul when it turns out you can't win your point?

And yet we don't call marriage between two black people "niggah lovin'", and we don't call the freedom of speech a black man enjoys "freedom of black speech" now do we?

No, I'm fairly certain that despite white being white and black being black, a marriage between a black couple is still a marriage. And freedom of speech is freedom of speech, and we don't create seperate institutions for people based on their skin color.

Last time we tried, it turned out not so well.

are you saying that gays are a race?

Don't you think it's a reach to pull out the race card?

Yes, using race is stupid, bigotted, and borderline racist. Unfortunately for you:


Blacks and whites have the same exact rights but a black is not a white and a white is not a black.

you're the one who pulled that particular card.

are you saying that gays are a race?

I am saying that lines like "race" or "sexuality" or "gender" or "religion" or "not aryan" or any other line used to divide "us" and "them" to justify treating "them" differently from the way we like "us" to be treated is bigotted.

Also, if you find the analogy improper, I suggest in the future not using it as your argument.

This is the kind of shit they teach in highschool. What are you, fucking 12?

are you saying that gays are a race?
Are you saying that race is now a legitimate issue on which to discuss rights?

Or are you just trying to shift the playing pieces around in a desperate attempt to get off the thin ice you put yourself on?

Here's how gays and blacks and whites are all alike:

They are all human beings and citizens of the United States. That means they are all endowed with the same inalienable rights, and they are all afforded equal protection under the law in the US.

http://www.latimes.com/news/printedition/front/la-me-prop8-supreme-court6-2009mar06,0,2781358.story


State justices appear unwilling to overturn the gay-marriage ban but suggest that pre-vote weddings are valid.

The California Supreme Court strongly indicated Thursday it would rule that Proposition 8 validly abolished the right for gays to marry but would allow same-sex couples who wed before the November election to remain legally married.

Gay marriage advocates all but conceded defeat.

Gay rights lawyers had argued that Proposition 8 removed a fundamental right from a protected minority that has suffered discrimination.

As such, it revised the Constitution, instead of merely amending it, they said. Revisions can be placed on the ballot only by a two-thirds vote of the Legislature or a constitutional convention.

Justice Kennard, traditionally a strong supporter of gay rights, repeatedly noted that Proposition 8 was a mere 14 words and simply took away the "label" of marriage.

She reminded lawyers that the "core" part of last year's marriage ruling required the state to give sexual orientation the same constitutional protection as race and gender.

Proposition 8 "hasn't destroyed equal protection," Kennard said.

"I think what you are overlooking is the very broad powers of the people to amend the Constitution," she said.

She described the Proposition 8 case as "completely different" from last year's marriage cases and stressed that previous high court decisions "don't support" the challenges.

"What I am picking up from this case is that the court should willy-nilly disregard the will of the people," Kennard said.

Cheif Justice George also indicated that the elevated constitutional status of sexual orientation was more important than the "mere designation" of marriage.


He noted that the state's Constitution has been amended more than 500 times and asked whether the real problem was that "it's just too easy to amend the California Constitution."

"Maybe the solution has to be a political one," George said, and until the amendment process is changed, "isn't this the system we have to live with?"


"It is not unique in the history of California that the initiative process has been used to restrict the right of one minority or another," said the chief justice, who wrote the May 15 landmark marriage ruling.

Exceptions have long been carved from equal protection guarantees, he said.

Justice Carol A. Corrigan also observed that people have the right to amend their constitutions: "Isn't the essence of democracy grounded in the right of people to govern themselves?"


The lawyer who fared the worst at Thursday's hearing was state Senior Assistant Atty. Gen. Christopher Krueger, who argued that Proposition 8 should be overturned because it repealed an "inalienable right" without compelling justification.

Atty. Gen. Jerry Brown came up with that novel legal theory after initially saying he would defend Proposition 8.

The justices pressed Krueger to define an "inalienable right."

"How do we know what is an inalienable right?" Moreno asked. "Do we just know it when we see it?"

George noted that voters can amend the Constitution.

"Is that an inalienable right?" he asked.

Kennard told Krueger that his argument relied on 19th century case law that was later overturned.

"It appeared there was a broad understanding on the court that ultimately the inalienable right of the people to amend our Constitution will determine the outcome of the case," Pugno said.

Yes, using race is stupid, bigotted, and borderline racist. Unfortunately for you:



you're the one who pulled that particular card.

You do know I was referring to the labels don't you?

If I am born white there is no way I can be black. If I am born black, there is no way I can be white. Yet, regardless of which I am, I retain the exact same rights. I have the exact same potentials and the exact same rights. The label does not matter as much as the substance.

If I am born white there is no way I can be black. If I am born black, there is no way I can be white. Yet, regardless of which I am, I retain the exact same rights. I have the exact same potentials and the exact same rights. The label does not matter as much as the substance.

you realize, I hope, that this does not help your argument. More to point, we do not allow the "label" of the person to affect the "label" of the rights.

We don't call the marriage of a black couple anything other than marriage. Or a jewish couple. Or an elderly couple. Or a mixed race couple. Or an asian couple. Or a couple who are left handed.

We don't do that for ANY OTHER TYPE OF COUPLE, regardless of the "labels" of that couple. Why should we do it with a same sex couple?

The problem with that is that, as the Justices themselves said when they were grilling the attorneys who spoke against Prop 8, is that every single right that gays claim they will get by having the marriage label, are rights that they already have. this is why the court is leaning toward upholding Prop 8. It only defines a label, it does nothing to take away rights.
Gay people can still marry and have all the stuff that comes with marriage but they don't have the right to call it a marriage. That is what they will decide.

Separate but equal worked oh so well for black education. :p

Are you saying that race is now a legitimate issue on which to discuss rights?

Or are you just trying to shift the playing pieces around in a desperate attempt to get off the thin ice you put yourself on?

Here's how gays and blacks and whites are all alike:

They are all human beings and citizens of the United States. That means they are all endowed with the same inalienable rights, and they are all afforded equal protection under the law in the US.

Then perhaps you can answer the Supreme Court's question: what constitutes an inalienable right? Our founding fathers said such rights came from God. I would not suppose that you believe in that same God now do you? Were you not just saying that our laws should not be based off our religion? If not from God then from where?

So just what are these inalienable rights you speak and where do they come from if not from the will of the majority?

http://www.latimes.com/news/printedition/front/la-me-prop8-supreme-court6-2009mar06,0,2781358.story
More tea-leaf reading.

Look, I have been of the opinion since Prop 8 was voted in that this particular appeal to the courts would not work, but it is a necessary step in the process. The real battle for gay rights will be in two years, when the repeal of Prop 8 can be put on the ballot. That gives two years for minds to be changed.

But none of that changes the fact that you are talking a load of crap because you are claiming that something has happened or is happening that has not happened yet. All you have to do to appear honest is BE honest and acknowledge that you are cheerleading for what you would like to see happen, NOT stating a foregone conclusion.

You do know I was referring to the labels don't you?

If I am born white there is no way I can be black. If I am born black, there is no way I can be white. Yet, regardless of which I am, I retain the exact same rights. I have the exact same potentials and the exact same rights. The label does not matter as much as the substance.
And you continue to ignore the obvious point that has been made over and over again: Regardless of whether you are white or black, you don't have "White Marriage" for whites and "Black Marriage" for blacks. It's all just "Marriage." There is no legitimate argument for labeling the institution seperately for no other reason than to identify the people using it by their race. Likewise, there is no legitimate argument for having "Marriage" for heteros and "Civil Unions" for gays, two separate labels that exist for no reason other than to identify and separate the two groups. Marriage is marriage.

you realize, I hope, that this does not help your argument. More to point, we do not allow the "label" of the person to affect the "label" of the rights.

We don't call the marriage of a black couple anything other than marriage. Or a jewish couple. Or an elderly couple. Or a mixed race couple. Or an asian couple. Or a couple who are left handed.

We don't do that for ANY OTHER TYPE OF COUPLE, regardless of the "labels" of that couple. Why should we do it with a same sex couple?

Except that marriage does not seem to as inalianable as we thought otherwise you could not discriminate marriage in respect to age or number of partners. Yet, we find it is not inalianable. You cannot marry a 12 year for example. Nor can you have more than one wife. If marriage was inalianable as opponents of Prop 8 would have us believe, then government would have no power to limit it. Yet government does indeed have the power to limit who can get married. And in California, the power to decide who can marry rests with the popular majority because of the system of government known as Direct Democracy.

are you saying that gays are a race?

Does it matter?

We also allow a jew and a catholic to marry(much to the chagrin of the parents probably, but that's irrelevant). That certainly isn't a race and it's as much a personal choice as anything can be. We also allow blondes and brunettes to marry, chinese and latinos to marry, two atheists to marry, etc.

We don't discriminate against marriage for any other genetic or non-genetic reason. Anybody capable of entering a valid legal contract of their own free will can marry. Except gays. That would be called discrimination.

Likewise, there is no legitimate argument for having "Marriage" for heteros and "Civil Unions" for gays, two separate labels that exist for no reason other than to identify and separate the two groups. Marriage is marriage.

well, for devil's advocate, I don't agree there is NO legitimate argument. There is one, and it's not a great argument, but it's there.

THere is....some legitimacy to the argument of "the word marriage, in our cultural history, means one man one woman". The argument is, it's not about rights, it's not about seperation, it's just about the meaning of the word. It's a semantics argument yes, but semantics can be important. Theoretically the same objection would be levied to a law that proportes to call all automobiles "glorts". They're not glorts, they're automobiles. Marriage has a meaning, it has a definition, this is changing that definition.

I also think that the VAST majority of people who make that argument care little for semantics, and more for a convenient way to put gays "in the back of the bus" so to speak. You can always tell though who makes that argument for actual semantic reasons, and who does it through veiled bigotry. Simply propose we just stop calling ANY of it marriage, make a new term that encompases everyone.

If they're fine with that, then I'm willing to concede a validity (not much) of a purely semantics argument.

More tea-leaf reading.

Look, I have been of the opinion since Prop 8 was voted in that this particular appeal to the courts would not work, but it is a necessary step in the process. The real battle for gay rights will be in two years, when the repeal of Prop 8 can be put on the ballot. That gives two years for minds to be changed.

But none of that changes the fact that you are talking a load of crap because you are claiming that something has happened or is happening that has not happened yet. All you have to do to appear honest is BE honest and acknowledge that you are cheerleading for what you would like to see happen, NOT stating a foregone conclusion.


And you continue to ignore the obvious point that has been made over and over again: Regardless of whether you are white or black, you don't have "White Marriage" for whites and "Black Marriage" for blacks. It's all just "Marriage." There is no legitimate argument for labeling the institution seperately for no other reason than to identify the people using it by their race. Likewise, there is no legitimate argument for having "Marriage" for heteros and "Civil Unions" for gays, two separate labels that exist for no reason other than to identify and separate the two groups. Marriage is marriage.

Marriage is a relationship between a man and woman.

snip

Can I take your silence as agreement with my post?

Marriage is a relationship between a man and woman.

Marriage evolves. Originally, it was a relationship between a man and a bunch of women which were purchased from the women's parents usually regardless of the wishes of the women. There was an interesting story recently about a boy in India that was married to a dog as a ward against tiger attack. This is why I like to mock people who try to apply a 'traditional' definition of marriage. Shall I mock you?

Then perhaps you can answer the Supreme Court's question: what constitutes an inalienable right? Our founding fathers said such rights came from God. I would not suppose that you believe in that same God now do you? Were you not just saying that our laws should not be based off our religion? If not from God then from where?

So just what are these inalienable rights you speak and where do they come from if not from the will of the majority?
Rights are legal constructs that arise out of social interactions between people. The most fundamental basis for them -- for those rights thought of as inalienable -- is something I would think that you, if you are a Christian, would be supportive of: The "Golden Rule" of treating others as you would want to be treated, of not reserving things for yourself that you deny to others for no reason other than you want it.

Inalienable rights are all those things that support the specific areas named by the founders in their letters and in the Declaration of Independence, which is a kind of "mission statement" for the philosophy underpinning the set-up of the nation: Life, Liberty, and the Pursuit of Happiness.

Marriage is connected to the Pursuit of Happiness inasmuch as it allows people to set up their personal lives in a manner that is pleasing and beneficial to them without causing harm to others. Therefore marriage between consenting, competent adults is an inalienable right of human beings. All the legal protections, authorities and privileges attached to marriage are part of that as well, inseparable due to their function.

There is no need to refer to any god(s) in order to judge whether a given thing relates positively or negatively to the concepts of Life, Liberty and the Pursuit of Happiness.

In addition, it is relatively easy to tell whether a thing is a violation of those. All one has to do is examine the argument and see whether it places one group at a social and/or legal advantage over another, and whether there really is any social detriment to not creating that inequality.

Regardless of whether they are religious or not, the arguments against gay marriage have no effect -- and claim no effect -- other than to reserve marriage and all the legal things that go with it for some people while denying it to others -- thus putting heteros at an advantage over gays -- while showing no evidence whatsoever that NOT doing that, but rather allowing gays to marry, would cause any damage to society at all.

Clearly, it is a self-interested argument that is not meant for the greater good of society as a whole.

In addition, your comment, above, suggests once again your fundamental bigotry against gays. Here's how:

You assert that inalienable rights come from God.

You argue in favor of denying a right to gays.

What's the next step? Gays don't come from God? Gays are rejected by God and that's why it's okay to deny them rights that heteros get? Fred Phelps, is that you?

You sure you want to step off that cliff?

Except that marriage does not seem to as inalianable as we thought otherwise you could not discriminate marriage in respect to age or number of partners. Yet, we find it is not inalianable. You cannot marry a 12 year for example. Nor can you have more than one wife. If marriage was inalianable as opponents of Prop 8 would have us believe, then government would have no power to limit it. Yet government does indeed have the power to limit who can get married. And in California, the power to decide who can marry rests with the popular majority because of the system of government known as Direct Democracy.
More bullshit.

Marriage to children/minors is a violation of THEIR rights because they are not able to give free and informed consent. There is no inalienable right to harm or otherwise use other people.

As for polygamy, there are practical problems with the down-to-earth functions of marriage -- property control, child custody, estate rights, health care decisions, etc -- that the law has not been able to resolve when more than two adults are involved, and really has not tried to. That does not mean that such a resolution or new system could never be developed. It just means that we have not had that fight yet. One battlefield at a time.

well, for devil's advocate, I don't agree there is NO legitimate argument. There is one, and it's not a great argument, but it's there.

THere is....some legitimacy to the argument of "the word marriage, in our cultural history, means one man one woman". The argument is, it's not about rights, it's not about seperation, it's just about the meaning of the word. It's a semantics argument yes, but semantics can be important. Theoretically the same objection would be levied to a law that proportes to call all automobiles "glorts". They're not glorts, they're automobiles. Marriage has a meaning, it has a definition, this is changing that definition.

I also think that the VAST majority of people who make that argument care little for semantics, and more for a convenient way to put gays "in the back of the bus" so to speak. You can always tell though who makes that argument for actual semantic reasons, and who does it through veiled bigotry. Simply propose we just stop calling ANY of it marriage, make a new term that encompases everyone.

If they're fine with that, then I'm willing to concede a validity (not much) of a purely semantics argument.
I disagree on the grounds that I see no validity whatsoever in the "cultural tradition" argument. To me, that is nothing more than another stanza of the "it's our privilege and we ain't sharing" song.

Marriage is a relationship between a man and woman.
That is the entire crux of the debate. Not a foregone conclusion.

Marriage is a relationship between a man and woman.

It wasn't always. It was until recently a relationship between a white man and a white woman.

Words change.

That is the entire crux of the debate. Not a foregone conclusion.

It is, if it is not the core of the person's beliefs. I have the distinct feeling we're going to argue in circles for the duration of the thread, since UnitedStatesOfAmerica- will obstinately hold their position, regardless of the information we throw their way.

I disagree on the grounds that I see no validity whatsoever in the "cultural tradition" argument. To me, that is nothing more than another stanza of the "it's our privilege and we ain't sharing" song.

I agree, I'm not discussing the "we should keep tradition!" argument. I'm saying I see some validity ina PURELY semantics argument, by which "a word has a meaning, regardless of WHY it has that definition, it does. Don't use words improperly"

I have SOME sympathy for that argument, but it is, as I said, a purely intellectual one.

It is, if it is not the core of the person's beliefs. I have the distinct feeling we're going to argue in circles for the duration of the thread, since UnitedStatesOfAmerica- will obstinately hold their position, regardless of the information we throw their way.

Mockery is still out though, isn't it? :(

Mockery is still out though, isn't it? :(

Mockery is always in style. :) Of course, it may not always be the right dress code for the situation.

I agree, I'm not discussing the "we should keep tradition!" argument. I'm saying I see some validity ina PURELY semantics argument, by which "a word has a meaning, regardless of WHY it has that definition, it does. Don't use words improperly"

I have SOME sympathy for that argument, but it is, as I said, a purely intellectual one.

It's a pretty weak intellectual argument, even. Our language is defined by its dynamic nature.

I know that. I am just worried that my denomination might not see things that way as they are still formulating an opinion on this issue and are known to be rather liberal, not that I mind them being liberal in some respects.

And your issues with your church are important to the rest of us how? If you don't agree with your church, find a new church. There are plenty. To base any kind of argument on "well my church might get swept up in the liberalness and change its mind about the gays being evil!" is... I won't finish that. You know.

Marriage is a relationship between a man and woman.

Not that tired horse again.

Jumping the gun just a little, no?He already started masturbating. ;)
but when he goes off, will be be firing blanks?

well, at least we know a decision will be made in about 3 months... I will be expecting an update! *nods*

What makes a gay person less deserving of the right to marry a person of their choice than anyone who may be straight or bisexual?

That's not what its about. Its not about whether they deserve it or not. I can think whatever I want personally about gay marriage, which is why I vote how I do when I go to the polls. However, a majority of Californians thought that gay marriage should be illegal, and they voted as such. I have little doubt that in a few years the gay rights movement will have gained enough speed and cred that laws banning gay marriage will be overturned. But! to be legitimate, this overturning has to happen democratically, not judicially.

That's not what its about. Its not about whether they deserve it or not. I can think whatever I want personally about gay marriage, which is why I vote how I do when I go to the polls. However, a majority of Californians thought that gay marriage should be illegal, and they voted as such. I have little doubt that in a few years the gay rights movement will have gained enough speed and cred that laws banning gay marriage will be overturned. But! to be legitimate, this overturning has to happen democratically, not judicially.

Which is why our nation is not a true democracy. The very reason we have a constitution is to prevent the many from restricting the rights of the few. (and to prevent the few from restricting the rights of the many)

Which is why our nation is not a true democracy. The very reason we have a constitution is to prevent the many from restricting the rights of the few. (and to prevent the few from restricting the rights of the many)

First of all, in this specific case, the California voters amended their state Constitution. So now, it is unconstitutional for gays to get married. If the state Supreme Court overturns that, they aren't declaring the law unconstitutional, they are amending the Constitution itself.

Secondly, when the founders created the Constitution, do you think it was mostly to create a democracy or mostly to create a Constitution? There are several places where majority rule is checked, yes, but Hamilton clearly wanted the Judicial Branch to be the weakest of all the branches. He wanted them to be able to destroy, thus providing a check on the power of the legislature, but he did not want them to be able to create.

There are benefits that married people are given, for marrying. The Courts, in my opinion, would be far safer removing these benefits than granting them to a new block of people. Thus, the mantra of "destroy rather than create" is upheld. My opinion does not run contrary to what the founders intended, but rather follows in lockstep with their intentions.

Those aren't the only two natural rights that I believe exist. They are just two of them. I used them as examples. Suffice it to say that I don't think marriage is an important enough issue to qualify.
Well, you believe that property is a "natural right", yes? Do you agree that an important part of property is contracts, or do you at least believe that the majority of people view the ability to create and enter into contracts as an important part of property rights, the ability to control your own property and assets? Since marriage is a contract do you believe that it is going against your rights to control your body, assets and property in general if you are unable to sign this contract based on.... I don't even know what it's based on.
Also to you believe that the laws that the majority of people agree to should applied unequally? Even if you think that in all situations the people should be able to create their own laws why do you think that they should act as jury, prosecutor, judge for each individual/group to decide whether the rights that the majority has allowed to everyone should be extended to a particular group?

Who am I to argue with Hamilton. However, he himself viewed the Supreme Court as the weakest branch of the federal government, and it was the Supreme Court itself with gave itself the power to review law for Constitutionality.
It gets its power from both the constitution and -because of that system of checks and balances that you having going over there- the executive branch and therefore, by extension the majority.
I'm not saying that it was wrong, per se, just that it isn't a power descended from God Himself.
No powers are.
I don't argue with the idea that the founders wished to place certain checks on tyranny of the majority,
Everything that you've said seems to contradict that.
but I would also like to point out that the evolution of checking majority rule leads to rule of the minority instead. At a certain point, we have to listen to the majority opinion.
How does allowing the minority to have the same rights as the majority mean that the minority rule? How has this at all crossed that line?
The best I can come up with at this point is that the Courts would best be suited, in my opinion, for taking away legal rights rather than bestowing them.
Why? If that's the best you can come up with maybe you should consider that your arguement has a flaw.
I care because some would like the Court to overstep its bounds and overturn what was democratically-decided. Believe me, I would just as soon not have such issues to worry about.

The court did not overstep its bounds. It is perfectly well within its jurisdiction to say that withholding marriage from homosexuals is against its constitution. It is also within its jurisdiction and duty to apply the constitution equally. It did these two things. Please tell me where is overstepped its bounds.
Marriage is a relationship between a man and woman.
Marriage was a relationship between two consensual people, Prop 8 is trying to change this.
But! to be legitimate, this overturning has to happen democratically, not judicially.
Why?

The Supreme Court of California is currently leaning toward upholding Proposition 8, the California ballot initiative which changed the state's constitution to ban same sex marriages.
Responding to Prop 8 opponents a couple of the justices said it was more important to protect the soveriegnty of the people of California to make their own laws and constitutions without outside interference.

Having voted for both Prop 22 and Prop 8, campaigned heavily for Prop 8 and participated in several pro-8 rallies after the court decided to interfere yet again, all I can say is, it's about damn time.

I, along with millions of others, am fed up with having my votes nullified by unelected judges imposing their political agendas.

If indeed the court makes the right decision and upholds Prop 8, I will most certainly celebrate.

I can envision the best-case scenario:

1) Prop 8 is upheld.

2) Suits are filed to invalidate so-called domestic partnerships and associated benefits on the grounds that i) anything that has all the functional attributes of marriage is in fact marriage, regardless of the name applied to it, and ii) only marriages between one man and one woman are allowed, therefore iii) so-called domestic partnerships are not to be recognized.

3) Supreme Court agrees.

Bigger miracles have happened before :D

It gets its power from both the constitution and -because of that system of checks and balances that you having going over there- the executive branch and therefore, by extension the majority.
Technically, you're right. And since the Senate advices and consents, there's another supposedly democratic way to look at it. However, the judges are not directly elected, and therefore are not democratically chosen. Adding links in that chain removes the democracy.

The court did not overstep its bounds. It is perfectly well within its jurisdiction to say that withholding marriage from homosexuals is against its constitution. It is also within its jurisdiction and duty to apply the constitution equally. It did these two things. Please tell me where is overstepped its bounds.
It would be overstepping its bounds by presuming to amend the Constitution after the voters of California did so to suit their own needs.

Why [does it need to be overturned democratically to be legit]?
Simple: because this is a democracy. I know I know, constitutional democracy, its been said before, but I still have the same response - the democracy part is more important than the constitution part. The Constitution is a powerful document that was written by some very smart folks, and has stood the test of time. It was, and will always remain, however, a defense of democracy, not a defense of itself.

When the Constitution was written, Madison, Monroe, Jefferson, Jay and Hamilton drew upon other popular philosophical works to inform their writings. One of the books they looked to for guidance was Adam Smith's On the Wealth of Nations. They took his theories of economics, and applied them to political science. Thus, our democracy was formed. Ours is a democracy where the philosophy is this: if each individual looks out for their own self interests, the general good will best be served. This is how they approached democracy, and as such it is how we view it as well. Majority rule is the best way in which to create laws which will do the most good to the most people.

As we know, this is not always true. There is such a thing as tyranny of the majority. We should not be so afraid of it, however, because it is not nearly so prevalent a thing as some would believe. There are cases where a clear overreaching takes place, but not often. In most cases, the simple transaction costs of government stop this from taking place. Culturally, as a country, we have changed over time. This has not been through the Courts, who are as subject to whim and fad as the voters - even more so, since there are no checks upon their power. This has been through the voters, democratically responding to evolution in our social structures.

To be clear, despite my position on this issue, my views are not those of New Mitanni. Thank you.

Those gay people should not have brought in all those outsiders to dictate to Californians how to run their own state. They might have gotten a more sympathetic ear otherwise.

So the Mormons from Utah raising $32 million (it was 32 right?) for the Yes on Prop 8 campaign weren't outsiders then?

That's not what its about. Its not about whether they deserve it or not. I can think whatever I want personally about gay marriage, which is why I vote how I do when I go to the polls. However, a majority of Californians thought that gay marriage should be illegal, and they voted as such. I have little doubt that in a few years the gay rights movement will have gained enough speed and cred that laws banning gay marriage will be overturned. But! to be legitimate, this overturning has to happen democratically, not judicially.

Yes, they voted that way, but it still fails to explain why gays are less deserving of the right to marry someone who is the same gender as they are.

Not everything in history happened democratically. I realise that this is ad nauseum at this point, but it is valid: Anti-miscegenation laws (http://en.wikipedia.org/wiki/Anti-miscegenation_laws).

http://www.weaselhut.net/Antimiscegenation.jpg

This cartoon illustrates the point well.

Gay marriage and interracial marriage are two separate issues, but interracial marriage once faced the same opposition that same-sex does. Sometimes change has to come by force. The majority is just that a majority. Might doesn't make right.

People were opposed to women having the vote.

People were opposed to giving people of colour rights; freedom.

People were opposed to women having a job and being outside the house.

People, as a majority, through time were opposed to a lot. Not everything came through democratic means. People have resisted as large groups to change. It takes more than democracy to make change happen sometimes. Sometimes rights need to come ahead of their time in order to preserve a democracy.

So, I ask again, why are gay folks less deserving than hetero? Why should the California SC prop up something that denies people a simple right that doesn't harm anyone? I do not feel I have received a satisfactory answer.

It is, if it is not the core of the person's beliefs. I have the distinct feeling we're going to argue in circles for the duration of the thread, since UnitedStatesOfAmerica- will obstinately hold their position, regardless of the information we throw their way.
I am fairly certain USofA has run his course and has nothing left but repetition. I have laid out all of my counter arguments. The circle has been traced. After this, I probably won't argue anything he adds from here on in but to refer him back to my other posts on the grounds that he has already been answered -- unless he does come up with something new.

But of course, USofA is not going to change his mind. Changing HIS mind is not the point of debating people like him -- people who are so set on their preset opinions. The point is to illustrate the flaws in his position to others -- readers of the thread.

But I don't like typing the same thing over and over forever.

(EDIT: PS: I feel sorry for the poor little kitty in your avatar. ;))

I agree, I'm not discussing the "we should keep tradition!" argument. I'm saying I see some validity ina PURELY semantics argument, by which "a word has a meaning, regardless of WHY it has that definition, it does. Don't use words improperly"

I have SOME sympathy for that argument, but it is, as I said, a purely intellectual one.
I know you don't hold that opinion. I was just saying that I personally DON'T have sympathy for that point of view because I see it as purely self-indulgent for those who do hold it.

Yes, they voted that way, but it still fails to explain why gays are less deserving of the right to marry someone who is the same gender as they are.

Not everything in history happened democratically. I realise that this is ad nauseum at this point, but it is valid: Anti-miscegenation laws (http://en.wikipedia.org/wiki/Anti-miscegenation_laws).

http://www.weaselhut.net/Antimiscegenation.jpg

This cartoon illustrates the point well.

Gay marriage and interracial marriage are two separate issues, but interracial marriage once faced the same opposition that same-sex does. Sometimes change has to come by force. The majority is just that a majority. Might doesn't make right.

People were opposed to women having the vote.

People were opposed to giving people of colour rights; freedom.

People were opposed to women having a job and being outside the house.

People, as a majority, through time were opposed to a lot. Not everything came through democratic means. People have resisted as large groups to change. It takes more than democracy to make change happen sometimes. Sometimes rights need to come ahead of their time in order to preserve a democracy.

So, I ask again, why are gay folks less deserving than hetero? Why should the California SC prop up something that denies people a simple right that doesn't harm anyone? I do not feel I have received a satisfactory answer.

*Steals comic* This might come in handy in the future. :)

People were opposed to women having the vote.
http://en.wikipedia.org/wiki/Nineteenth_Amendment_to_the_United_States_Constitution
People were opposed to giving people of colour rights; freedom.
http://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution
http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

So, I ask again, why are gay folks less deserving than hetero?
Once again, its not about what's "deserved". That is too subjective a word. It is about what was decided democratically.

I am not pro-inequality. I am simply stating that for the change to be legitimate (it will always come, despite our present opinions) it needs to be decided upon democratically.

http://en.wikipedia.org/wiki/Nineteenth_Amendment_to_the_United_States_Constitution

http://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution
http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution


Once again, its not about what's "deserved". That is too subjective a word. It is about what was decided democratically.

I am not pro-inequality. I am simply stating that for the change to be legitimate (it will always come, despite our present opinions) it needs to be decided upon democratically.
You're not in favor of inequality, but you are in favor of letting the majority decide if they feel like treating their fellow citizens equally or not? I see. So, in other words, you're fine with inequality so long as you can gin up something you think you could use for plausible deniability?

Technically, you're right. And since the Senate advices and consents, there's another supposedly democratic way to look at it. However, the judges are not directly elected, and therefore are not democratically chosen. Adding links in that chain removes the democracy.
You already live in a representative, not direct democracy therefore you are already removed from this idealized version of democracy because it works better. There is no reason that democracy is superior other than it functions better than alternative systems of government. Therefore the only good thing about democracy is the results, when the results suffer than you change the system to yield better results even if that means less democracy. You seem to think that "It's democratic!!!!1!" makes an argument. It doesn't.


It would be overstepping its bounds by presuming to amend the Constitution after the voters of California did so to suit their own needs.
The voters overstepped their boundaries, by doing so and are now violating human rights. Their right to swing their fists ends where the other person's nose begins as the saying goes. Their right to determine laws stops where others right to marriage begins as establish by Loving vs. Virginia, The Equal Protection Clause of the Fourteen Amendment and The Due Process Clause. Even if California altered their constitution the US's constitution still prevents them from violating the rights of the minority.


Simple: because this is a democracy. I know I know, constitutional democracy, its been said before, but I still have the same response - the democracy part is more important than the constitution part. The Constitution is a powerful document that was written by some very smart folks, and has stood the test of time. It was, and will always remain, however, a defense of democracy, not a defense of itself.
It is a defence of a system that includes democracy, the constitution, the majority and the minority. It upholds the principals that the same rights belong to everyone. How can you have democracy if one group has more political power (rights included) than another. It undermines the system of everyone having an equal say. Taking away rights from a group just because you think they're icky isn't democratic. If it is then democracy is worthless and we should move onto a better system.
When the Constitution was written, Madison, Monroe, Jefferson, Jay and Hamilton drew upon other popular philosophical works to inform their writings. One of the books they looked to for guidance was Adam Smith's On the Wealth of Nations. They took his theories of economics, and applied them to political science. Thus, our democracy was formed. Ours is a democracy where the philosophy is this: if each individual looks out for their own self interests, the general good will best be served. This is how they approached democracy, and as such it is how we view it as well.
That's nice however considering that they made stipulations on this it is obvious that they thought there were limits, these limits include the equal protection clause.
Majority rule is the best way in which to create laws which will do the most good to the most people.
No it's not because then you have tyranny of the majority.

As we know, this is not always true. There is such a thing as tyranny of the majority. We should not be so afraid of it, however, because it is not nearly so prevalent a thing as some would believe.
And yet, here it is so let's employ the safe guards that prevent it.
here are cases where a clear overreaching takes place, but not often.
Luckily they prepared you for cases where it does happen.
In most cases, the simple transaction costs of government stop this from taking place. Culturally, as a country, we have changed over time. This has not been through the Courts,[quote]
what about interracial marriage, women's right to choose etc.
[quote] who are as subject to whim and fad as the voters - even more so, since there are no checks upon their power.
They also make mistakes but they are significantly better educated than the voters.
This has been through the voters, democratically responding to evolution in our social structures.
Not always.

You also didn't answer this: Also to you believe that the laws that the majority of people agree to should applied unequally? Even if you think that in all situations the people should be able to create their own laws why do you think that they should act as jury, prosecutor, judge for each individual/group to decide whether the rights that the majority has allowed to everyone should be extended to a particular group?

You already live in a representative, not direct democracy therefore you are already removed from this idealized version of democracy because it works better.
However, we are talking about a referendum, which is direct democracy. Democracy exists in its purest form in select few instances in our republic, and it is important that we protect it where it does. It is important to note that no one has more political power than another. We all have the exact equal amount of political power - one vote. This is the power that democracy gives us, so when the courts presume to exercise greater power than the people have, through the only voice they wield, I get ornery.

That's nice however considering that they made stipulations on this it is obvious that they thought there were limits, these limits include the equal protection clause.
The equal protection clause of the 14th Amendment does not relate to what the founders believed about the judiciary. The limits they placed on the judiciary are very clear, and while they have been changed (by that very same judiciary, conveniently), they still exist.

Having voted for both Prop 22 and Prop 8, campaigned heavily for Prop 8 and participated in several pro-8 rallies after the court decided to interfere yet again, all I can say is, it's about damn time.

I, along with millions of others, am fed up with having my votes nullified by unelected judges imposing their political agendas.

If indeed the court makes the right decision and upholds Prop 8, I will most certainly celebrate.



I want to know what world you live in where the court over turning unconstitutional laws is somehow unconstitutional.

The whole point of the constitution is to prevent people from passing laws that are oppressive, regardless of what the majority wants.

It sounds to me like you have a problem with the constitution, not judges. In other words, you hate America, and by extension, freedom.

I, along with millions of others, am fed up with having my votes nullified by unelected judges imposing their political agendas.
Then I well and truly hope that the next time the US or California Supreme Court has to declare, say, legislation contrary to the second amendment (or the California equivalent) you will be just as outraged?

On a more technical level - are you expecting elected judges to be apolitical, or is it the concept of constitutions protecting individual rights that you find so repugnant?

However, we are talking about a referendum, which is direct democracy.
That contradicts the constitution by applying the law unequally.


This is a decision for the Supreme Court of the United States, not the Supreme Court of California.
Agreed.

The equal protection clause of the 14th Amendment does not relate to what the founders believed about the judiciary. The limits they placed on the judiciary are very clear, and while they have been changed (by that very same judiciary, conveniently), they still exist.

"...that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness"
Them seemed to think that all men were created equal, they should have the law applied equally to them
This is the power that democracy gives us, so when the courts presume to exercise greater power than the people have, through the only voice they wield, I get ornery.
They exist to enforce the constitution, your people seem to support having a constitution. Since, presumably, you enjoy having it as more than elitist toilet paper you probably want it to be enforced. Therefore they have the consent of the people to make sure that and laws are constitutional. They seem to be completely within their power.

Then I well and truly hope that the next time the US or California Supreme Court has to declare, say, legislation contrary to the second amendment (or the California equivalent) you will be just as outraged?

Oh, of course he wont. See, owning a gun is a "real" right. Not a fake right made up my dirty socialists.

"...that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness"
Them seemed to think that all men were created equal, they should have the law applied equally to them

If there is a case of the law being applied unequally, it is the role of the courts to eliminate the law to prevent inequality, not further extend the law. Destroy, not create. Besides, that particular line was Locke's, and I don't think you'd agree with many of his positions.

If there is a case of the law being applied unequally, it is the role of the courts to eliminate the law to prevent inequality, not further extend the law. Destroy, not create.

Who is creating?

Besides, that particular line was Locke's, and I don't think you'd agree with many of his positions.

Actually, that line is Jefferson's. Locke's is "...life, liberty, and property" and isnt quite as "poetic".

If there is a case of the law being applied unequally, it is the role of the courts to eliminate the law to prevent inequality, not further extend the law. Destroy, not create. Besides, that particular line was Locke's, and I don't think you'd agree with many of his positions.
They are eliminating the law(in this case proposition) preventing inequality. Gay marriage existed in California pre-prop 8 they are trying to eliminate it.
And I do agree with some of Locke says about parental vs political consent, tacit consent, all men being created equal and the general idea of the Social Contract. But that's has nothing to do with the fact that the creators for your country agreed with him about men being equal.

Who is creating?
In a situation where the courts eliminate the amendment to the Constitution that was passed by a majority of California voters, they are extending the legal benefits of marriage to include a new bloc of individuals. The alternative would be the removal of those legal benefits. Destroy over create, see?

Actually, that line is Jefferson's. Locke's is "...life, liberty, and property" and isnt quite as "poetic".

Jefferson plagiarized the hell out of Locke. If I changed a word like that in one of my papers today, I'd be in violation of my school's honor code.

Who is creating?



Actually, that line is Jefferson's. Locke's is "...life, liberty, and property" and isnt quite as "poetic".

Plus prioritizing property beside life and liberty lead to some of his.... weirder ideas. Texas is the only place those weird ideas took root more strongly than the whole "pursuit of happiness thing" so they used that because it was more "uniting". :p

Plus prioritizing property beside life and liberty lead to some of his.... weirder ideas.

Locke was a strong proponent towards the unlimited accumulation of property, since after the introduction of money his three limits on said accumulation in the state of nature disappear.

Though it has been argued that his placing the emphasis on labor is more of an argument for those who labor at the lowest level, but that's a newer line of discussion.

In a situation where the courts eliminate the amendment to the Constitution that was passed by a majority of California voters, they are extending the legal benefits of marriage to include a new bloc of individuals. The alternative would be the removal of those legal benefits. Destroy over create, see?

They would be throwing out prop 8.

In a situation where the courts eliminate the amendment to the Constitution that was passed by a majority of California voters, they are extending the legal benefits of marriage to include a new bloc of individuals. The alternative would be the removal of those legal benefits. Destroy over create, see?

The whole point of the supreme courts is to "destroy" unconstitutional laws (slight exaggeration, but it is what we use them the most for). The whole point of the Constitution is to protect rights, regardless of what the government or the majority wants.

The court is doing their job. Theyre not creating rights. Theyre just not letting others take away rights.

Jefferson plagiarized the hell out of Locke. If I changed a word like that in one of my papers today, I'd be in violation of my school's honor code.

No shit. Dont lecture me about political theorists. The point is, he quoted Jefferson, not Locke, so youre little off topic nitpick was wrong.

No shit. Dont lecture me about political theorists. The point is, he quoted Jefferson, not Locke, so youre little off topic nitpick was wrong.

So what you're saying is that Jefferson quoted Locke, but when he quoted Jefferson and I said Jefferson quoted Locke I was wrong?

Interesting.

No shit. Dont lecture me about political theorists. The point is, he quoted Jefferson, not Locke, so youre little off topic nitpick was wrong.

Who you calling he? :p

So what you're saying is that Jefferson quoted Locke, but when he quoted Jefferson and I said Jefferson quoted Locke I was wrong
Jefferson got his ideas from Locke but didn't quote directly. I'm sure that we're all very familiar with 17th Century thinkers, but that is irrelevant so let's just move on.

So what you're saying is that Jefferson quoted Locke, but when he quoted Jefferson and I said Jefferson quoted Locke I was wrong?

Interesting.

No, Im saying that Locke and Jefferson, while having similar themes, said slightly different things. She quoted Jefferson verbatum, not Locke, no matter how much Locke influenced Jefferson.

Ergo, correcting her and saying "That was actually Locke neener neener" when it was in fact Jefferson is wrong.

Now that we've delt with your attempted nit pick, lets focus on your actual arguements. You would be better served defending those.
Who you calling he? :p
On the internet, men are men, women are men*, and children are FBI agents.

*-Unless there are pics, in which case I post "TITS OR GTFO" :p

Forgive me if someone else has already said this, but I think it's important to note that this is a procedural challenge. The argument is that the process by which it was passed does not meet the requirements needed to become a part of the Constitution.

It's an argument that I think holds merit, especially given the earlier decision of the court. The court initially declared the denial of same-sex marriage unconstitutional because the CA constitution guarantees equal protection under the law, regardless of sex or sexual orientation. Prop 8 would basically overturn the portion of the constitution that makes that guarantee - saying that CA actually can treat people unequally on that basis. This is a large change to the constitution. As such, I think the argument that it is a revision, rather than an amendment, and thus requires a constitutional convention, makes sense.

Note, such a decision would not prevent the people of CA from deciding to discriminate against those seeking same-sex marriage. It would just make it such that they have to go through a different procedure to get there.

quick question. can the court rule marriage is between a man and woman due to the amendment but find civil unions have to be offered?

Yes, it can. As a matter of fact, California had civil unions with substantively equivalent legal rights before In re Marriage Cases, and the logic of that decision certainly suggests that such unions are necessary under equal protection.

or did prop 8 block that ?

Prop. 8, as has been repeatedly stressed by the proponents, concerns marriage only, not civil unions. It would have failed, probably decisively, otherwise.

I want to know what world you live in where the court over turning unconstitutional laws is somehow unconstitutional.

The Republic of Fort Sumter.

The whole point of the constitution is to prevent people from passing laws that are oppressive, regardless of what the majority wants.

It sounds to me like you have a problem with the constitution, not judges. In other words, you hate America, and by extension, freedom.

Remember, Propositions 8 and 22 are the will of the people, but Obama's election was an evil plot carried out by invaders from Mordor.

http://en.wikipedia.org/wiki/Nineteenth_Amendment_to_the_United_States_Constitution

http://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution
http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution


Once again, its not about what's "deserved". That is too subjective a word. It is about what was decided democratically.

I am not pro-inequality. I am simply stating that for the change to be legitimate (it will always come, despite our present opinions) it needs to be decided upon democratically.

Yes, some laws are made democratically through the different levels of the government. The government has the power to produce legislation in order to codify law.

However, the laws of the United States of America (http://en.wikipedia.org/wiki/Law_of_the_United_States) are heavily based on, and influenced by the English law system, called "common law (http://en.wikipedia.org/wiki/Common_law)", which relies on the judicial system. Law is derived from precedent, and is designed to evolve as it is tested time and time again by the courts. These laws are derived from case law.

If the courts to rule in favour of gay marriage, it would not be a stretch because the American law system isn't just codified law, it's case law.

before I get into the ping-pong posts in this thread.

1. I have not yet watched all of the oral argument, but have watched part of it. And I have read the many news accounts that claim the Cal Supreme Court Justices were "leaning" or "clearly leaning" this way or that. Given the make-up of the court it is rather shocking they upheld same-sex marriage in the first place and I won't be surprised if the court fails to reject Prop 8. BUT as someone with much experience regarding appellate courts and oral argument, I WILL FUCKING GUARANTEE THAT YOU CAN'T NECESSARILY TELL HOW A COURT IS GOING TO DECIDE BASED ON HOW ORAL ARGUMENT WENT. Trust me, judges deliberately ask questions or make statements that seem to indicate they are voting one way or another when they have no such prediliction.

2. As some have tried to point out, 90% of this thread ignores that actual issues before the California Supreme Court in this case and ramble on about irrelevancies like "the will of the people." The specific issues for the court include:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Note that the first question is a procedural question. If Prop. 8 is a revision, it is not a properly enacted change to the California Constitution. End of story.

3. The California Supreme Court already decided that same-sex marriage is a fundamental right protected by the California Constitution. THAT IS NOT AT ISSUE. The issue is whether the Constitution was properly changed to take away that right.

4. For the record, the California Supreme Court is an elected body. So all this talk of unelected judges flouting majority rule is ignorant and ridiculous.

5. FWIW, I totally object to the hate-law that is Prop. 8, believe it to be both legally and morally wrong, and agree with the challenges to its enactment. None of that, however, makes anything I said in my first four points untrue or biased.

Having voted for both Prop 22 and Prop 8, campaigned heavily for Prop 8 and participated in several pro-8 rallies after the court decided to interfere yet again, all I can say is, it's about damn time.

I, along with millions of others, am fed up with having my votes nullified by unelected judges imposing their political agendas.

If indeed the court makes the right decision and upholds Prop 8, I will most certainly celebrate.

I can envision the best-case scenario:

1) Prop 8 is upheld.

2) Suits are filed to invalidate so-called domestic partnerships and associated benefits on the grounds that i) anything that has all the functional attributes of marriage is in fact marriage, regardless of the name applied to it, and ii) only marriages between one man and one woman are allowed, therefore iii) so-called domestic partnerships are not to be recognized.

3) Supreme Court agrees.

Bigger miracles have happened before :D

Out of curiosity: You say Prop 8 should be upheld because it's will of the people blah blah blah (I'll do you the courtesy of assuming it's not just because your a bigoted piece of trash for the sake of argument). But the Dark Lord's election was also the will of the people. What makes them different?

That's not what its about. Its not about whether they deserve it or not. I can think whatever I want personally about gay marriage, which is why I vote how I do when I go to the polls. However, a majority of Californians thought that gay marriage should be illegal, and they voted as such. I have little doubt that in a few years the gay rights movement will have gained enough speed and cred that laws banning gay marriage will be overturned. But! to be legitimate, this overturning has to happen democratically, not judicially.

You do not appear to understand the concepts of rights or equal protection under the law.

These are not matters for popular vote.

Although this quote relates to the U.S. Constitution, SCOTUS's words in West Virginia State Board of Education v. Barnette (http://laws.findlaw.com/us/319/624.html ), 319 US 624, 638 (1943), are relevant here:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

First of all, in this specific case, the California voters amended their state Constitution. So now, it is unconstitutional for gays to get married. If the state Supreme Court overturns that, they aren't declaring the law unconstitutional, they are amending the Constitution itself.

Um. At issue is whether the amendment was properly enacted. If it wasn't the California voters did not properly amend the California Constitution. QED.

Secondly, when the founders created the Constitution, do you think it was mostly to create a democracy or mostly to create a Constitution? There are several places where majority rule is checked, yes, but Hamilton clearly wanted the Judicial Branch to be the weakest of all the branches. He wanted them to be able to destroy, thus providing a check on the power of the legislature, but he did not want them to be able to create.

Setting aside for a moment that you are confusing the U.S. Constitution and the California Constitution, this is utter bullshit. The U.S. Constitution clearly codified the power of Judicial Review and the Founders did not believe the rights protected by the Constitution were limited to those enumerated (see, e.g., the Ninth Amendment).

Because you persist in repeating fictions, I'll repeat my little treatise on judicial review taken this from some prior posts of mine:

1. Judicial review is the very essence of the existence of the Supreme Court and is clearly provided for in our Constitution. See generally Article III (http://caselaw.findlaw.com/data/constitution/article03/) and Article VI (http://caselaw.findlaw.com/data/constitution/article06/) of the U.S. Constitution. This is spelled out at length in Marbury v. Madison (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=5&invol=137), 5 U.S. (1 Cranch) 137 (1803) and, perhaps more importantly, in The Federalist #78 (http://www.constitution.org/fed/federa78.htm).

2. Where exactly in the Constitution is judicial review found?

Well, let's quickly note that Artice VI (http://caselaw.findlaw.com/data/constitution/article06/) tells us that: "This Constitution ... shall be the supreme Law of the Land."

Let us also note that Article I (http://caselaw.findlaw.com/data/constitution/article01/) and Article II (http://caselaw.findlaw.com/data/constitution/article02/) fail to give final power to interpret the Constitution to either the executive or legislative branch.

So, let's now turn to Article III (http://caselaw.lp.findlaw.com/data/constitution/article03/), Section 1: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ..."

I think it inherent in the idea of judicial power that the Court has the power to interpret law. As Justice Marshall declared in Marbury (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=5&invol=137), "It is emphatically the province and the duty of the judicial department to say what the law is." That this was intended by the Founders to be so read is confirmed by Federalist #78 (http://www.constitution.org/fed/federa78.htm): "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

One also can look to the overall scheme of the Constitution, particularly the setting up of checks and balances. The judicial power to interpret law is the judiciary's primary check on the other branches. Without it, the system of checks and balances fails.

Regardless, in Article III (http://caselaw.lp.findlaw.com/data/constitution/article03/), Section 2, we are informed: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ..."

Thus, any doubt that the Court has the power in both Law and Equity to rule on cases involving the meaning of the Constitution is removed. Such cases are emphatically within the judicial Power.

Finally, in Article III (http://caselaw.lp.findlaw.com/data/constitution/article03/), Section 2, we learn: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. "

Thus, the judicial power includes the jurisdiction over both fact and law questions in cases arising under the Constitution. Again, the Court has the power to interpret law, including the Supreme Law of the Land.

3. Where did the concept of judicial review come from? Judicial review did not spring full-blown from the brain of Chief Justice Marshall in Marbury. The concept had been long known. The generation that framed the Constitution presumed that courts would declare void legislation that was repugnant or contrary to the Constitution. They held this presumption because of colonial American practice. Judicial review in the English common law originated at least as early as Dr. Bonham's Case (http://plaza.ufl.edu/edale/Dr%20Bonham's%20Case.htm) in 1610. Judicial review was utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters. In 1761 James Otis, in the Writs of Assistance Case (http://www.nhinet.org/ccs/docs/writs.htm) in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. And there were several instances known to the Founders of state court invalidation of state legislation as inconsistent with state constitutions.

Practically all of the Founders who expressed an opinion on the issue in the Constitutional Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, and I have already noted the power of judicial review was explicity set forth in The Federalist Papers (http://thomas.loc.gov/home/histdox/fedpapers.html). Similar statements affirming the power of judicial review were made by Founders duing the state ratifying conventions. In enacting the Judiciary Act of 1789 (http://www.constitution.org/uslaw/judiciary_1789.htm), Congress explicitly made provision for the exercise of the power, and in other debates questions of constitutionality and of judicial review were prominent.

And, as I have also noted, in the 200 years since Marbury the power of judicial review has been accepted and further expounded. If it were truly a mere power-grab, it could have long ago been nullified. Objections to judicial review motivated by a dislike for a specific line of caselaw are both historically inaccurate and rather tedious. (In writing this brief overview of some of the history of judicial review, I've relied on numerous sources beyond the original sources linked above. I wouldn't claim to have known all of the above off the top of my head. :))

4. Is judicial review valid? Another case you might check out that confirms the Court's power of judicial review is the unanimous decision in Cooper v. Aaron (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=358&invol=1), 358 U.S. 1 (1958):

As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=347&invol=483), 347 U.S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.
. . .
However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397 -398.



5. More on the history of judicial review. I've already established that judicial review was not a new idea and had existed under common law. Here is more from Currie, The Constitution in the Supreme Court: The Powers of the Federal Court 1801-1835, 49 U. Chi. L. Rev. 646, 655-656 (1982):

The Privy Council had occasionally applied the ultra vires principle to set aside legislative acts contravening municipal and colonial charters. State courts had set aside state statutes under constitutions no more explicit about judicial review than the federal. The Supreme Court itself had measured a state law against a state constitution in Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), and had struck down another under the supremacy clause in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); in both cases the power of judicial review was expressly affirmed. Even Acts of Congress had been struck down by federal circuit courts, and the Supreme Court had reviewed the constitutionality of a federal statute in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). Justice James Iredell had expressly asserted this power both in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), and in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), and [Justice] Chase had acknowledged it in Cooper. In the [Consitutional] Convention, moreover, both proponents and opponents fo the proposed Council of Revision had recognized that the courts would review the validity of congresssional legislation, and Alexander Hamilton had proclaimed the same doctrine in The Federalist.

6. Also, I'll note the following from A. Bickel, The Least Dangerous Branch 15-16 (1965):

[It] is as clear as such matters can be that the Framers of the Constitution specifically expected that the federal courts would assume a power -- of whatever exact dimensions --to pass on the constitutionality of actions of the Congress and the President, as well as of the several states. Moreover, not even a colorable showing of decisive historical evidence to the contrary can be made. Nor can it be maintained that the language of the Constitution is compelling the other way.


7. On the question of judicial vs. legislative supremacy, Hamilton explains in Federalist #78 (http://thomas.loc.gov/home/histdox/fed_78.html):

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.



Again, the above is from several prior posts of mine on the subject. Feel free to show where I am wrong.

There are benefits that married people are given, for marrying. The Courts, in my opinion, would be far safer removing these benefits than granting them to a new block of people. Thus, the mantra of "destroy rather than create" is upheld. My opinion does not run contrary to what the founders intended, but rather follows in lockstep with their intentions.

From where the fuck do you get "the mantra of 'destroy rather than create'"? For a long list of reasons, that is sheer nonsense.

However, we are talking about a referendum, which is direct democracy. Democracy exists in its purest form in select few instances in our republic, and it is important that we protect it where it does. It is important to note that no one has more political power than another. We all have the exact equal amount of political power - one vote. This is the power that democracy gives us, so when the courts presume to exercise greater power than the people have, through the only voice they wield, I get ornery.

Cute. Complete ignores the whole point of having a state or federal constitution. The Founders of the U.S. Constitution were VERY EXPLICIT in their desire to AVOID direct democracy.

Regardless, you seem utterly ignorant of the fact that the California Supreme Court Justices are, at least in part, ELECTED OFFICIALS.

The equal protection clause of the 14th Amendment does not relate to what the founders believed about the judiciary. The limits they placed on the judiciary are very clear, and while they have been changed (by that very same judiciary, conveniently), they still exist.

First of all, the California Constitution is what is at issue here.

Second, as explained above, your understanding of the judicial power under the original U.S. Constitution is severely warped.

Third, the Fourteenth Amendment was AN AMENDMENT, so it changed some of way the Constitution worked. Duh.

Bump, just to give credit for ultimate legal pwnage.

I think I orgasmed. :)

I think I orgasmed. :)

Yeah, it was hawt.

I think I orgasmed. :)

I hate when LG orgasms, he sends mud flying everywhere.

I hate when LG orgasms, he sends mud flying everywhere.

Oh yeah. That'll stain. ;)

That was.....wow.

That was.....wow.

Yeah, my panties came off.

I want to know what world you live in where the court over turning unconstitutional laws is somehow unconstitutional.

The whole point of the constitution is to prevent people from passing laws that are oppressive, regardless of what the majority wants.

It sounds to me like you have a problem with the constitution, not judges. In other words, you hate America, and by extension, freedom.

Why do you hate freedom pie? :(

Rolling squid;14576077']I really hope this doesn't come to pass. It's not sovereignty that matters in this case, it's human rights. Any just society will put the rights of an individual above the sovereignty of a mass, otherwise we end up with the tyranny of the majority, which would destroy every principle this nation was founded upon.

Why should the majority submit to the whims of a few?

Why should the majority submit to the whims of a few?
...they wouldn't be, they would be respecting the rights of a minority.

Why do you hate freedom pie? :(

Because blueberries are superior to apples... sorry.:(

...they wouldn't be, they would be respecting the rights of a minority.

I disagree if the majority find that they neither like nor support gay marriage then by "respecting the minorities rights" they are giving in to something they don't like.

Because blueberries are superior to apples... sorry.:(

cherries reign over all.

...I wish I could sig the entirety of TCT's post.

Maybe I'll just print it out and shake it in the faces of rallying Prop 8 supporters.

This would all be resolved if California would declare me dictator.

I disagree if the majority find that they neither like nor support gay marriage then by "respecting the minorities rights" they are giving in to something they don't like.

they are respecting peoples rights, they loose nothing. If they don't like that other people have the same rights as them they should move to a country that doesn't believe (or pretend to believe) that all men are created equal.

they are respecting peoples rights, they loose nothing. If they don't like that other people have the same rights as them they should move to a country that doesn't believe (or pretend to believe) that all men are created equal.

How can we determine if someone has the right to a gay marriage?

How can we determine if someone has the right to a gay marriage?

Using the constitution and all that loverly common law stuff.

How can we determine if someone has the right to a gay marriage?

put me in charge and i will tell you.

Also I will start the economy back up by building California's 1st grand palace for me the dear leader.

put me in charge and i will tell you.

Also I will start the economy back up by building California's 1st grand palace for me the dear leader.

I would help you except I hate california. and the west coast for that matter.

I would help you except I hate california. and the west coast for that matter.

well i can defiantly be in charge of much more then just California. Every state deserves a solid gold palace for me to grace them with my presence in.

I would help you except I hate california. and the west coast for that matter.

And I am sure the people of the west coast or just destroyed by that fact.

So are you in the South or North?

And I am sure the people of the west coast or just destroyed by that fact.

So are you in the South or North?

ha south most definitly(check out the location). I dislike yankees more than west coasters(that how you say it?). It's just that i've had bad experinces with both groups putting down southern traditions and methods. (but that is a topic for another thread)

ha south most definitly(check out the location). I dislike yankees more than west coasters(that how you say it?). It's just that i've had bad experinces with both groups putting down southern traditions and methods. (but that is a topic for another thread)

Been to both actually. Seen all 50 states on a road trip, a plane ride and a boat ride(Alaska).

Start a thread about your issues. We haven't had a good fight on that topic in awhile.

but what to call it and what to have the subject be?

Yeah, my panties came off.

Hawt.

And I am sure the people of the west coast or just destroyed by that fact.

So are you in the South or North?

i think California destroyed itself by pretty much beginning one of the worst hit economies.

...I wish I could sig the entirety of TCT's post.

Maybe I'll just print it out and shake it in the faces of rallying Prop 8 supporters.

You could wrap it in spoiler tags, but you better warn that it will explode into a huge wall of text once you click it. :tongue:

Bump, just to give credit for ultimate legal pwnage.
Masterful. Truly masterful. :D So masterful, in fact, that I'm starting to think he's either drafting or plagiarizing course materials when he comes to NSG. ;)

Having voted for both Prop 22 and Prop 8, campaigned heavily for Prop 8 and participated in several pro-8 rallies after the court decided to interfere yet again, all I can say is, it's about damn time.

I, along with millions of others, am fed up with having my votes nullified by unelected judges imposing their political agendas.

If indeed the court makes the right decision and upholds Prop 8, I will most certainly celebrate.

I can envision the best-case scenario:

1) Prop 8 is upheld.

2) Suits are filed to invalidate so-called domestic partnerships and associated benefits on the grounds that i) anything that has all the functional attributes of marriage is in fact marriage, regardless of the name applied to it, and ii) only marriages between one man and one woman are allowed, therefore iii) so-called domestic partnerships are not to be recognized.

3) Supreme Court agrees.

Bigger miracles have happened before :D

Other than the idiocy about "unelected" judges doing their damn job (*gasp*), thank you for speaking as a Prop. 8 Proponent in exposing:

1) The real agenda of Prop. 8 is hatred of homosexuals.

2) Prop. 8 supporters are liars. In the official ballot argument (http://www.voterguide.sos.ca.gov/argu-rebut/argu-rebutt8.htm), Prop. 8 supporters specifically argued that no rights were being taken away from homosexuals and that domestic partnership laws would remain unchanged (no emphasis added):

Proposition 8 doesn’t take away any rights or benefits of gay or lesbian domestic partnerships. Under California law, “domestic partners shall have the same rights, protections, and benefits” as married spouses. (Family Code § 297.5.) There are NO exceptions. Proposition 8 WILL NOT change this.
...
Some will try to tell you that Proposition 8 takes away legal rights of gay domestic partnerships. That is false. Proposition 8 DOES NOT take away any of those rights and does not interfere with gays living the lifestyle they choose.

Other than the idiocy about "unelected" judges doing their damn job (*gasp*), thank you for speaking as a Prop. 8 Proponent in exposing:

1) The real agenda of Prop. 8 is hatred of homosexuals.

2) Prop. 8 supporters are liars. In the official ballot argument (http://www.voterguide.sos.ca.gov/argu-rebut/argu-rebutt8.htm), Prop. 8 supporters specifically argued that no rights were being taken away from homosexuals and that domestic partnership laws would remain unchanged (no emphasis added):

Proposition 8 doesn’t take away any rights or benefits of gay or lesbian domestic partnerships. Under California law, “domestic partners shall have the same rights, protections, and benefits” as married spouses. (Family Code § 297.5.) There are NO exceptions. Proposition 8 WILL NOT change this.
...
Some will try to tell you that Proposition 8 takes away legal rights of gay domestic partnerships. That is false. Proposition 8 DOES NOT take away any of those rights and does not interfere with gays living the lifestyle they choose.

Silence, you Uruk-Hai collaborator!

ha south most definitly(check out the location). I dislike yankees more than west coasters(that how you say it?). It's just that i've had bad experinces with both groups putting down southern traditions and methods. (but that is a topic for another thread)

Yeah, damn Yankees, ending the Souths long, glorious tradition of owning blacks as slaves.

I disagree if the majority find that they neither like nor support gay marriage then by "respecting the minorities rights" they are giving in to something they don't like.

Indeed. After all, why should we give blacks and whites the right to marry each other, when the majority clearly opposed that? Why should we condemn Hitler, when he was supported by a majority of Germans? Why should we regret the death of Socrates, when it was the decision of the majority that he should die? Why should women have the vote, when the majority opposed that?

You see, the will of the majority tends to be reactionary and backwards. Every major advance in civil rights has come by overruling the will of the majority, by saying that "Yes, you do not feel that these people are deserving of rights. Unfortunately, you are wrong". Indeed, the very purpose of the Bill of Rights is to make it clear that there are certain rights which are not subject to the whims of the state or the people, but which are guaranteed.

As it currently stands, the fight for gay marriage is only just starting. Instructive parallels might be drawn with the fight for interracial marriage, which literally had the same arguments, word for word, used against it: "Blacks and whites both have equal rights - they can both marry someone of their own race", "Marriage means two people of the same race", "If you let blacks and whites marry, the moral fabric of society will collapse". They were bullshit arguments then, and they are bullshit arguments now.

The majority have many powers, but one that they do not have is to take away the rights of a minority. End.

You do not appear to understand the concepts of rights or equal protection under the law.

These are not matters for popular vote.


its my understanding (i havent watched any of the proceedings) that ken starr argued just that--that the people of california decide what the rights of the people of california are and that if they wanted to throw out free speech that they could do so by this process.

did he really do that?

if he did, is it likely that the court would be persuaded by such an argument?

its my understanding (i havent watched any of the proceedings) that ken starr argued just that--that the people of california decide what the rights of the people of california are and that if they wanted to throw out free speech that they could do so by this process.

did he really do that?

if he did, is it likely that the court would be persuaded by such an argument?
Yes, it seems he really did do that.

I have no idea whether the court could conceivably ever agree with such bullshit, but if they do, I personally would not say they were persuaded by it. I would be more inclined to believe they were intimidated by the prospect of making history and are hoping the whole mess would someday get bumped up to SCOTUS or at least the CA judges who get elected after them, and thus be someone else's problem. Let's hope they care about that even less than they should care about Starr's disgraceful antics.

Really, this court has only three options and two of them would leave them branded as either cowards or idiots.

Yes, it seems he really did do that.

I have no idea whether the court could conceivably ever agree with such bullshit, but if they do, I personally would not say they were persuaded by it. I would be more inclined to believe they were intimidated by the prospect of making history and are hoping the whole mess would someday get bumped up to SCOTUS or at least the CA judges who get elected after them, and thus be someone else's problem. Let's hope they care about that even less than they should care about Starr's disgraceful antics.

Really, this court has only three options and two of them would leave them branded as either cowards or idiots.
thanks. that seems to be such an outrageous argument that the court might want to rule against prop8 just so no one would think that they agree with ken starr.

politically speaking (and ONLY politically speaking) would it be better for the court to uphold or cancel out prop 8? it seems like in retrospect that a majority of californians think that it was a bad idea. or am i just being fooled by all the liberals i see on tv?

thanks. that seems to be such an outrageous argument that the court might want to rule against prop8 just so no one would think that they agree with ken starr.

politically speaking (and ONLY politically speaking) would it be better for the court to uphold or cancel out prop 8? it seems like in retrospect that a majority of californians think that it was a bad idea. or am i just being fooled by all the liberals i see on tv?
I think recent political history has shown that the vocal minority are the biggest danger in the political waters. Politically, the judges on that court would likely be torpedoing their chances of getting reelected -- or at the very least setting themselves up for one hell of a fight next election -- if they rule that Prop 8 was invalid, because the religious right will attack them like there's no tomorrow (which many of them think there won't be).

But the idea that JUDGES sitting on a CASE before the COURT would think that way horrifies me.

its my understanding (i havent watched any of the proceedings) that ken starr argued just that--that the people of california decide what the rights of the people of california are and that if they wanted to throw out free speech that they could do so by this process.

Not necessarily. Eliminating entirely the constitutional protection for free speech is a rather more significant alteration than a comparatively minor restriction on the scope of equal protection.

That's basically the attitude both the defenders of Prop. 8 and the Attorney General have toward the amendment/revision question: while a broader and more sweeping restriction of constitutional rights (as in Raven v. Deukmejian) might be legitimately overturned on such a basis, a qualitatively and quantitatively narrow restriction like Prop. 8 is argued to be (one particular right, in one particular respect, that leaves most legal aspects of marriage intact) can't be. They have at least some precedent on their side; other restrictions on important constitutional rights have been upheld in the past.

Me, I find this whole line of reasoning puzzling. If you can restrict constitutional rights a little via amendment, then you can restrict them a lot through several amendments, and in a state where amendments can be passed by simple majority vote, that hardly ensures even the general inviolability of a constitutional right. But, then, that is perhaps a problem not with the argument itself, but with the California Constitution as it stands.

What this thread lacks much serious discussion of is the simple fact that this was not an ordinary ballot measure, but a constitutional amendment--and simply pointing to judicial review to prevent "tyranny of the majority" is just not enough. Courts don't ordinarily throw out constitutional amendments; their job is to interpret the Constitution, not to overturn it. Were this not the case, courts would be a legislative body, not an interpretative one, and the measures we take to insulate them from the whims of popular opinion really would be anti-democratic instead of principled.

The issue here is not a question of "majority rule versus minority rights" in abstract, but simply a procedural one: what is the amendment/revision distinction under the California Constitution, and on which side of that distinction does Prop. 8 fall?

(Well, unless you agree with the Attorney General that there are certain inalienable rights prescribed in the California Constitution that are beyond the scope of the amendment/revision process... but that seems fairly far-fetched to me, ignoring, among other things, that even if such natural and inalienable rights are implied in the logic of the constitutional system, we nevertheless have no guarantee that the present version of the Constitution prescribes the right version.)

its my understanding (i havent watched any of the proceedings) that ken starr argued just that--that the people of california decide what the rights of the people of california are and that if they wanted to throw out free speech that they could do so by this process.

did he really do that?

if he did, is it likely that the court would be persuaded by such an argument?

The quote I heard directly from good ol' Kenny's mouth was something about "The rights the state of California has generously provided".

How can we determine if someone has the right to a gay marriage?

Everyone has the right to be treated equally under the law. As such, if the government is going to recognize marriage at all, then it must recognize same-sex marriage.

Wouldn't the easiest solution than simply be to declare marriage a non-right?

Wouldn't the easiest solution than simply be to declare marriage a non-right?

Marriage is still an institution of the government, granting many legal rights. Even if there isn't a right to marriage per se, I'm sure one could argue that legal marriage must be available to all couples, as the government can't discriminate for reasons such as religion, race, or sexual orientation.

Of course, IANAL, so I have no idea if this would have any sort of legal chance of succeeding, but it at least seems sensible to me.

I think the problem that we keep stumbling upon is marriage. Why not simply declare marriage a privilege, no longer a right, towards heterosexual couples. Creating "civil unions" as a right instead, for the benefit of all parties not able to fulfill the requirements of marriage?

Wouldn't the easiest solution than simply be to declare marriage a non-right?

That depends on what you're trying to accomplish. If one is willing to cut off one's nose to spite one's face on this issue - ie. if keeping the gays down is more important than anything else, sure, it would be easier to get rid of government recognition of marriage altogether.

But, in truth, that would cause a whole lost more problems than it would solve.

I think the problem that we keep stumbling upon is marriage. Why not simply declare marriage a privilege, no longer a right, towards heterosexual couples. Creating "civil unions" as a right instead, for the benefit of all parties not able to fulfill the requirements of marriage?

If such a "privilege" is offered to heterosexual couples, equal protection would demand that it also be offered to homosexual couples.

Driver's licenses are privileges, but it wouldn't be permissible for a state to suddenly decide that women couldn't get them, or that gay people couldn't get them, or that black people couldn't get them.

If the law is going to offer a particular protection, it must do so equally.

That depends on what you're trying to accomplish. If one is willing to cut off one's nose to spite one's face on this issue - ie. if keeping the gays down is more important than anything else, sure, it would be easier to get rid of government recognition of marriage altogether.

But, in truth, that would cause a whole lost more problems than it would solve.


Scorched earth policy? Also for those acting out of hate, hate is not known for rationality. For those not acting out of hate, it is tough to reach a compromise if the other side is not willing to negotiate but wants full recognition. As I said, in my previous post. Wouldn't the declaration of "civil unions," as a right, with the creation of marriage as a legal privilege be an agreeable solution for all sides? One is granted all the rights associated with marriage. However it cannot legally be considered or called a marriage per se, hence each side is granted it's concessions.

If such a "privilege" is offered to heterosexual couples, equal protection would demand that it also be offered to homosexual couples.

Driver's licenses are privileges, but it wouldn't be permissible for a state to suddenly decide that women couldn't get them, or that gay people couldn't get them, or that black people couldn't get them.

If the law is going to offer a particular protection, it must do so equally.


Civil unions are offered as a sole privilege towards couples not fulfilling the criteria for marriage? Hence eachside has their said privilege which entail the same legal rights. However they only legally differ in name.

Civil unions are offered as a sole privilege towards couples not fulfilling the criteria for marriage? Hence eachside has their said privilege which entail the same legal rights. However they only legally differ in name.

Having a separate institution for some groups is not equal. It is an attempt at "separate but equal" which is, by definition, not equal.

It would, in fact, delineate two classes of citizens.

Having a separate institution for some groups is not equal. It is an attempt at "separate but equal" which is, by definition, not equal.

It would, in fact, delineate two classes of citizens.

So having separate public facilities which segregate men and women should in fact be illegal by law?

Scorched earth policy? Also for those acting out of hate, hate is not known for rationality. For those not acting out of hate, it is tough to reach a compromise if the other side is not willing to negotiate but wants full recognition. As I said, in my previous post. Wouldn't the declaration of "civil unions," as a right, with the creation of marriage as a legal privilege be an agreeable solution for all sides? One is granted all the rights associated with marriage. However it cannot legally be considered or called a marriage per se, hence each side is granted it's concessions.

First, your let's destroy the right to save it from the gays argument is properly scorned by Dem1.

Second, this issue is not written on a clean slate. Marriage is a fundamental right. The California Supreme Court has said so before and reaffirmed that holding in In re Marriage Cases.

Third, fundamental rights and equal protection under the law are not matters for compromise with those that want to hate, discriminate, and oppress.

Scorched earth policy? Also for those acting out of hate, hate is not known for rationality. For those not acting out of hate, it is tough to reach a compromise if the other side is not willing to negotiate but wants full recognition.

That's what equality means - full recognition. I think it's a good thing not to compromise when some people wish to treat you as a second-class citizen. Somehow, "Ok, I'll be a second class citizen, but only a little bit," just doesn't cut it.

As I said, in my previous post. Wouldn't the declaration of "civil unions," as a right, with the creation of marriage as a legal privilege be an agreeable solution for all sides?

No. It might work as a step in the right direction, but it would still ultimately be unequal.

One is granted all the rights associated with marriage. However it cannot legally be considered or called a marriage per se, hence each side is granted it's concessions.

Bigotry shouldn't be granted concessions in the law.

Meanwhile, no civil union has actually granted all the protections granted by marriage. It might get close, but it doesn't actually accomplish that goal.

Civil unions are offered as a sole privilege towards couples not fulfilling the criteria for marriage? Hence eachside has their said privilege which entail the same legal rights. However they only legally differ in name.

Then why must they differ at all? If marriage and civil unions are legally identical except for the name and the people who can get them, why do we need to have a difference?

First, your let's destroy the right to save it from the gays argument is properly scorned by Dem1.



I think you're self-projecting. I fail to see any trace of scorn in Dem1's post. He is above such juvenile trivialities, he seems to be debating in a proper and concise manner.

So having separate public facilities which segregate men and women should in fact be illegal by law?

Without a compelling government interest? Yes.

However, the argument has successfully been made (whether I personally agree with it or not) that the differences between men and women are large enough to warrant such separate facilities.

I think you're self-projecting. I fail to see any trace of scorn in Dem1's post. He is above such juvenile trivialities, he seems to be debating in a proper and concise manner.

(she)

Wouldn't the easiest solution than simply be to declare marriage a non-right?

To do that, you'd have to change the US Constitution, too, so there's hardly anything easy about it... and why on Earth would you want to do it anyway?

Not to mention, as UniVERSEverse has already noted, that the equal protection argument for same-sex marriage would still remain intact. "Separate but equal" isn't good enough.

its my understanding (i havent watched any of the proceedings) that ken starr argued just that--that the people of california decide what the rights of the people of california are and that if they wanted to throw out free speech that they could do so by this process.

did he really do that?

Yes, he did. More than once.

He also declared that the root of his position was that "rights are ultimately defined by the people."

if he did, is it likely that the court would be persuaded by such an argument?

I don't know. I am worried that the Court (which is predominately Republican and conservative) is not particularly likely to invalidate Proposition 8.

But, Starr's argument is rather extraordinary. Not only does it fly in the face of our nation's Founding but the notion that rights are NEVER "inalienable" contradicts the California Constitution itself. Article 1, Section 1 of the California Constitution states:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Then why must they differ at all? If marriage and civil unions are legally identical except for the name and the people who can get them, why do we need to have a difference?

Because close-minded people do and will always exist. To wish them away is naive. At some point one has to come to a reality that they exist and in some cases present a huge hurdle as a stubborn political and social force. Now whether one can forcibly act upon the wished changes by applying brute force on said bigots is a possibility. If it's the best possibility is another question. Life isn't fair, nor is it easy. If the choice is between compromise and nothing, sometimes one should learn to cut their losses and negotiate a favorable outcome if the terms are neither inhumane or draconian.

(she)

My bad. Blame ignorance.

Because close-minded people do and will always exist. To wish them away is naive. At some point one has to come to a reality that they exist and in some cases present a huge hurdle as a stubborn political and social force. Now whether one can forcibly act upon the wished changes by applying brute force on said bigots is a possibility. If it's the best possibility is another question. Life isn't fair, nor is it easy. If the choice is between compromise and nothing, sometimes one should learn to cut their losses and negotiate a favorable outcome if the terms are neither inhumane or draconian.

Why have constitutional rights or equal protection at all if one is to jetison them anytime they are not universally accepted?

Without a compelling government interest? Yes.

However, the argument has successfully been made (whether I personally agree with it or not) that the differences between men and women are large enough to warrant such separate facilities.

Such argument could not legally be made between heterosexual and homosexual differences?

Such argument could not legally be made between heterosexual and homosexual differences?

Um, no. You are attempting to re-argue In re Marriage Cases, in which the court already decided this question.