NationStates Jolt Archive

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

Which cannot be appealed or overturned?

Which cannot be appealed or overturned?

In re Marriage Cases (http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF), 43 Cal.4th 757 (2008) cannot be appealed, as it was decided by the highest court in the state.

Technically it could be overturned, by the doctrine of stare decisis would require a very good reason for so doing. What possible basis would there be for such a reversal? (Hint: you might want to actually read the majority opinion before you answer.)

EDIT: From In re Marriage Cases:

Although our state Constitution does not contain any explicit reference to a “right to marry,” past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution. (See, e.g., Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 161 (Valerie N.) [“The right to marriage and procreation are now recognized as fundamental, constitutionally protected interests. [Citations.] . . . These rights are aspects of the right of privacy which . . . is express in section 1 of article I of the California Constitution which includes among the inalienable rights possessed by all persons in this state, that of ‘privacy’ ”]; Williams v. Garcetti(1993) 5 Cal.4th 561, 577 [“we have . . . recognized that ‘[t]he concept of personal liberties and fundamental human rights entitled to protection against overbroad intrusion or regulation by government . . . extends to . . . such basic civil liberties and rights not explicitly listed in the Constitution [as] the right “to marry, establish a home and bring up children” ’ ”]; Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1303 [“under the state Constitution, the right to marry and the right of intimate association are virtually synonymous. . . . [W]e will refer to the privacy right in this case as the right to marry”]; In re Carrafa (1978) 77 Cal.App.3d 788, 791 [“[t]he right to marry is a fundamental constitutional right”].)

For those of you not in the know, California has always had a love/hate relationship with it's supreme court. The judge know they have to walk a fine line on this one, since they have to run for reelection. That's what happened to Rose Bird back in the day.

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

No more than it could be made for the difference between black and white.

There is no protection afforded by marriage that needs to be differently afforded because of any biological difference between a couple comprised of two men and one comprised of a man and a woman. These two couples find themselves in need of the exact same protections.

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.

Oh so close on the capitalisation. Most people just go for UvV.

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.

Fuck them.

When bigots opposed interracial marriage, we didn't compromise and say "Okay, interracial couples can have a civil union, which is separate but equal." We said "Tough, you don't get to deny equal rights" and legalised it. The same approach should be taken here.

If the choice was between compromise or nothing, compromise would be sensible. However, as New Mitanni has adequately demonstrated, the anti side are not willing to compromise. They want no government recognition whatsoever of homosexual unions. The choice is thus threefold - we can fight tooth and nail for full equality, we can fight tooth and nail for a reasonable 'compromise', or we can accept defeat. The third is untenable, and both the first and the second are roughly equally hard. Why should we not fight for full equality in such a case?

Yes, he did. More than once.

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



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.
do you think he really believed that or was he being lawyer-like and making the argument because its the only way he feels that prop 8 can be defended?

Oh so close on the capitalisation. Most people just go for UvV.



Fuck them.

When bigots opposed interracial marriage, we didn't compromise and say "Okay, interracial couples can have a civil union, which is separate but equal." We said "Tough, you don't get to deny equal rights" and legalised it. The same approach should be taken here.

If the choice was between compromise or nothing, compromise would be sensible. However, as New Mitanni has adequately demonstrated, the anti side are not willing to compromise. They want no government recognition whatsoever of homosexual unions. The choice is thus threefold - we can fight tooth and nail for full equality, we can fight tooth and nail for a reasonable 'compromise', or we can accept defeat. The third is untenable, and both the first and the second are roughly equally hard. Why should we not fight for full equality in such a case?


There is no strategic or even reasonable reason to not follow the first option. Tactically it is probably even the wisest choice. In a war of mutual annihilation, with the adversary party also accepting nothing but total defeat it's self-defeating and self-demeaning not to take a similar approach. Now don't mistake me. I truly do not care either way. I won't cheer if homosexual marriage is declared legal, nor will I cry if it is banned permanently. For me it is simply a nonpersonal issue that doesn't affect me. So I take a neutral approach to it. I'm merely informing myself about the issue by probing some question that intrigue me about the situation.


In re Marriage Cases, 43 Cal.4th 757 (2008) cannot be appealed, as it was decided by the highest court in the state.

Technically it could be overturned, by the doctrine of stare decisis would require a very good reason for so doing. What possible basis would there be for such a reversal? (Hint: you might want to actually read the majority opinion before you answer.)

Well that corrects my misconception about it being a viable "easy" alternative.

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

...which, if you think about it, actually sounds like that piece from Hamilton you quoted favorably earlier.

"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."

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.

Maybe in theory. In practice, the question is not "Are there inalienable rights?" but "Who is to decide what rights people have?"

If that answer is ultimately "the people"--and there's every reason to believe it is--then it makes no sense to designate any actually existing legal right as legally "inalienable." The people established it; therefore, the people can alter it also.

*snip legal beat down*

Flawless Victory!

...which, if you think about it, actually sounds like that piece from Hamilton you quoted favorably earlier.

"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."

:D

1. Very clever, but you are taking Mr. Hamilton more than a tad out of context. Among other things, Hamilton was not discussing the California Constitution, was not discussing the Bill of Rights, was not discussing the power of the people to pass laws directly through initiative, and was limiting the quoted remarks to whether the legislative branch is superior to the judicial branch.

Do you really think Hamilton or any of the Founders would have thought the U.S. Constitution could be amended by a mere majority of votes -- let alone amended to deprive a suspect class of fundamental rights?

2. The people in creating the U.S. Constitution specifically ceded power to the branches of the federal government, including the judiciary's power.

3. In the context of the California Constitution and the Prop. 8 case, the people specifically limited their power to revise the state constitution.

Maybe in theory. In practice, the question is not "Are there inalienable rights?" but "Who is to decide what rights people have?"

If that answer is ultimately "the people"--and there's every reason to believe it is--then it makes no sense to designate any actually existing legal right as legally "inalienable." The people established it; therefore, the people can alter it also.

1. So the language of Article 1, Section 1 of the California Constitution that all people have inalienable rights is simply nonsense?

2. Again, the people limited their own power to revise the California Constitution.

cats you seem educated on the matter where in the constitution does it define the difference between a revision and a amendment? All i see is article 18 defining the difference as where it originates with the people for amendments and the legislature for revisions(they can do amendments too).
Otehr then that the only difference spelled out is that a amendment be submited in such a way that it can be voted on separately.

Among other things, Hamilton was not discussing the California Constitution,

True enough. But, then:

"We, the People of the State of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this
Constitution."

was not discussing the Bill of Rights,

Also true, but so what? Is the Bill of Rights legally distinct from the rest of the Constitution? The Constitution does protect in its original form certain rights--are those somehow more weakly protected than those of the Bill of Rights?

was not discussing the power of the people to pass laws directly through initiative,

A right surely subject to judicial review, like any other legislative act, but not insofar as it constitutes a procedurally legitimate amendment to the Constitution. I don't see how it being a matter of initiative changes anything.

Do you really think Hamilton or any of the Founders would have thought the U.S. Constitution could be amended by a mere majority of votes -- let alone amended to deprive a suspect class of fundamental rights?

Of course not, considering that the US Constitution says explicitly otherwise. The California Constitution does not.

2. The people in creating the U.S. Constitution specifically ceded power to the branches of the federal government, including the judiciary's power.

The power to interpret the laws the people make, yes. Not the power to remove certain laws from the legislative realm entirely. That power makes no sense at all, because no law simply is as a matter of divine or natural will: any law is legislated.

3. In the context of the California Constitution and the Prop. 8 case, the people specifically limited their power to revise the state constitution.

Agreed. If Prop. 8 is a revision it should be overturned. This does fit perfectly well within Hamilton's scheme. I don't believe even Ken Starr has denied this.

The (separate) issue you have raised is that of "inalienable rights", and who it is that defines what those rights are. It is perfectly consistent to say (a) the people have the authority to designate what is and is not a right and (b) the people also have the authority to designate certain laws as more fundamental than others. What makes no sense is to say (a) the authority of the California Constitution rests upon popular sovereignty and (b) the people have no kind of right at all to alter certain of its provisions.

(Well, you could perhaps argue that certain rights are fundamental to popular sovereignty itself, but such an argument has no relevance here.)

1. So the language of Article 1, Section 1 of the California Constitution that all people have inalienable rights is simply nonsense?

Only if you interpret it a certain way, that is, you take it to mean, "None of these rights, to the full extent of their interpretation by the Supreme Court, are subject to alteration." The alternative interpretation is to say that they suggest a political theory of rights (just like the language of the Bill of Rights that treats the protected rights as natural ones) but do not by virtue of that fact elevate, legally speaking, any particular right to an unalterable status. All they do is prevent violations in the ordinary course of law-making.

Why? Because there is no reason for us to assume, nor any reason for the original framers to assume, that they were infallible. Sure, there may be inalienable rights, but who is to say we have the right version? After all, the list has been modified substantially over California's history.

How do you suggest the courts interpret it? Do you agree with AG Brown that the courts should subject constitutional amendments that impinge upon the rights of Article I to the same standard they do ordinary laws that do the same?

cats you seem educated on the matter where in the constitution does it define the difference between a revision and a amendment? All i see is article 18 defining the difference as where it originates with the people for amendments and the legislature for revisions(they can do amendments too).
Otehr then that the only difference spelled out is that a amendment be submited in such a way that it can be voted on separately.

Start with Loving v. Virginia

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?

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.
So your solution is to allow bigots to dictate the rules by which all of us must live? Sorry, but I choose not to deal with bullies by kowtowing to them.

Start with Loving v. Virginia

i was referring to the California Constitution and the issue the California Supreme court has. the issue is over Revision versus Amendment .

i was referring to the California Constitution and the issue the California Supreme court has. the issue is over Revision versus Amendment .

They don't seem too sure of that themselves. I think an amendment is supposed to be a clarification or addition to the constitution, whereas a revision is intended to be a change to an existing rule of the constitution. Those trying to overturn Prop 8 argue that since denying homosexuals the right to marriage was found unconstitutional under the existing rules therein, changing that would amount to a revision rather than an amendment.

They don't seem too sure of that themselves. I think an amendment is supposed to be a clarification or addition to the constitution, whereas a revision is intended to be a change to an existing rule of the constitution. Those trying to overturn Prop 8 argue that since denying homosexuals the right to marriage was found unconstitutional under the existing rules therein, changing that would amount to a revision rather than an amendment.

the California Constitution is worthless i swear. They define nothing.

don't know if i can agree with that line of argument. My understanding of amendments is that they are supposed to clarify something in the direct opposite what the court has taken.

though article 18 seems to suggest to me a amendment is something that by itself can be voted on yes or no. where as a revision is more like here is your Constitution with 25% original material.

On that not I would love to see a Loving V Virgina Scenario in SCOTUS. Though maybe wait 6 years to see if the court is more civil liberty minded.

Democracy.

Demos = people

cracy = government.
[pointless nitpick]Democracy, from δημοκρατία (dimokratia), from δήμος (dēmos), "people" and κράτος (kratos), "rule, strength".[/nitpick]
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.
He's also fucking Matt Damon behind Sarah Silverman's back.
Wouldn't the easiest solution than simply be to declare marriage a non-right?
No, the easiest solution would be to nuke Russia and destroy most of humanity. Nobody will give two fucks about gay marriage when they're all dead or dying.
Flawless Victory!

Now, when can we translate it into the Black Speech and chant in the background of all the press coverage re:Prop 8?

So your solution is to allow bigots to dictate the rules by which all of us must live? Sorry, but I choose not to deal with bullies by kowtowing to them.

You can bully me anytime you want mistress Muravyets!

Start with Loving v. Virginia

Continues to be the best case name ever.

He's also fucking Matt Damon behind Sarah Silverman's back.

Can't really blame Him. :tongue:

In the name of the seperation of church and state we should just overturn the entire concept of marriage. We can call it a civil union and make it no longer a tax exempt status; then everyone is equal and nobody can complain.

In the name of the seperation of church and state we should just overturn the entire concept of marriage.

Why would we do that? Marriage is not (only) a religious institution.

Why would we do that? Marriage is not (only) a religious institution.

Why wouldn't we let two people of the same gender have a thing called marriage?

here is an idea. outlaw marriage/civil unions until their is a child genetically tied to both parents. then force people to get married and stay married. make everyone happy. In theory gays could marry (though lack of ability to have kids makes it hard), and the relgious right would be happy because divorce is outlawed (at least until all kids are 18)

Why wouldn't we let two people of the same gender have a thing called marriage?

Why wouldn't we let two people of different races marry? Same reason: bigotry.

here is an idea. outlaw marriage/civil unions until their is a child genetically tied to both parents. then force people to get married and stay married. make everyone happy. In theory gays could marry (though lack of ability to have kids makes it hard), and the relgious right would be happy because divorce is outlawed (at least until all kids are 18)

Stupidly bad idea, and I say that as a person whose parents separated before he was 18.

Stupidly bad idea, and I say that as a person whose parents separated before he was 18.

yeah... well we aren't working out the compromise to make people who cant vote happy now are we ?

here is an idea. outlaw marriage/civil unions until their is a child genetically tied to both parents. then force people to get married and stay married. make everyone happy.

I'm told I have no sense of humor. Is this a joke?

Why wouldn't we let two people of different races marry? Same reason: bigotry.

So I say we take it away from everyone that way nobody can be special and nobody can lay claim to the moral high ground.

yeah... well we aren't working out the compromise to make people who cant vote happy now are we ?

It fails as a 'compromise' because the Religious Right won't be happy with requiring sex before marriage. It fails as a sensible idea because forcing families to stay together when it isn't working is simply inhumane. It is, in short, an idea with no redeeming features whatsoever.

It is, in short, an idea with no redeeming features whatsoever.

Like most of the ideas that law makers come up with.

cats you seem educated on the matter where in the constitution does it define the difference between a revision and a amendment? All i see is article 18 defining the difference as where it originates with the people for amendments and the legislature for revisions(they can do amendments too).
Otehr then that the only difference spelled out is that a amendment be submited in such a way that it can be voted on separately.

Article 18 defines the difference in the procedure for submitting an amendment or a revision to people for vote, but does not expressly define the difference between a revision and an amendment.

An "amendment" can be placed on the ballot for voter approval if two-thirds of each house of the legislature votes to place it on the ballot or if enough voter signatures are gathered to qualify the measure.

A "revision," by contrast, can be put on the ballot for voter consideration only if two-thirds of the houses of the legislature vote to place it (or if a legislatively-proposed state constitutional convention decides to place it on the ballot). Thus, revisions must go through a process that starts in and runs through the legislature, whereas amendments can bypass the legislature altogether and rely only on signature-gathering and voter approval.

Although some may say otherwise, the precedent of the California Supreme Court is less than definitive on the definitions of amendment and revision. The Court has only addressed the amendment versus revision question 9 times in the last 114 years of its existence.

Nonetheless, the Court has recognized the distinction between amendment and revision is crucial and has given some guidance on what it means:

The very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument shall be of a like permanent and abiding nature. On the other hand, the significance of the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.

Livermore v. Waite, 102 Cal. 113, 118-19 (1894).

In subsequent cases, the Court has said that a revision includes (but is apparently not limited to) "a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational power of its branches." Legislature v. Eu, 54 Cal.3d 492, 509 (1991).

Continues to be the best case name ever.

It's in that category of cases, with Bowers v. Hardwick and State v. Limberhand, that are almost too aptly named. But I don't think it can seriously compete with the fantastic Easter Seal Society for Crippled Children v. Playboy Enterprises.

*snip*

The power to interpret the laws the people make, yes. Not the power to remove certain laws from the legislative realm entirely. That power makes no sense at all, because no law simply is as a matter of divine or natural will: any law is legislated.

Agreed. If Prop. 8 is a revision it should be overturned. This does fit perfectly well within Hamilton's scheme. I don't believe even Ken Starr has denied this.

The (separate) issue you have raised is that of "inalienable rights", and who it is that defines what those rights are. It is perfectly consistent to say (a) the people have the authority to designate what is and is not a right and (b) the people also have the authority to designate certain laws as more fundamental than others. What makes no sense is to say (a) the authority of the California Constitution rests upon popular sovereignty and (b) the people have no kind of right at all to alter certain of its provisions.

(Well, you could perhaps argue that certain rights are fundamental to popular sovereignty itself, but such an argument has no relevance here.)

Only if you interpret it a certain way, that is, you take it to mean, "None of these rights, to the full extent of their interpretation by the Supreme Court, are subject to alteration." The alternative interpretation is to say that they suggest a political theory of rights (just like the language of the Bill of Rights that treats the protected rights as natural ones) but do not by virtue of that fact elevate, legally speaking, any particular right to an unalterable status. All they do is prevent violations in the ordinary course of law-making.

Why? Because there is no reason for us to assume, nor any reason for the original framers to assume, that they were infallible. Sure, there may be inalienable rights, but who is to say we have the right version? After all, the list has been modified substantially over California's history.

How do you suggest the courts interpret it? Do you agree with AG Brown that the courts should subject constitutional amendments that impinge upon the rights of Article I to the same standard they do ordinary laws that do the same?

What you take as a "separate" issue is anything but. At issue is whether a fundamental right may be taken from a suspect class by a mere amendment, requiring only signatures of 8 percent of the votes for all candidates for Governor at the last gubernatorial election to be placed on the ballot and approval by a bare majority thereafter.

It is entirely consistent with the fundamental principles of both the U.S. and the California Constitutions that such a change is either impermissible altogether or requires a revision. Protection of individual rights and equal protection of the laws are more than arguably fundamental to the structure or "permanent and abiding nature" of the California Constitution.

As James Madison stated, "t is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of society against the injustice of the other part." Federalist No. 51 (http://avalon.law.yale.edu/18th_century/fed51.asp). Systems that failed to protect against the tyranny of the majority, Madison recognized, "have in general been as short in their lives as they have been violent in their deaths." Federalist No. 10 (http://avalon.law.yale.edu/18th_century/fed10.asp).

Members of California's first constitutional convention also recognized these principles. As one stated, "this constitution [is] to be formed with a view to the protection of the minority .... The majority of the community is the party to be governed; the restrictions of the law are to be interposed between them and the weaker party; they are to be restrained from infringing on the rights of the minority." J. Ross Browne, [I]Report of the Debates in the Convention of California, on the Formation of the State Constitution, in September and October, 1849, 22 (Wash. 1850) (Comments of Mr. Gwin). And as another simply put it, the "object of the Constitution to protect the minority . . ." [I]Id. at 309 (Comments of Mr. Botts).

It is more than reasonable to contend that the an exception to the principle of equality is a revision to the California Constitution. The principle of equality is contained in numberous provisions of the California Constitution. One of the petitioner's in this case sumnmarized the principle as follows: if the government is to impose disabilities upon its citizens, it must do so upon them as a whole, not just upon a disfavored group. A modern-day expression of this principle comes from U.S. Supreme Court Justice Scalia, who emphasized that our system "requires the democratic majority to accept for themselves and their loved ones what they impose on you and me." Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 300 (1990) (Scalia, J., concurring.)

Especially strong is the argument that an exception to the equality principle is a revision when it threatens to take a fundamental right away from a historically marginalized group (or "suspect class"). One reason for this is because the majoritarian political process is far less apt to protect them. "[A] special mandate" compels the judiciary to give such groups heightened consitutional protection, because "'[p]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political process ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.'" Purdy & Fitzpatrick v. State, 71 Cal. 2d 566, 579 (1969) (quoting United States v. Carolene Products Co., 304 U.S. 144, 153 & n.4 (1938)).

It is entirely consistent with constitutional principles to say that it is the role of the judiciary to protect the equality principle and inalienable rights. Hamilton himself explained that "the independence of judges" is "an essential safeguard against the effects of occasional ill humors in the society" and against "injury of the private rights of particular classes of citizens, un unjust and partial laws." Federalist No. 78 (http://avalon.law.yale.edu/18th_century/fed78.asp). He further stated:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

Id. Accordingly, the California Supreme Court has explained that central to our democracy is "the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority." Bixby v. Pierno, 4 Cal. 3d 130, 141 (1971).

Nor is it as ridiculous as you seem to assume that the amendment process cannot take away individual rights. As I noted, the California Constitution expressly refers to certain rights as inalienable. As the U.S. Supreme Court said in my earlier quote from West Virginia v. Barnette, 319 U.S. 624, 638 (1943), "[t]he 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. ... [F]undamental rights may not be submitted to vote; they depend on the outcome of no elections." In this regard, one delegate to the 1849 California Constitutional Convention expressed the following understand of the compact:

What says your bill of rights? It says in the first place that people are sovereigns. It then goes on to specificy certain inalienable rights, and to provide that those rights shall not be infringed upon. The people agree, by adopting the Constitution, that so long as they are members of the community, they will not infringe on those special rights; but they reserve control over all others not restricted by the Constitution.

Browne, Report of Debates at p. 53 (remarks of Mr. Semple).

In this context, Mr. Starr's remarks about how rights are defined by the majority and equal protection is subject to majority whim are, as I said, extraordinary and highly objectionable.

(Note: much of the above is pieced together from various briefs of the parties in the Prop. 8 cases)

Article 18 defines the difference in the procedure for submitting an amendment or a revision to people for vote, but does not expressly define the difference between a revision and an amendment.

An "amendment" can be placed on the ballot for voter approval if two-thirds of each house of the legislature votes to place it on the ballot or if enough voter signatures are gathered to qualify the measure.

A "revision," by contrast, can be put on the ballot for voter consideration only if two-thirds of the houses of the legislature vote to place it (or if a legislatively-proposed state constitutional convention decides to place it on the ballot). Thus, revisions must go through a process that starts in and runs through the legislature, whereas amendments can bypass the legislature altogether and rely only on signature-gathering and voter approval.

Although some may say otherwise, the precedent of the California Supreme Court is less than definitive on the definitions of amendment and revision. The Court has only addressed the amendment versus revision question 9 times in the last 114 years of its existence.

Nonetheless, the Court has recognized the distinction between amendment and revision is crucial and has given some guidance on what it means:

The very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument shall be of a like permanent and abiding nature. On the other hand, the significance of the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.

Livermore v. Waite, 102 Cal. 113, 118-19 (1894).

In subsequent cases, the Court has said that a revision includes (but is apparently not limited to) "a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational power of its branches." Legislature v. Eu, 54 Cal.3d 492, 509 (1991).

seems interesting I would have to read the case law. 9 court rulings you say? you don't happen to know the names of the other 8.

I don't know if the permanency argument would counter the built in means for change in the Constitution. Historically late 19th century early 20th century Californians distrusted government and may have intended this Constitution to always give the people a trump card over bureaucracy.

and i don't know how many times I will say this. the Constitution of California is a poorly written document. but what do you expect for a Constitution written by retired miners likely surfing from brain damage from mercury.

What you take as a "separate" issue is anything but. At issue is whether a fundamental right may be taken from a suspect class by a mere amendment, requiring only signatures of 8 percent of the votes for all candidates for Governor at the last gubernatorial election to be placed on the ballot and approval by a bare majority thereafter.

<snip for length>

In this context, Mr. Starr's remarks about how rights are defined by the majority and equal protection is subject to majority whim are, as I said, extraordinary and highly objectionable.

(Note: much of the above is pieced together from various briefs of the parties in the Prop. 8 cases)
Brilliant summation of the heart of the issue. Thank you. :fluffle:

*snip*

Not convincing.

Are constitutional rights intended to restrain the vicissitudes of majority rule? Yes, obviously. No one disputes this. Not even Ken Starr.

Does this mean that constitutional amendments can be overturned because they impinge on a minority's existing constitutional rights? No, it does not. This is the basic flaw in the argument of the challengers: they erase the distinction between an ordinary ballot initiative and a constitutional amendment.

But that is not even my point. I'm at least sympathetic to, though not really in agreement with, the argument that the revision/amendment distinction should be used to properly safeguard the constitutional rights most endangered by pure majority rule. What I find ridiculous is the claim that some appeal to "natural" or "inalienable" rights can be used to insulate constitutional rights from alteration, and, in line with that, the self-righteous indignation of some toward the notion that rights are something that, ultimately, we democratically decide upon.

All the counter-majoritarian elements of both the US and the California Constitutions were enacted and approved by the people. It makes no sense to say that rights that were enacted through the authority of the people suddenly are beyond that very authority. You still refuse to address this point--perhaps because you conflate "the people" with "the majority in the ordinary course of politics", as I do not and, perhaps, Ken Starr does not either.

It is not by any means reasonable to assume an infallibility on the part of the constitutional framers that no legislative procedure today can contest.

Not convincing.

Are constitutional rights intended to restrain the vicissitudes of majority rule? Yes, obviously. No one disputes this. Not even Ken Starr.

Does this mean that constitutional amendments can be overturned because they impinge on a minority's existing constitutional rights? No, it does not. This is the basic flaw in the argument of the challengers: they erase the distinction between an ordinary ballot initiative and a constitutional amendment.

But that is not even my point. I'm at least sympathetic to, though not really in agreement with, the argument that the revision/amendment distinction should be used to properly safeguard the constitutional rights most endangered by pure majority rule. What I find ridiculous is the claim that some appeal to "natural" or "inalienable" rights can be used to insulate constitutional rights from alteration, and, in line with that, the self-righteous indignation of some toward the notion that rights are something that, ultimately, we democratically decide upon.

All the counter-majoritarian elements of both the US and the California Constitutions were enacted and approved by the people. It makes no sense to say that rights that were enacted through the authority of the people suddenly are beyond that very authority. You still refuse to address this point--perhaps because you conflate "the people" with "the majority in the ordinary course of politics", as I do not and, perhaps, Ken Starr does not either.

It is not by any means reasonable to assume an infallibility on the part of the constitutional framers that no legislative procedure today can contest.

Not convincing.

You insist on framing the question as some theoretical exercise in whether rights come from natural law. Although that is fully and reasonably arguable, given that that was the understanding of our nation's and California's founders and the language of the California Constitution expressly says certain rights are inalienable, that isn't the point I am addressing nor is it the argument of the challengers of Proposition 8.

The argument of most of the challengers to Proposition 8 is that the taking away of fundamental rights from a suspect class is a revision. They are not saying "no legislative procedure" can change the California Constitution, but rather that the appropriate legislative procedure required by the Cal. Constitution itself was not followed here.

The argument of the Attorney General is that amendments by initiative that violate fundamental rights are subject to the same strict scrutiny as any other legislative impigenment on fundamental rights. Again, this is not to put rights beyond the reach of any legislative procedure, but does require a compelling state interest and narrow tailoring towards that interest.

You appear to be allying yourself with Ken Starr on the point that the "will of the people" to fundamentally change the state constitution requires little more than a few initiative signatures and a mere majority vote. Other than conceding the one or two specific instances when the Court has said an initiative was a revision, Mr. Starr does not appear to believe that any act of the people must meet the procedural requirements of a revision.

If rights are fundamental and inalienable and a major purpose of a constitution is to protect minorities, surely taking such rights away from a suspect class is a fundamental change in the governmental framework. Thus, it is a revision.

Ken Starr's particular argument is shocking because he appears to be saying that any non-quantitative change in the Cal. Constitution can be made by mere amendment. The very rights articulated as "inalienable" can, in fact, be abolished by mere majority whim. Equal protection can be denied a suspect class by a mere majority. No special procedure or hurdles are required. Thus, not only are such matters not protected from all legislative process, they are not protected from the simplest and least reflective legislative process!

They are not saying "no legislative procedure" can change the California Constitution,

Right. Have I ever denied that?

The argument of the Attorney General is that amendments by initiative that violate fundamental rights are subject to the same strict scrutiny as any other legislative impigenment on fundamental rights. Again, this is not to put rights beyond the reach of any legislative procedure, but does require a compelling state interest and narrow tailoring towards that interest.

No constitutional right is absolute in that any constitutional right can be bypassed if the infringement passes strict scrutiny. That does not address the question of whether or not the constitutional right itself can be modified or repealed via a legislative procedure.

You appear to be allying yourself with Ken Starr on the point that the "will of the people" to fundamentally change the state constitution requires little more than a few initiative signatures and a mere majority vote.

No, I certainly have said nothing of the sort, and I'm fairly sure Ken Starr hasn't either.

Other than conceding the one or two specific instances when the Court has said an initiative was a revision, Mr. Starr does not appear to believe that any act of the people must meet the procedural requirements of a revision.

So Ken Starr does not believe that "any act of the people must meet the procedural requirements of a revision"... except when he does?

I suggest that you are really advancing a false dichotomy: either it is your standard or none at all.

If rights are fundamental and inalienable and a major purpose of a constitution is to protect minorities, surely taking such rights away from a suspect class is a fundamental change in the governmental framework.

No.

To say, "The Supreme Court may no longer protect minority rights in its decisions" would be such a "fundamental change." To say "Rights may now be repealed by the legislature" would be such a "fundamental change." Both of those would impact the two fundamental features you have outlined.

To narrowly alter the list of rights the Constitution protects does not. It does not abolish the broad rule of the Constitution as the guarantor of minority rights and does not infringe upon the status of constitutional rights as fundamentally binding (which is not the same as to say unalterable). Indeed, it has happened before, more than once, and been upheld.

Ken Starr's particular argument is shocking because he appears to be saying that any non-quantitative change in the Cal. Constitution can be made by mere amendment. The very rights articulated as "inalienable" can, in fact, be abolished by mere majority whim. Equal protection can be denied a suspect class by a mere majority. No special procedure or hurdles are required.

Ignoring the already-addressed issue of narrowness, the "special procedure" required is that of the constitutional amendment process itself, which is distinct from the ordinary ballot initiative process. Prop. 22 was not enough; they needed Prop. 8.

Nor, apparently, is this protection insignificant or meaningless, considering the number of people who declare themselves opposed to same-sex marriage yet nevertheless opposed to "writing discrimination into the Constitution" and such things, or the high-profile status of the recent amendment battle, or the decided shift in public opinion from Prop. 22 to Prop. 8.

We have gotten somewhat away from the direction of my original point, but I'm still curious: do you think (legal) rights are or are not "ultimately defined by the people"? If not, where do they come from, and what is the source of their legal authority? For all your outrage toward Ken Starr's statement of that position, it is interesting that, when challenged, your inclination is repeatedly to bring the matter back to the narrower (and less interesting) amendment/revision question.

I'm sorry for annoying you so. Seriously. And I'm even sorrier for defending Ken Starr.

I'm just tired of the thoughtless, knee-jerk reasoning about this that seems to pervade so much of the anti-Prop. 8 crowd (of which I am most certainly a part), to the point of pretending that this question really is clear-cut in favor of overturning it, and any argument otherwise must clearly be indicative of a fundamental failure to understand the basic constitutional structure of California and the United States. It's not politically or intellectually healthy.

And if you're inclined to accuse me of constructing straw men (though would you, considering how close you have come to advancing that very position?), you should read this thread.

In the name of the seperation of church and state we should just overturn the entire concept of marriage.

I don't really see how that would uphold separation of church and state. If anything, it would be the state ceding power to the church.

We can call it a civil union and make it no longer a tax exempt status; then everyone is equal and nobody can complain.

Since when has marriage afforded tax exempt status?

In the name of the seperation of church and state we should just overturn the entire concept of marriage.

Errr....what?

We can call it a civil union and make it no longer a tax exempt status; then everyone is equal and nobody can complain.

Marriage is tax exempt? Could you tell the IRS that as they always seem to want taxes out of me.

I'm sorry for annoying you so. Seriously. And I'm even sorrier for defending Ken Starr.

I'm just tired of the thoughtless, knee-jerk reasoning about this that seems to pervade so much of the anti-Prop. 8 crowd (of which I am most certainly a part), to the point of pretending that this question really is clear-cut in favor of overturning it, and any argument otherwise must clearly be indicative of a fundamental failure to understand the basic constitutional structure of California and the United States. It's not politically or intellectually healthy.

And if you're inclined to accuse me of constructing straw men (though would you, considering how close you have come to advancing that very position?), you should read this thread.

I'll get back to our substantive discussion later, but I wanted to respond to this.

Having my arguments challenged by someone of your knowledge and intellect can be frustrating, but is ultimately exhilarating, fun, and educational.

I hope that I have made clear that, though I believe Prop. 8 is an invalid revision and/or invalid on other grounds, it is unlikely that the California Supreme Court will say so. Moreover, it is not as clear-cut an issue as either side likes to think.

I will say that listening to Ken Starr's arguments as to why Prop. 8 is valid provided perhaps the most persuasive case as to why Prop. 8 isn't valid. :wink:

seems interesting I would have to read the case law. 9 court rulings you say? you don't happen to know the names of the other 8.

For some reason, I can't put my finger on all 9 cases, but I believe these are 8 of them:

Legislature v. Eu, 54 Cal.3d 492 (1991)
Raven v. Deukmejian, 52 Cal.3d 336 (1990)
In re Lance W, 37 Cal.3d 873 (1985)
Brosnahan v. Brown, 32 Cal.3d 236 (1982)
People v. Frierson, 25 Cal.3d 142 (1979)
Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 22 Cal.3d 208 (1978)
McFadden v. Jordan, 32 Cal.2d 330 (1948)
Livermore v. Waite, 102 Cal. 113 (1894)

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.
America has a long and proud tradition of forcing peevish majorities to shut the fuck up and get over themselves.

America has a long and proud tradition of forcing peevish majorities to shut the fuck up and get over themselves.

...eventually.

America has a long and proud tradition of forcing peevish majorities to shut the fuck up and get over themselves.

Damn right.

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.

Yet we ban marriage between brothers and sisters do we not? We ban marriage between first cousins. We also ban marriage between, say, a 45 year old and a ten year old. So you would be wrong to say that marriage between gay people are the only marriages banned in the USA.

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

Words change.Are you sure about that? I always thought you could marry anyone you wanted, as long as they are the opposite gender. Of course that leaves in limbo persons who are hermophrodites. If marriage can only be one man and one woman, what do we do with the people who have physical characteristics of the two majority genders? ( I think Herms. compose a third gender)

Yet we ban marriage between brothers and sisters do we not? We ban marriage between first cousins. We also ban marriage between, say, a 45 year old and a ten year old. So you would be wrong to say that marriage between gay people are the only marriages banned in the USA.

You're right; it's not. But equality under law doesn't mean identical treatment for everyone. It means equal treatment except when there is some good reason to make a distinction.

What reason is there to prohibit same-sex marriage?

Are you sure about that? I always thought you could marry anyone you wanted, as long as they are the opposite gender.

Now, yes. Fifty years ago, no.

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.

Not to mention that the one thing lost here in the debate that even if the CSC overturns Prop 8 by some miracle, gay marriage is still illegal on the federal level. The Federal Government does not accept gay marriage. Hence, an overturning of Prop 8 will only get you state benefits. It won't get you federal benefits. For example, you can file jointly your state tax return, but on your federal you will still be legally required to file seperately. Also, federal agencies don't give benefits to people in gay marriages that they give to people in hetero marriages.

I believe the Courts themselves have ruled that the Feds have no obligation to honor gay marriages that are done in any of the 50 states.

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.

Only the people have the power to amend the state constitution. The courts do not have that power. Not only do state courts lack that power, but so do the federal courts. Hence, the California SC cannot change the constitution by nullifying Prop 8. And that looks like what their decision will be in 3 months. Yes, the Supreme Court can make rulings. But the people can, carte blanche, overturn that ruling by changing the constitution.

The federal courts have never declared that gays have a right to marriage.

The federal courts have never declared that gays have a right to marriage.
They never declared they didn't, either.

But you know what they did do? They did declare that the ability to marry the person of one's choice is a fundamental human liberty. They did that in Loving v. Virginia. So unless you are going to argue that gays are not human, then they should be granted the right to marry.

Are you arguing that gays are not human?

They never declared they didn't, either.

But you know what they did do? They did declare that the ability to marry the person of one's choice is a fundamental human liberty. They did that in Loving v. Virginia. So unless you are going to argue that gays are not human, then they should be granted the right to marry.

Are you arguing that gays are not human?

Ouch.

Hence, the California SC cannot change the constitution by nullifying Prop 8.

Nullifying Prop. 8 would not change the Constitution, it would (so the argument goes) enforce the Constitution by requiring that constitutional revisions undergo the proper procedure.

If Prop. 8 is a revision and not an amendment, then it was passed illegitimately and never actually changed the Constitution.

Yes, the Supreme Court can make rulings. But the people can, carte blanche, overturn that ruling by changing the constitution.

It's not "carte blanche" in California--not, in any case, as long as we are speaking of amendments rather than revisions. Under the California Constitution, there are limits to what a constitutional amendment can do; those challenging Prop. 8 argue that those limits have been violated.

The federal courts have never declared that gays have a right to marriage.

So? The federal courts have never declared that I, Soheran, have a right to marriage either... but they have said that people in general have a right to marriage.

Only the people have the power to amend the state constitution. The courts do not have that power. Not only do state courts lack that power, but so do the federal courts. Hence, the California SC cannot change the constitution by nullifying Prop 8. And that looks like what their decision will be in 3 months. Yes, the Supreme Court can make rulings. But the people can, carte blanche, overturn that ruling by changing the constitution.

here is how i take the issue.
Is prop 8 a valid amendment or is it a revision?

A strict view of the Constitution is that it is a valid amendment because it is only one issue that was vote able yes or no.

The more interpretive view is that because it fundamentally altering rights it would require a revision.

both views have merit and I suspect the court to be closely split in this decision. I tend to favor the earlier view because i find the courts to be grabbing more and more power via interpretation disturbing.

Yet we ban marriage between brothers and sisters do we not? We ban marriage between first cousins. We also ban marriage between, say, a 45 year old and a ten year old. So you would be wrong to say that marriage between gay people are the only marriages banned in the USA.
Incest is a cause of personal and social harm. Gayness is not.

Children younger than the age of majority cannot give informed consent to binding commitments, therefore marrying them causes personal and social harm. Gayness =/= childhood.

Therefore, your examples are irrelevant.

Also, it is obvious that you are attempting to compare gayness to incest and pedophilia. That exhibits your bigotry against gays and invalidates your arguments on the grounds of excessive bias.

Nullifying Prop. 8 would not change the Constitution, it would (so the argument goes) enforce the Constitution by requiring that constitutional revisions undergo the proper procedure.

If Prop. 8 is a revision and not an amendment, then it was passed illegitimately and never actually changed the Constitution.

It's not "carte blanche" in California--not, in any case, as long as we are speaking of amendments rather than revisions. Under the California Constitution, there are limits to what a constitutional amendment can do; those challenging Prop. 8 argue that those limits have been violated.

So? The federal courts have never declared that I, Soheran, have a right to marriage either... but they have said that people in general have a right to marriage.

^ This. ^

Well put. It seems that Prop 8, if it had the legs to stand on, it wouldn't need to stand the judicial test. The fact that it's in court suggest that there is an issue with the construction of the amendment.

here is how i take the issue.
Is prop 8 a valid amendment or is it a revision?

A strict view of the Constitution is that it is a valid amendment because it is only one issue that was vote able yes or no.

The more interpretive view is that because it fundamentally altering rights it would require a revision.

both views have merit and I suspect the court to be closely split in this decision. I tend to favor the earlier view because i find the courts to be grabbing more and more power via interpretation disturbing.

^ This as well. ^

While I agree with your points, the courts are there to interpret the law. Even if it appears to be power grabbing. In essence, the common law system relies heavily on the courts to interpret and apply the law. For courts, such as the SC of Cali to opt for power grabbing, it is their job.

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.

There's a lot of things that people don't like. For example, you might not like that a complete stranger takes your picture while you are walking down the street or at the park with your kids. Unfortunately for you though, they have the right to do so because it's in the Constitution.

It not about minority rights vs majority rights. This is a matter of Constitutional rule of law. As stated by the Court themselves, one of the questions they are confronting is this: Does the California Supreme Court have the power to unilaterally change the Constitution by repealing an amendment to it?
Clearly, a revision is composed of changes to the governing system, such as the powers of the legislature or the executive branch. An amendment deals with rights. And, as the court has stated in its questioning, the people have used the amendment process to eliminate rights before. There is nothing new here. This is not the first time the people of California have eliminated a supposed right.

Are you sure about that? I always thought you could marry anyone you wanted, as long as they are the opposite gender. Of course that leaves in limbo persons who are hermophrodites. If marriage can only be one man and one woman, what do we do with the people who have physical characteristics of the two majority genders? ( I think Herms. compose a third gender)

I am 100% sure about that.

http://en.wikipedia.org/wiki/Anti-miscegenation_laws#United_States

From the 19th century into the 1950s, most US states enforced anti-miscegenation laws. From 1913 to 1948, 30 out of the then 48 states did so. In 1967, the United States Supreme Court unanimously ruled in Loving v. Virginia that anti-miscegenation laws are unconstitutional. With this ruling, these laws were no longer in effect in the remaining 16 states that at the time still enforced them.

Nineteen hundred and sixty-seven. 42 years ago, it was still against the law in 16 states for a white person to marry a black person.

Words change.

While I agree with your points, the courts are there to interpret the law. Even if it appears to be power grabbing. In essence, the common law system relies heavily on the courts to interpret and apply the law. For courts, such as the SC of Cali to opt for power grabbing, it is their job.

If it were a law i would agree, and would encourage the ruling. I am not familiar with the precedent on striking down an amendment. I tend to favor a strict interpretation for such cases as the amendment system is check on the courts power.

given California has a crappy system for implementation but oh well.

There's a lot of things that people don't like. For example, you might not like that a complete stranger takes your picture while you are walking down the street or at the park with your kids. Unfortunately for you though, they have the right to do so because it's in the Constitution.

California's Constitution must be really long to go into so much detail! :eek:

California's Constitution must be really long to go into so much detail! :eek:

110 pages not counting amendments

There's a lot of things that people don't like. For example, you might not like that a complete stranger takes your picture while you are walking down the street or at the park with your kids. Unfortunately for you though, they have the right to do so because it's in the Constitution.

It not about minority rights vs majority rights. This is a matter of Constitutional rule of law. As stated by the Court themselves, one of the questions they are confronting is this: Does the California Supreme Court have the power to unilaterally change the Constitution by repealing an amendment to it?
Clearly, a revision is composed of changes to the governing system, such as the powers of the legislature or the executive branch. An amendment deals with rights. And, as the court has stated in its questioning, the people have used the amendment process to eliminate rights before. There is nothing new here. This is not the first time the people of California have eliminated a supposed right.
So...the fact that they have done wrong in the past means that they should be permitted to continuing doing wrong?

Only the people have the power to amend the state constitution. The courts do not have that power. Not only do state courts lack that power, but so do the federal courts. Hence, the California SC cannot change the constitution by nullifying Prop 8. And that looks like what their decision will be in 3 months. Yes, the Supreme Court can make rulings. But the people can, carte blanche, overturn that ruling by changing the constitution.

For someone that claims to understand the issues before the California Supreme Court and to have the ability to predict the Court's decision in advance, you seem woefully ignorant of what is actually going on.

The people have the power to amend or revise the state constitution, but there are certain procedures that must be followed to do so. One issue before the Court is whether Prop. 8 constitutes a revision, because if it does, it was not properly enacted. Another issue is whether Prop. 8 is so fundamentally inconsistent with other provisions of the state constitution that it cannot stand.

It not about minority rights vs majority rights. This is a matter of Constitutional rule of law. As stated by the Court themselves, one of the questions they are confronting is this: Does the California Supreme Court have the power to unilaterally change the Constitution by repealing an amendment to it?

The Court has never stated that that is one of the questions they are confronting. I don't know from where you are getting this garbage.

Clearly, a revision is composed of changes to the governing system, such as the powers of the legislature or the executive branch. An amendment deals with rights. And, as the court has stated in its questioning, the people have used the amendment process to eliminate rights before. There is nothing new here. This is not the first time the people of California have eliminated a supposed right.

Even Ken Starr acknowledged this case is unique in that it involves taking a fundamental right from a suspect class. So this is new. If you have actually seen the oral argument, you would know this.

But, out of curiosity, when have the people previously amended the constitution to eliminate a fundamental right and/or deny equal protection under the law?

They never declared they didn't, either.

But you know what they did do? They did declare that the ability to marry the person of one's choice is a fundamental human liberty. They did that in Loving v. Virginia. So unless you are going to argue that gays are not human, then they should be granted the right to marry.

Are you arguing that gays are not human?

Fair enough.
Nope I am not arguing that. Just noting that the courts have never required federal agencies to accept gay marriages as valid. There are no federal agencies in any of the federal branches that accept the validity of gay marriage. Seems to me, the federal courts are not inclined to force them to do so.
When marijuana became acceptable for medical purposes in the state of California guess what. It remained illegal on the federal level.
When the federal courts said marriage was a right, they never defined what marriage was. In common vernacular, marriage is between a man and a woman. Not that I agree with that. You should be allowed to do what you want, within the limits of the law. If you don't like the law or, in this case, you don't like what an amendment to the Consitution does, you don't just ignore it, you change it. Only the people can change the state's constitution. The Supreme Court does not have that power. They can overturn regular initiative laws but they cannot overturn Constitutional amendments. Even the Feds are going to be extremely wary of overturning Prop 8.

I believe the Courts themselves have ruled that the Feds have no obligation to honor gay marriages that are done in any of the 50 states.

And I believe you are wrong. Feel free to cite the relevant case.

The federal courts have never declared that gays have a right to marriage.

First, this isn't really relevant because the California Supreme Court has decleared that gays and lesbians have a right to marriage.

Second, the federal courts have never declared that same-sex couples don't have a right to marriage.

Third, it follows logically from prior cases such that same-sex couples have a right to marriage. Both the U.S. Constitution and the California Constitution protect a fundamental right to marry. See, e.g., Loving v. Virginia (http://laws.findlaw.com/us/388/1.html), 388 U.S. 1 (1967); In re Marriage Cases (http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF), 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 (2008) (pdf); Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (1948). Both the U.S. Constitution and the California Constitution guarantee equal protection under the law and fundamental liberty to all persons -- including homosexuals. See, e.g., Lawrence v. Texas (http://laws.findlaw.com/us/000/02-102.html), 539 U.S. 558 (2003); Romer v. Evans (http://laws.findlaw.com/us/000/u10179.html), 517 U.S. 620 (1996); In re Marriage Cases, supra.

here is how i take the issue.
Is prop 8 a valid amendment or is it a revision?

A strict view of the Constitution is that it is a valid amendment because it is only one issue that was vote able yes or no.

The more interpretive view is that because it fundamentally altering rights it would require a revision.

both views have merit and I suspect the court to be closely split in this decision. I tend to favor the earlier view because i find the courts to be grabbing more and more power via interpretation disturbing.

THe problem in California is the constitution. It was written by under educated bigots in the mid 19th century, revised by more bigots at the beginning of the 20th, and has caused our state's current economic crises in addition to being at the heart of the gay marriage debate. Article 9 clearly states that the state is only obligated to pay school teachers $2,000 a year for example. In addition, the same article says that the state only has to give each school district $2,000 a year. That's enough for one school teacher at 19th century living standards. It does not account for inflation. Also, all the public employee pensions can't be just changed, because they too, by initiative statute, are part of the state constitution. All of our mandatory spending is mandatory because they are mandated by the amendments the people added to the constitution over the last 20 to 30 years. That is why California has in the past, been forced to declare bankruptcy. That is why we can't pass a budget and why some of our schools are having to close. When the voters changed the constitution to mandate spending, they failed to state where the money would come from. It's like people voted for the money to come from the imaginary fairy trees and we are currently reaping the consequences.
The whole document needs to be scrapped and replaced.

I am 100% sure about that.

http://en.wikipedia.org/wiki/Anti-miscegenation_laws#United_States



Nineteen hundred and sixty-seven. 42 years ago, it was still against the law in 16 states for a white person to marry a black person.

Words change.

The difference is that I am not aware of any state passing constitutional amendments to undo the courts' decisions on that matter. In the case of gay marriage, the state did pass an amendment to overturn the court's decision.

There were no constitutional amendments that said blacks could not marry whites. It was all statutory law, not constitutional law.

you say uneducated bigots I say drunk retired gold miners.

the Constitution of California is crazy, and they need a new one.

California's Constitution must be really long to go into so much detail! :eek:

approximately 110 and a half pages. it is the second longest constitution in the US.

The difference is that I am not aware of any state passing constitutional amendments to undo the courts' decisions on that matter. In the case of gay marriage, the state did pass an amendment to overturn the court's decision.

There were no constitutional amendments that said blacks could not marry whites. It was all statutory law, not constitutional law.

even so SCOTUS can rule a state constitutional amendment unconstitutional(with the federal Constitution).

There were no constitutional amendments that said blacks could not marry whites. It was all statutory law, not constitutional law.

http://en.wikipedia.org/wiki/Pace_v._Alabama

Supreme Court decision is constitutional law.

110 pages not counting amendments

actually the amendments are written directly into the constitution itself. There is no seperate section for amendments. For example, Prop 8 merely edits Section 1 or whatever section it was written into. It does not add anything to the end of the document. All amendments are written this way. That is how the document became so long. Also, it skips entire sections which were removed by a secret committee back in the 60's or 70's that was appointed by the Govenor and Legislature.
Not to mention, the power it gives to corporations.

actually the amendments are written directly into the constitution itself. There is no seperate section for amendments. For example, Prop 8 merely edits Section 1 or whatever section it was written into. It does not add anything to the end of the document. All amendments are written this way. That is how the document became so long. Also, it skips entire sections which were removed by a secret committee back in the 60's or 70's that was appointed by the Govenor and Legislature.
Not to mention, the power it gives to corporations.

i was mostly being tongue in cheek.

So...the fact that they have done wrong in the past means that they should be permitted to continuing doing wrong?

As long as the constitution allows them to do it, yes. There is nothing the courts can do. Your only option is to put a counter amendment on the ballot and hope it passes.

you say uneducated bigots I say drunk retired gold miners.

the Constitution of California is crazy, and they need a new one.

Actually I think everyone will agree on that. I am on a committee that is working on a new constitution. and I know that there is a group of corporate execs who are also working on a new state constitution. The difference being that theirs is intended to give most of the power to multinational corporations where as ours is intended to bring California into the 20th century and includes an extended bill of rights that does include defining marrage rights to include both gay marriage and polygamous marriage. Though the latter will be restricted to people who have a minimum of a Bachelor's degree and who are over 21. For the first time, there will be a children's bill of rights written directly into the state constitution as well as a bill of Native American rights.
We are eliminating the state pension requirements and the entire department of the Comptroller. His duties would be shifted to the State Treasurer's office since the two have similar duties to begin with.
We are in contact with certain members of the legislature. The problem is we have to leave some areas untouched so they can have something to play with.
It's a long and tedious process. We hoped to be finished by now but the fact that we are not, says a lot about how difficult it is merely to draft an alternative. The events that immediately happend after the passage of Prop 8caused me to think that we were wrong to include gay marriage. Maybe gays are proving they are not ready for marriage rights. But I was also advised to wait and give them time to prove themselves.
I just know that little amendments to the current one, are not going to fix the problem in the long term.

It will take a new one.

Right. Have I ever denied that?

I certainly thought you were denying that in the quote to which I responded, particularly the bolded part.

No constitutional right is absolute in that any constitutional right can be bypassed if the infringement passes strict scrutiny. That does not address the question of whether or not the constitutional right itself can be modified or repealed via a legislative procedure.

You seem to be either misunderstanding or avoiding the AG's position (which I admit is not one I find wholly persuasive). The California Constitution makes clear that the initiative power is simply part of the legislative power that is retained by the people. The AG's position is that any legislation (whethier it be an initiative, a statute, or a constitutional amendment) that infringes a fundamental right must be subject to strict scrutiny. The argument is that the initiative-amendment power is not wholly unfettered by the California Constitution's protection of inalienable rights to life, liberty, and privacy.


No, I certainly have said nothing of the sort, and I'm fairly sure Ken Starr hasn't either.

Both of you appear to believe that fundamental rights and/or the equality principle can be eviscerated by a mere amendment by iniative. Thus, my statement stands.


So Ken Starr does not believe that "any act of the people must meet the procedural requirements of a revision"... except when he does?

I suggest that you are really advancing a false dichotomy: either it is your standard or none at all.

What standard of revision vs. amendment do you defend?

Starr didn't seem to be able to think of any hypothetical situations that would require a revision instead of an amendment. He only grudgingly acknolwedged that the amendment in Raven was invalid, because he was faced with a majority opinion so holding.

To say, "The Supreme Court may no longer protect minority rights in its decisions" would be such a "fundamental change." To say "Rights may now be repealed by the legislature" would be such a "fundamental change." Both of those would impact the two fundamental features you have outlined.

To narrowly alter the list of rights the Constitution protects does not. It does not abolish the broad rule of the Constitution as the guarantor of minority rights and does not infringe upon the status of constitutional rights as fundamentally binding (which is not the same as to say unalterable).

First, you are ignoring the specific argument made by myself and most of the petitioners that depriving a suspect class of a fundamental right is a fundamental change in the California Constitution. Among other things, I would agree with Therese Stewart, San Francisco chief deputy city attorney, that "[a] guarantee of equality that is subject to exceptions by the majority is no guarantee at all."

Second, Starr did not limit himself to defense of "narrow alter[ations" of the rights protected by the Cal. Constitution. His argument appears to assume that any and all rights protected by the Cal. Constitution may be revoked by mere amendment.

Indeed, it has happened before, more than once, and been upheld.

Really? When?


Ignoring the already-addressed issue of narrowness, the "special procedure" required is that of the constitutional amendment process itself, which is distinct from the ordinary ballot initiative process. Prop. 22 was not enough; they needed Prop. 8.

This assumes that Prop. 8 is validly a mere amendment and not a revision.

Moreover, the only "special procedure" is required for a constitutional amendment by initiative that is not required for an initiative is the number of signatures required to get the measure on the ballot. A constitutional amendment requires 8 percent of the votes in the last gubernatorial election, while an ordinary initiative requires 5 percent. That is hardly a protection against hasty, unwise, or oppressive amendments.

We have gotten somewhat away from the direction of my original point, but I'm still curious: do you think (legal) rights are or are not "ultimately defined by the people"? If not, where do they come from, and what is the source of their legal authority? For all your outrage toward Ken Starr's statement of that position, it is interesting that, when challenged, your inclination is repeatedly to bring the matter back to the narrower (and less interesting) amendment/revision question.

*sigh*

I'm not keen to get into a philosophical debate about the nature of rights, but the Founders of both this nation and California believed that rights were not merely "generously provided" by the government or even the people. They believed rights were natural and inalienable. The existence of rights that precede and supercede the powers of government is enshrined in the Declaration of Independence, the Universal Declaration of Human Rights, the writings of our Founders, and the caselaw of our courts. As I've tried to explain, it is in that context that Starr's callous comments are rather shocking.

The difference is that I am not aware of any state passing constitutional amendments to undo the courts' decisions on that matter. In the case of gay marriage, the state did pass an amendment to overturn the court's decision.

There were no constitutional amendments that said blacks could not marry whites. It was all statutory law, not constitutional law.

I fail to see your point. I demonstrated that the definition of marriage is hardly set in stone, and can easily change to suit a changing society.

snip

which committee ? who is funding your efforts? Who asked youa ll to come up with a new Constitution ?

Actually I think everyone will agree on that. I am on a committee that is working on a new constitution.

A group of kids sitting around in a basement, and occassionally sending ranting e-mail to the governor, doesn't constitute "a committee... working on a new constitution".

Actually I think everyone will agree on that.

I wouldn't. I would agree with some changes to the current state constitution, such as making amendments more difficult to pass, but see no need for a wholesale re-write.

I am on a committee that is working on a new constitution.

Oh, goody. The lack of understanding of the federal and state constitutions and related principles that you have demonstrated in your posts on this forum more than amply testify to your qualifications to participate in such an exercise. :rolleyes:

Luckily, I doubt your "committee" is of any importance.

The events that immediately happend after the passage of Prop 8caused me to think that we were wrong to include gay marriage. Maybe gays are proving they are not ready for marriage rights. But I was also advised to wait and give them time to prove themselves.

WTF are you babbling about here?

Actually I think everyone will agree on that. I am on a committee that is working on a new constitution. and I know that there is a group of corporate execs who are also working on a new state constitution. The difference being that theirs is intended to give most of the power to multinational corporations where as ours is intended to bring California into the 20th century and includes an extended bill of rights that does include defining marrage rights to include both gay marriage and polygamous marriage. Though the latter will be restricted to people who have a minimum of a Bachelor's degree and who are over 21. For the first time, there will be a children's bill of rights written directly into the state constitution as well as a bill of Native American rights.
We are eliminating the state pension requirements and the entire department of the Comptroller. His duties would be shifted to the State Treasurer's office since the two have similar duties to begin with.
We are in contact with certain members of the legislature. The problem is we have to leave some areas untouched so they can have something to play with.
It's a long and tedious process. We hoped to be finished by now but the fact that we are not, says a lot about how difficult it is merely to draft an alternative. The events that immediately happend after the passage of Prop 8caused me to think that we were wrong to include gay marriage. Maybe gays are proving they are not ready for marriage rights. But I was also advised to wait and give them time to prove themselves.
I just know that little amendments to the current one, are not going to fix the problem in the long term.

It will take a new one.

Are you sure it's a 'committee'? Are you sure it isn't.... nothing?

Are you sure it's a 'committee'? Are you sure it isn't.... nothing?

Now, now. Pipe-dream committees are still committees. They're just committees in the same way that thinking about playing soccer is actually playing soccer.

Now, now. Pipe-dream committees are still committees. They're just committees in the same way that thinking about playing soccer is actually playing soccer.

They're 'committees' in the same way that cracking one off over a couple of your sister's Barbie dolls is 'having a threesome'.

Fair enough.
Nope I am not arguing that. Just noting that the courts have never required federal agencies to accept gay marriages as valid. There are no federal agencies in any of the federal branches that accept the validity of gay marriage. Seems to me, the federal courts are not inclined to force them to do so.
More psychic visions about what is going on the heads of justices you have never met and know nothing about?

Or just plain old-fashioned unsubstantiated bullshit?

When marijuana became acceptable for medical purposes in the state of California guess what. It remained illegal on the federal level.
So?

When the federal courts said marriage was a right, they never defined what marriage was.
They defined it as a fundamental right of people. You cannot deny it to gays unless you want to argue that gays are not people. Since you claim that you don't want to do that, you have just invalidated your own argument.

In common vernacular, marriage is between a man and a woman.
Irrelevant.

Not that I agree with that.
Cowardly. Also, I don't believe you.

You should be allowed to do what you want, within the limits of the law. If you don't like the law or, in this case, you don't like what an amendment to the Consitution does, you don't just ignore it, you change it. Only the people can change the state's constitution. The Supreme Court does not have that power. They can overturn regular initiative laws but they cannot overturn Constitutional amendments. Even the Feds are going to be extremely wary of overturning Prop 8.
And back to irrelevant. You just seem to be in love with pretending that the decision of the court is a foregone conclusion. It is not, as you have been reminded repeatedly. Ignoring it does not stop it from further invalidating your entire argument.

Bottom line: IF it turns out that Prop 8 was not a valid ballot measure, then the people decided nothing at all. That is CA's own rule, which was itself decided by the people. You don't get to crow about how the will of the people can only be changed by the will of the people until AFTER it is officially determined that the people passed a valid amendment. Period.

Cart and then horse is not a functional arrangement.

As long as the constitution allows them to do it, yes.
Ah, so you admit that they did wrong, that it was wrong to deny the right of marriage to gays.

There is nothing the courts can do. Your only option is to put a counter amendment on the ballot and hope it passes.
More bullshit. This has been explained to you over and over again. I do not believe you are too stupid to understand this simple fact, so I must assume that you are choosing to pretend it does not exist out of dishonest motives. But I'm going to throw it at you again:

It is not a foregone conclusion that Prop 8 was a valid ballot measure, and if the court decides that it was not, then it will be overturned. That is what the court CAN do about the constitution, according to the rules of the state of California, as decided by the people.

Also, I enjoy the adorable way you try to argue that the people can amend this constitution because of the iron-clad, rigid, unchangeable rules of the constitution. Apparently, according to you, the CA constitution can be changed willy-nilly when it comes to stripping people of their legal rights, but when it comes to following the constitution's own rules, then no, no change can be made.

They're 'committees' in the same way that cracking one off over a couple of your sister's Barbie dolls is 'having a threesome'.
:D

I certainly thought you were denying that in the quote to which I responded, particularly the bolded part.

No. It's a related question, but not a logically equivalent one.

The California Constitution makes clear that the initiative power is simply part of the legislative power that is retained by the people. The AG's position is that any legislation (whethier it be an initiative, a statute, or a constitutional amendment) that infringes a fundamental right must be subject to strict scrutiny. The argument is that the initiative-amendment power is not wholly unfettered by the California Constitution's protection of inalienable rights to life, liberty, and privacy.

Right, and as I've said, this argument fails because it in effect presumes the infallibility of Article I as it stands.

It is one thing to say, "There are natural rights that cannot be violated by government." It is quite another to say, "We have a list of these natural rights that we are certain about, and are thus not subject to alteration." The Attorney General suspends this logical gap entirely, and the fact that he allows strict scrutiny exceptions does not alter that.

His view would actually make more sense if he brought his own view a little more in line with the logic of the challengers, and made explicit the lurking possibility that a revision might be able to alter "inalienable rights" when an amendment cannot.

Both of you appear to believe that fundamental rights and/or the equality principle can be eviscerated by a mere amendment by iniative. Thus, my statement stands.

Outright? In total? No. In one application of a Supreme Court decision? Yes.

What standard of revision vs. amendment do you defend?

I'll go with the definition of a revision you posted earlier: "a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational power of its branches."

By this standard, Raven v. Deukmejian was a revision because it deprived the judicial branch of the authority to rule independently on a broad array of civil liberties. Prop. 8 is not a revision because it leaves the fundamental rights at the route of In re Marriage Cases almost entirely intact, and thus not altering in any fundamental aspect the character of the relations between the political entities of California.

Starr didn't seem to be able to think of any hypothetical situations that would require a revision instead of an amendment.

That's pretty stupid.

Here, I'll throw out one that you've already touched on: abolishing equal protection in its entirety would be a revision, because it would fundamentally alter the relation of the California government to its people.

First, you are ignoring the specific argument made by myself and most of the petitioners that depriving a suspect class of a fundamental right is a fundamental change in the California Constitution. Among other things, I would agree with Therese Stewart, San Francisco chief deputy city attorney, that "[a] guarantee of equality that is subject to exceptions by the majority is no guarantee at all."

These two statements are not equivalent. As a matter of fact, they amount to two different challenges to Prop. 8. I find the latter more persuasive than the former, though both ultimately unconvincing.

First, we could say, simply, "To deprive of a suspect class of a fundamental right is a fundamental change in the California Constitution"--that is to say, we could use the standard I've already cited and argue that Prop. 8 does in fact somehow alter the basic government plan of California. I think this argument fails to appreciate the narrowness of Prop. 8, which, as has been noted, not only does not alter the scope or content of equal protection or marriage rights in the vast majority of cases, but only partially alters them for same-sex couples, leaving intact the finding that sexual orientation discrimination is subject to strict scrutiny and the finding that same-sex couples must be entitled to all the rights and privileges of marriage except the term itself.

Further, to say that it "depriv[es] a suspect class of a fundamental right" is perhaps to beg the question: while the Court did rule that way, its interpretation is not infallible either. Interpreting Prop. 8 as a clarification of intent on the part of the people of California, there is no necessary sense of taking away a fundamental right as opposed to adopting a (supposedly) better conception of what that fundamental right actually constitutes.

Second, we could argue, on more original grounds, not that Prop. 8 is invalid by the standards for revision suggested by precedent, but that it is so on a different standard--that in a constitutional system founded on protecting the minority it makes no sense to say that minority rights can be removed by majority vote through the amendment power, even if the removal does not constitute a fundamental change. This argument sits better logically with me. For one, it can easily explain why the "suspect class" and "equal protection" elements are relevant: these are the constitutional guarantors against tyranny of the majority in a way more direct and fundamental than, say, the prohibition on cruel and unusual punishment.

My difficulty with it is that it ultimately strikes me as a judgment about the wisdom of the amendment process rather than an interpretation of the law itself. It may be the case that the amendment process, with its easy requirements for ballot access and voting margin, is not the best way to safeguard minority rights. It does not follow that it is absurd or unreasonable to regard it as a safeguard of minority rights, such that the only reasonable interpretation of the power must exclude depriving suspect classes of rights.

It is here that the issue of "defining rights" arises most concretely: taking constitutions as the fundamental law decided upon by the people, and thus invested with special significance and import when it comes to amendments, there is nothing inconsistent about saying both (a) constitutions must protect minority rights and (b) the minority rights that are protected may be altered via the constitutional amendment process even though that process requires only a majority vote.

It makes no sense for the whims of majority opinion to be able to deprive minorities of constitutional rights in the ordinary course of law-making. But it makes some sense for the convictions of the public to be expressible as to which rights are to be protected via mere majority vote. To violate a right protected by the Constitution and to alter the rights protected by the Constitution are different acts, invested with different public political significance: what applies to one need not apply automatically to the other.

Recall that all constitutional rights were originally brought about by majority--or supermajority!--vote. Factually speaking, the minority is always dependent on the majority to recognize its rights. The hope is that in a principled democratic society, the people will restrain themselves with protections for minority rights out of recognition for their convictions about political justice. (And, more cynically, out of fear that they might find themselves in the minority sometimes.)

That is hardly a protection against hasty, unwise, or oppressive amendments.

Then why bother having an amendment process at all? If the only difference between changing the Constitution and passing an ordinary ballot initiative is the narrow procedural one, and that difference is insignificant, what's the point of differentiating between the two?

I'm not keen to get into a philosophical debate about the nature of rights,

My point is subtler than that. It applies just as well to natural rights systems as any other: it is not that (necessarily) no rights exist independent of the will of government, but that legal rights are ultimately defined through political processes, not divine fiat.

We may try our best to make our legal rights match those natural rights we think exist beyond government authority. But we cannot pretend that those legal rights have a source or authority beyond ourselves, because they do not: we are the ones who decided upon them, not God, nor nature.

This is not a "philosophical" point so much as it is a reminder that we are dealing with a political change enacted by the majority that alters other earlier political changes enacted by the majority. We don't have perfect guarantors against the injustices of majority rule, a set of rules that emerge beyond legislative politics that restrain government authority.

WTF are you babbling about here?

I believe he's referring to his earlier post in which he claimed that gays were or had at one time "invaded" California. They're hostile!

I believe he's referring to his earlier post in which he claimed that gays were or had at one time "invaded" California. They're hostile!

you mean the pink pistol invasion
http://www.pinkpistols.org/

I am legal lion, hear me ROAR!

I am philosophical panther, hear me ROAR!
Can I just say, this is a fantastic, and fascinating debate.

A fine example of NS:G at it's (most serious) best.

Actually I think everyone will agree on that. I am on a committee that is working on a new constitution.

Oh goody.

and I know that there is a group of corporate execs who are also working on a new state constitution. The difference being that theirs is intended to give most of the power to multinational corporations

Not going to happen.

where as ours is intended to bring California into the 20th century

20th?

and includes an extended bill of rights that does include defining marrage rights to include both gay marriage and polygamous marriage. Though the latter will be restricted to people who have a minimum of a Bachelor's degree and who are over 21.


That doesn't solve much.

For the first time, there will be a children's bill of rights written directly into the state constitution

Hmmm Anti-Abortion anybody?

as well as a bill of Native American rights.

They are not citizens?


The events that immediately happend after the passage of Prop 8caused me to think that we were wrong to include gay marriage. Maybe gays are proving they are not ready for marriage rights. But I was also advised to wait and give them time to prove themselves.

Ahhhhhhyeeaaaaaaaaaaaa.

Consider how well hetros have done in marriage; they really don't have to prove much.

Hmmm with all the talk of marriage being a religious institution, it's interesting that with the exception of Nevada; the highest divorce rates happen are in the Bible belt.

Maybe we should let the gays marry simply to decrease the divorce percentages.

*snip*

Prop. 8 is not a revision because it leaves the fundamental rights at the route of In re Marriage Cases almost entirely intact, and thus not altering in any fundamental aspect the character of the relations between the political entities of California.

*snip*

I think this argument fails to appreciate the narrowness of Prop. 8, which, as has been noted, not only does not alter the scope or content of equal protection or marriage rights in the vast majority of cases, but only partially alters them for same-sex couples, leaving intact the finding that sexual orientation discrimination is subject to strict scrutiny and the finding that same-sex couples must be entitled to all the rights and privileges of marriage except the term itself.

Further, to say that it "depriv[es] a suspect class of a fundamental right" is perhaps to beg the question: while the Court did rule that way, its interpretation is not infallible either. Interpreting Prop. 8 as a clarification of intent on the part of the people of California, there is no necessary sense of taking away a fundamental right as opposed to adopting a (supposedly) better conception of what that fundamental right actually constitutes.

*snip*

I'll respond to the rest of your interesting points later when I have time, but I want to correct the myth that Prop. 8 is merely a change in nomenclature and leaves most of In re Marriage Cases intact.

One of the premises of In re Marriage Cases was that domestic partnership rights and marital rights were already substantially equal. The Court specifically and at lengthy explained that the "mere nomenclature" difference was a denial of the fundamental right to marry and a violation of equal protection. Creating a different name for some "marriages" makes the couples in those other relationships second-class citizens.

From the California Supreme Court in In re Marriage Cases (emphasis added):

As discussed below, upon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and potected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.

As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own — and, if the couple chooses, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

Furthermore, in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.

...

We need not decide in this case whether the name “marriage” is invariably a core element of the state constitutional right to marry so that the state could violate a couple’s constitutional right even if — perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage — the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples. Under the current statutes, the state has not revised the name of the official family relationship for all couples, but rather has drawn a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership). One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.

Furthermore, the circumstance that the current California statutes assign a different name for the official family relationship of same-sex couples as contrasted with the name for the official family relationship of opposite-sex couples raises constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause.
...

A number of factors lead us to this conclusion. First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are constitutional.

Also, from the Connecticut Supreme Court in Kerrigan:

The plaintiffs challenge the trial court’s conclusion that the distinction between marriage and civil unions is merely one of nomenclature. They contend that marriage is not simply a term denominating a bundle of legal rights. Rather, they contend that it is an institution of unique and enduring importance in our society, one that carries with it a special status. The plaintiffs therefore contend that their claim of unequal treatment cannot be dismissed solely because same sex couples who enter into a civil union enjoy the same rights under state law as married couples. The plaintiffs also claim that we must consider the legislature’s decision to create civil unions for same sex couples in the context of the historical condemnation and discrimination that gay persons have suffered. We agree with the plaintiffs that, despite the legislature’s recent establishment of civil unions, the restriction of marriage to opposite sex couples implicates the constitutional rights of gay persons who wish to marry a person of the same sex.

A cognizable constitutional claim arises whenever the government singles out a group for differential treatment. The legislature has subjected gay persons to precisely that kind of differential treatment by creating a separate legal classification for same sex couples who, like opposite sex couples, wish to have their relationship recognized under the law. Put differently, the civil union law entitles same sex couples to all of the same rights as married couples except one, that is, the freedom to marry, a right that ‘‘has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [and women]’’ and ‘‘fundamental to our very existence and survival.’’ Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). Indeed, marriage has been characterized ‘‘intimate to the degree of being sacred’’; Griswold v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); see also Turner v. Safley, 482 U.S. 78, 96, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (‘‘many religions recognize marriage as having spiritual significance’’); and ‘‘an institution more basic in our civilization than any other.’’ Williams v. North Carolina, 317 U.S. 287, 303, 63 S. Ct. 207, 87 L. Ed. 279 (1942). Marriage, therefore, is not merely shorthand for a discrete set of legal rights and responsibilities but is ‘‘one of the most fundamental of human relationships . . . .’’ Davis v. Davis, 119 Conn. 194, 203, 175 A. 574 (1934). ‘‘Marriage . . . bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. . . . Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution . . . .’’ (Citation omitted; internal quotation marks omitted.) Goodridge v. Dept. of Public Health, 440 Mass. 309, 322, 798 N.E.2d 941 (2003).

Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered; see part V A of this opinion; we cannot discount the plaintiffs’ assertion that the legislature, in establishing a statutory scheme consigning same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of the institution of marriage. In other words, ‘‘[b]y excluding same-sex couples from civil marriage, the [s]tate declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.’’ Lewis v. Harris, 188 N.J. 415, 467, 908 A.2d 196 (2006) (Poritz, C. J., concurring and dissenting); see also In re Marriage Cases, 43 Cal. 4th 757, 830–31, 183 P.3d 384, 76 Cal. Rptr. 3d 683 (2008) (‘‘[t]he current statutes—by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership—pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry’’); Opinions of the Justices to the Senate, 440 Mass. 1201, 1207, 802 N.E.2d 565 (2004) (‘‘[t]he dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status’’).

Although the legislature has determined that same-sex couples are entitled to ‘‘all the same benefits, protections and responsibilities . . . [that] are granted to spouses in a marriage’’; General Statutes § 46b-38nn; the legislature nonetheless created an entirely separate and distinct legal entity for same sex couples even though it readily could have made those same rights available to same sex couples by permitting them to marry. In view of the exalted status of marriage in our society, it is hardly surprising that civil unions are perceived to be inferior to marriage. We therefore agree with the plaintiffs that ‘‘[m]aintaining a second-class citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue.’’ (Emphasis in original.) Opinions of the Justices to the Senate, supra, 1209.

Accordingly, we reject the trial court’s conclusion that marriage and civil unions are ‘‘separate’’ but ‘‘equal’’ legal entities; Kerrigan v. Commissioner of Public Health, supra, 49 Conn. Sup. 664; and that it therefore ‘‘would be the elevation of form over substance’’; id., 667; to conclude that the constitutional rights of same sex couples are implicated by a statutory scheme that restricts them to civil unions. Although marriage and civil unions do embody the same legal rights under our law, they are by no means ‘‘equal.’’ As we have explained, the former is an institution of transcendent historical, cultural and social significance, whereas the latter most surely is not. Even though the classifications created under our statutory scheme result in a type of differential treatment that generally may be characterized as symbolic or intangible, this court correctly has stated that such treatment nevertheless ‘‘is every bit as restrictive as naked exclusions’’; Evening Sentinel v. National Organization for Women, 168 Conn. 26, 35, 357 A.2d 498 (1975); because it is no less real than more tangible forms of discrimination, at least when, as in the present case, the statute singles out a group that historically has been the object of scorn, intolerance, ridicule or worse.

We do not doubt that the civil union law was designed to benefit same sex couples by providing them with legal rights that they previously did not have. If, however, the intended effect of a law is to treat politically unpopular or historically disfavored minorities differently from persons in the majority or favored class, that law cannot evade constitutional review under the separate but equal doctrine. See, e.g., Brown v. Board of Education, 347 U.S. 483, 495, 74 S. Ct. 686, 98 L. Ed. 873 (1954); cf. In re Marriage Cases, supra, 43 Cal. 4th 830–31; Opinions of the Justices to the Senate, supra, 440 Mass. 1209. In such circumstances, the very existence of the classification gives credence to the perception that separate treatment is warranted for the same illegitimate reasons that gave rise to the past discrimination in the first place. Despite the truly laudable effort of the legislature in equalizing the legal rights afforded same sex and opposite sex couples, there is no doubt that civil unions enjoy a lesser status in our society than marriage. We therefore conclude that the plaintiffs have alleged a constitutionally cognizable injury, that is, the denial of the right to marry a same sex partner.

Denying same-sex couples the nomenclature of "marriage" violates their fundamental rights and is, in and of itself, a violation of equal protection of the law.

Catribe I am not reading all that shit summarize.

They're 'committees' in the same way that cracking one off over a couple of your sister's Barbie dolls is 'having a threesome'.

Most disturbing image of the week.

I'll respond to the rest of your interesting points later when I have time, but I want to correct the myth that Prop. 8 is merely a change in nomenclature and leaves most of In re Marriage Cases intact.

One of the premises of In re Marriage Cases was that domestic partnership rights and marital rights were already substantially equal. The Court specifically and at lengthy explained that the "mere nomenclature" difference was a denial of the fundamental right to marry and a violation of equal protection. Creating a different name for some "marriages" makes the couples in those other relationships second-class citizens.

From the California Supreme Court in In re Marriage Cases (emphasis added):

*snip*

Denying same-sex couples the nomenclature of "marriage" violates their fundamental rights and is, in and of itself, a violation of equal protection of the law.

Catribe I am not reading all that shit summarize.

Jumping Jesus on a pogo-stick! :mad:

In the paragraphs before and after the case quotations, I did provide pithy summaries.

Further, I digested the 172-page In re Marriage Cases opinion to a mere six paragraphs -- the most relevant parts of which I bolded and italicized. I also reduced the 86-page opinion in Kerrigan v. State of Connecticut to six relevant paragraphs.

If and when I've further chewed up and regurgitated my post into smaller pieces, will I need to come to your house and personally spoon-feed them to you? :eek:

EDIT: Just to be clear, these comments are mostly intended to be humorous, particularly the use of the mad smiley. ;)

If and when I've further chewed up and regurgitated my post into smaller pieces, will I need to come to your house and personally spoon-feed them to you? :eek:

Would you? I've flogged my attention span within an inch of its life. I'm lucky if I can remember the intent of the sentence I'm writing all the way to the...what was I talking about?

Alls I know is, I ain't come from no monkey. *Burns Clarence Darrow in effigy*

Wait, what's this about?

They're 'committees' in the same way that cracking one off over a couple of your sister's Barbie dolls is 'having a threesome'.

I was going to compare that commitee thing to wanking, but yeah, what you said was better than anything I had.
Alls I know is, I ain't come from no monkey. *Burns Clarence Darrow in effigy*

Wait, what's this about?

Teh gayz

Most disturbing image of the week.

Jumping Jesus on a pogo-stick! :mad:

You were saying? ;)

If and when I've further chewed up and regurgitated my post into smaller pieces, will I need to come to your house and personally spoon-feed them to you? :eek:

Ouch. Why do I picture you like a little old balding man who just facepalmed right before he typed that?

Although the following will make some eyes glaze over, some of you might find helpful the following overview of the relevant caselaw regarding revisions vs. amendments of the California Constitution from Justice Mosk's dissent in Legislature v. Eu, 54 Cal.3d 492, 538-541 (1991) (bold added):

Article XVIII of the California Constitution, which is entitled "Amending and Revising the Constitution," provides for (1) amendment by proposal of the Legislature or initiative by the people and (2) revision by proposal of the Legislature or constitutional convention called by the Legislature with the approval of the people. Manifestly, these procedures are exclusive. Thus, an amendment may be effected only by legislative proposal or popular initiative. And a revision may be effected only by legislative proposal or constitutional convention. It follows that a popular initiative may amend but may not revise. (Brosnahan v. Brown, supra, 32 Cal.3d at p. 260; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 221 [149 Cal.Rptr. 239, 583 P.2d 1281].)

"Amendment" and "revision" are not defined in article XVIII or elsewhere in the California Constitution in express terms. But almost 100 years ago, in Livermore v. Waite (1894) 102 Cal. 113 [36 P. 424], the court suggested their meaning.

At that time, article XVIII provided "two methods" for effecting changes in the Constitution: revision by constitutional convention and amendment by legislative proposal. (Livermore v. Waite, supra, 102 Cal. at p. 117.)

The Livermore court declared: "Under the first of these methods the entire sovereignty of the people is represented in the convention. The character and extent of a constitution that may be framed by that body is freed from any limitations other than those contained in the constitution of the United States. ... The constitution itself has been framed by delegates chosen by the people for that express purpose, and has been afterwards ratified by a vote of the people, ... and the provision in article XVIII that it can be revised only in the same manner, and after the people have had an opportunity to express their will in reference thereto, precludes the idea that it was the intention of the people, by the provision for amendments authorized in the ... article, to afford the means of effecting the same result which ... has been guarded with so much care and precision. The very term 'constitution' implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term 'amendment' implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed." (Livermore v. Waite, supra, 102 Cal. at pp. 117-119.)

More than 50 years later, in McFadden v. Jordan (1948) 32 Cal.2d 330 [196 P.2d 787], the court considered whether the so-called "California Bill of Rights," if approved, would effect an amendment or a revision.

At the threshold, the McFadden court set out the principles stated in Livermore. It then proceeded to determine their applicability to initiatives. "The initiative power reserved by the people by amendment to the Constitution in 1911 [citation] applies only to the proposing and the adopting or rejecting of 'laws and amendments to the Constitution' and does not purport to extend to a constitutional revision." (McFadden v. Jordan, supra, 32 Cal.2d at p. 333.) It went on to explain: "The differentiation" "between amend and revise" "is not merely between two words; more accurately it is between two procedures and between their respective fields of application. ... The people of this state have spoken; they made it clear when they adopted article XVIII and made amendment relatively simple but provided the formidable bulwark of a constitutional convention as a protection against improvident or hasty (or any other) revision, that they understood that there was a real difference between amendment and revision." (Id. at p. 347.)

Among other things, observed the McFadden court, the "California Bill of Rights" would (1) add what were in actuality 12 articles in 208 sections with over 21,000 words to a document containing 25 articles in 347 sections with about 55,000 words; (2) repeal or substantially alter at least 15 of those 25 articles; (3) treat a minimum of 4 new topics; and (4) substantially curtail the functions of both the legislative and executive branches. (McFadden v. Jordan, supra, 32 Cal.2d at pp. 334-345.)

"Applying the long established law to any tenable view of the facts which have been related," the McFadden court concluded, "it is overwhelmingly certain that the measure now before us would constitute a revision of the Constitution rather than an amendment or 'such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purposes for which it was framed.' " (McFadden v. Jordan, supra, 32 Cal.2d at pp. 349- 350, quoting Livermore v. Waite, supra, 102 Cal. at pp. 118-119.)

Next, in Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d 208, the court addressed the question whether Proposition 13, which added article XIII A to the California Constitution, was amendatory or revisory. It stated: "Taken together our Livermore and McFadden decisions mandate that our analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the 'substantial entirety' of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also." (22 Cal.3d at p. 223.) Applying the foregoing standard, the court determined that Proposition 13 had insufficient qualitative or quantitative effect to constitute a revision.

Then, in People v. Frierson (1979) 25 Cal.3d 142 [158 Cal.Rptr. 281, 599 P.2d 587], a plurality of the court considered in dictum whether a 1972 initiative measure was amendatory or revisory. The measure added section 27 to article I of the California Constitution, validating the death penalty as a permissible punishment under that instrument. The plurality concluded that the initiative effected an amendment only: "In Amador Valley, we observed that 'even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision. ...' (P. 223.) Section 27, however, accomplishes no such sweeping result." (25 Cal.3d at pp. 186-187 (plur. opn.), [dictum].)

Next, in Brosnahan v. Brown, supra, 32 Cal.3d 236, the court addressed whether Proposition 8 [known as "The Victims' Bill of Rights"], as a whole, was amendatory or revisory. Applying the "dual analysis" of Amador Valley, which "examin[es] both the quantitative and qualitative effects of" an initiative "upon our constitutional scheme," the court concluded that the measure "did not accomplish a 'revision' ...." (32 Cal.3d at pp. 260-261.)

Finally, in In re Lance W. (1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744], the court considered whether section 3 of Proposition 8, which added article I, section 28, subdivision (d), to the California Constitution, was revisory. It had first determined that section 3 of the initiative abrogated the judicially created exclusionary rule as a remedy for the violation of a criminal defendant's state constitutional right against unreasonable searches and seizures. It reasoned that the people's exercise of the legislative power to restrict judicial authority in this area "does not, either qualitatively or quantitatively, 'accomplish such far reaching changes in the nature of [judicial authority] as to amount to a revision' of the Constitution" because such power is constitutionally recognized and its use in this matter does not amount to "a sweeping change either in the distribution of powers made in the organic document or in the powers which it vests in the judicial branch ...." (37 Cal.3d at pp. 891-892.)

In light of the case law, the definitional standard applicable for purposes of article XVIII of the California Constitution is as follows. A "revision" denotes a change that is qualitatively or quantitatively extensive, affecting the "underlying principles upon which [the Constitution] rests" or the "substantial entirety of the instrument." (Livermore v. Waite, supra, 102 Cal. at [54 Cal.3d 542] p. 118.) By contrast, an "amendment" denotes a change that is qualitatively and quantitatively limited, making a modification "within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed." (Id. at pp. 118- 119.)fn. 2

¬FN 2. It could perhaps be argued that the definitional standard may require modification. In Livermore, the court reasoned in substance that "revision" denoted qualitatively or quantitatively extensive change because the process of revision as then defined, i.e., by constitutional convention, was exceptionally difficult. In McFadden, the court adhered to that reasoning because its predicate still obtained. In Amador Valley, the court recognized that a change had been wrought: formerly, "a constitutional revision could be accomplished only by the elaborate procedure of the convening of, and action by, a constitutional convention" (22 Cal.3d at p. 222); now, it can also be effected by the relatively simple procedure of legislative proposal (id. at p. 221). The court implied the change was "significant." (Id. at p. 222.) But it apparently failed to appreciate precisely what its "significance" was. Because the process of revision as now defined is slightly, if at all, more difficult than the process of amendment, "revision" might perhaps be deemed to denote a change that is slightly, if at all, more extensive than that accomplished by "amendment." In a word, if an "amendment" is a modification "within the lines of the original instrument," a "revision" is any change beyond those lines in any degree.

http://en.wikipedia.org/wiki/Pace_v._Alabama

Supreme Court decision is constitutional law.

The court decision is constitutional law. The law against mixed race marriages was statutory. Constitutional law takes precedence over statutory law. Courts are free to invalidate statutory laws.

I certainly thought you were denying that in the quote to which I responded, particularly the bolded part.



You seem to be either misunderstanding or avoiding the AG's position (which I admit is not one I find wholly persuasive). The California Constitution makes clear that the initiative power is simply part of the legislative power that is retained by the people. The AG's position is that any legislation (whethier it be an initiative, a statute, or a constitutional amendment) that infringes a fundamental right must be subject to strict scrutiny. The argument is that the initiative-amendment power is not wholly unfettered by the California Constitution's protection of inalienable rights to life, liberty, and privacy.



Both of you appear to believe that fundamental rights and/or the equality principle can be eviscerated by a mere amendment by iniative. Thus, my statement stands.



What standard of revision vs. amendment do you defend?

Starr didn't seem to be able to think of any hypothetical situations that would require a revision instead of an amendment. He only grudgingly acknolwedged that the amendment in Raven was invalid, because he was faced with a majority opinion so holding.



First, you are ignoring the specific argument made by myself and most of the petitioners that depriving a suspect class of a fundamental right is a fundamental change in the California Constitution. Among other things, I would agree with Therese Stewart, San Francisco chief deputy city attorney, that "[a] guarantee of equality that is subject to exceptions by the majority is no guarantee at all."

Second, Starr did not limit himself to defense of "narrow alter[ations" of the rights protected by the Cal. Constitution. His argument appears to assume that any and all rights protected by the Cal. Constitution may be revoked by mere amendment.



Really? When?



This assumes that Prop. 8 is validly a mere amendment and not a revision.

Moreover, the only "special procedure" is required for a constitutional amendment by initiative that is not required for an initiative is the number of signatures required to get the measure on the ballot. A constitutional amendment requires 8 percent of the votes in the last gubernatorial election, while an ordinary initiative requires 5 percent. That is hardly a protection against hasty, unwise, or oppressive amendments.



*sigh*

I'm not keen to get into a philosophical debate about the nature of rights, but the Founders of both this nation and California believed that rights were not merely "generously provided" by the government or even the people. They believed rights were natural and inalienable. The existence of rights that precede and supercede the powers of government is enshrined in the Declaration of Independence, the Universal Declaration of Human Rights, the writings of our Founders, and the caselaw of our courts. As I've tried to explain, it is in that context that Starr's callous comments are rather shocking.
I'm not sure we can fall back on the founders of either the US or California as both groups would have strongly opposed giving marriage rights to gays. Especially those involved in drafting the Constitution of California were not bigoted against gays but against anyone who was not a white male.

By their standards, gay marriage is wrong and impermissable. By today's standards, there is no nonreligious reason to ban it. The child's health doesn't hold, considering the nation's premiere pschological association is releasing a report stating that children who grow up in gay households are just as healthy and emotionally stable as those in hetero households.
Should we not use modern standards when choosing whether to allow something?

which committee ? who is funding your efforts? Who asked youa ll to come up with a new Constitution ?

It's not something you do for the money. It's something you have to volunteer to do.

It's also something that would have to be kept secret otherwise you'll have the extremists trying to jump in and influence it. Partisan participation would destroy any such project.

Any Californian who puts in enough effort can propose a new constitution but only a legislator can introduce it and the legislature has to approve it by 3/4 and then submit to the people for a vote.

A group of kids sitting around in a basement, and occassionally sending ranting e-mail to the governor, doesn't constitute "a committee... working on a new constitution".

True, then again, I've never sent an email to the governor, since he has no real powers in regards to whether the constitution is replaced. I have spoken to certain members of the state assembly who have asked to be kept updated.

Our concern at the moment is to prevent interference by extremist partisans from either political party. We do occasional polls by talking to random people and doing philosophical and legal research into what other states are doing and what the standards and beliefs of modern Californians.

It's also something that would have to be kept secret otherwise you'll have the extremists trying to jump in and influence it.

If such a group actually existed, that group would be the 'extremists'.

USoA, you don't feel like telling us what group it is, or if it is just a private group of like-minded people?

True, then again, I've never sent an email to the governor, since he has no real powers in regards to whether the constitution is replaced. I have spoken to certain members of the state assembly who have asked to be kept updated.

Our concern at the moment is to prevent interference by extremist partisans from either political party. We do occasional polls by talking to random people and doing philosophical and legal research into what other states are doing and what the standards and beliefs of modern Californians.

The Constitution is not supposed to match the 'standards and beliefs' of modern Californians. That's the whole point of a Constitution.

Oh goody.



Not going to happen.



20th?



That doesn't solve much.



Hmmm Anti-Abortion anybody?



They are not citizens?



Ahhhhhhyeeaaaaaaaaaaaa.

Consider how well hetros have done in marriage; they really don't have to prove much.

Hmmm with all the talk of marriage being a religious institution, it's interesting that with the exception of Nevada; the highest divorce rates happen are in the Bible belt.

Maybe we should let the gays marry simply to decrease the divorce percentages.

1. I hope not.
2. I meant the 21st.
3. including gay marriage would protect the right of gay people to secular marriages. Since the state can only sanction secular marriages, that clause would require the state to issue a marriage license to everyone who asks, regardless of sexual orientation.
4. Actually the new bill of rights clearly states that abortion is an inalienable right. Children's bill of rights refers to a child's right to be free of physical, emotional, or sexual abuse. It also refers to their inalienable right to be supported by the people who created them.
5.Native American bill of rights deals with respecting their soveriegnty. The rights of free speech, etc, already apply to them through relevant federal laws. The issue here actually about their soveriegnty. IE. stating that state laws can't be enforced on tribal lands without tribal consent.

USoA, you don't feel like telling us what group it is, or if it is just a private group of like-minded people?

It's (obviously) a bunch of stoners sitting around in their dorm pretending they're actually involved in some kind of 'real' political endeavour, when, in reality, not a one of them has even ever marched in a protest. Probably.

USoA, you don't feel like telling us what group it is, or if it is just a private group of like-minded people?

Currently it is private. Once we ask for the legislature's support it will become a public group and the document will be open to public comment and modifications. Unfortunately, the end product won't be as perfect as we would like. Hence the need for public polishing. During the public hearings, I'm sure there will be changes to add rights and subtract stuff.

One of the things holding us up is what should we do with education. Keeping the $2,000 a year for teachers and districts is unreasonable. But how do we fix it without giving all the power over education to the unions or the special interest groups such as Focus On The Family.
If you know any education professionals or interested persons we could certainly use their input. I've approached the california teachers association and they were more interested in politicking than they were in fixing the education code. So we're not interested in working with unions, just regular teachers, administrators and concerned parents.

It's (obviously) a bunch of stoners sitting around in their dorm pretending they're actually involved in some kind of 'real' political endeavour, when, in reality, not a one of them has even ever marched in a protest. Probably.

What good do protest marches do? It's better to put your actions where your words are.

Things are better done through serious backroom dealings and by infiltrating groups and websites to see how people feel or think about a given issue. We use that to form our proposals. Assuming, of course, those popular views have sound foundations. Some of the rights we are including are not exactly popular. The christian groups will especially object to them and we are concerned that James Dobson might derail the project by objecting to the abortion, gay rights, and stem cell clauses among other items in the document.

I don't agree with abortion, but I don't have the right to second guess women. Dobson's position seems to be that women don't have rights period.

What good do protest marches do? It's better to put your actions where your words are.

Protest marches aren't actions?

What good do protest marches do? It's better to put your actions where your words are.

Things are better done through serious backroom dealings and by infiltrating groups and websites to see how people feel or think about a given issue. We use that to form our proposals. Assuming, of course, those popular views have sound foundations. Some of the rights we are including are not exactly popular. The christian groups will especially object to them and we are concerned that James Dobson might derail the project by objecting to the abortion, gay rights, and stem cell clauses among other items in the document.

I don't agree with abortion, but I don't have the right to second guess women. Dobson's position seems to be that women don't have rights period.

Serious backroom dealings... infiltrating groups...

You're finding increasingly nebulous and inventive phrasings to explain why no one would have ever heard of you, and you've nothing to show for your alleged 'actions'.

Serious backroom dealings... infiltrating groups...

You're finding increasingly nebulous and inventive phrasings to explain why no one would have ever heard of you, and you've nothing to show for your alleged 'actions'.

All in due time my friend. Our group doesn't have a name. But Project Blackbook sounds catchy.
:)

Project FBI Watchlist has a better ring to it.

All in due time my friend. Our group doesn't have a name. But Project Blackbook sounds catchy.
:)

Your group does have a name. It's called 'self-important posturing'. It's not nearly as selective as you appear to think.

All in due time my friend. Our group doesn't have a name. But Project Blackbook sounds catchy.
:)

It sounds like you keep track of acts banned from local clubs.

Currently it is private. Once we ask for the legislature's support it will become a public group and the document will be open to public comment and modifications. Unfortunately, the end product won't be as perfect as we would like. Hence the need for public polishing. During the public hearings, I'm sure there will be changes to add rights and subtract stuff.

One of the things holding us up is what should we do with education. Keeping the $2,000 a year for teachers and districts is unreasonable. But how do we fix it without giving all the power over education to the unions or the special interest groups such as Focus On The Family.
If you know any education professionals or interested persons we could certainly use their input. I've approached the california teachers association and they were more interested in politicking than they were in fixing the education code. So we're not interested in working with unions, just regular teachers, administrators and concerned parents.
So, in other words, it's just you and a couple of friends (maybe) kicking some shit around and then you getting on NSG and pretending like you've got something real going on?

I mean, it's not like you are a consortium of community groups, businesses, and legal experts working on this project with the awareness of some members of the state legislature. Nothing like that, right?

So, in other words, it's just you and a couple of friends (maybe) kicking some shit around and then you getting on NSG and pretending like you've got something real going on?

I mean, it's not like you are a consortium of community groups, businesses, and legal experts working on this project with the awareness of some members of the state legislature. Nothing like that, right?

He's working in secret, infiltrating groups and websites.......



OH SHIT! He's infiltrated NSG and he's using us to help craft his California State Constitution OF DOOOM!!!!!!11!™

Your group does have a name. It's called 'self-important posturing'. It's not nearly as selective as you appear to think.
No, but it comes with a readymade acronym. SIP. That's...um...catchy...isn't it?

It sounds like you keep track of acts banned from local clubs.
They do that too. They have their eyes everywhere.

I'm not sure we can fall back on the founders of either the US or California as both groups would have strongly opposed giving marriage rights to gays. Especially those involved in drafting the Constitution of California were not bigoted against gays but against anyone who was not a white male.

By their standards, gay marriage is wrong and impermissable. By today's standards, there is no nonreligious reason to ban it. The child's health doesn't hold, considering the nation's premiere pschological association is releasing a report stating that children who grow up in gay households are just as healthy and emotionally stable as those in hetero households.
Should we not use modern standards when choosing whether to allow something?

With all due respect, kiddo, come back and talk to us when you have half a clue as to what a Constitution is, why one is established, and how one is interpreted/enforced.

I've approached the california teachers association and they were more interested in politicking than they were in fixing the education code. So we're not interested in working with unions, just regular teachers, administrators and concerned parents.

Um, yeah. As an active member of the CTA, I can tell you that this is bullshit. Unless by "politicking" you mean "earning a living wage" and by "regular teachers" you mean "the five public ed. teachers who don't belong to the union". Your mention of administrators as a group you're "interested in working with" is extra fail.

Oh, and by "approached" you mean "looked at the website".

Why do I get the feeling that USofA is confusing actual the ACTUAL United States of America with his NS nation?

So, in other words, it's just you and a couple of friends (maybe) kicking some shit around and then you getting on NSG and pretending like you've got something real going on?

I mean, it's not like you are a consortium of community groups, businesses, and legal experts working on this project with the awareness of some members of the state legislature. Nothing like that, right?

None of those special interest groups are involved in the project.

None of those special interest groups are involved in the project.
Of course not. Their members would likely be people with jobs and degrees. Not you and your friends hanging out in mom and dad's basement and planning a new constitution during breaks between D&D sessions.

He's working in secret, infiltrating groups and websites.......



They do that too. They have their eyes everywhere.

Oh shit, it's the Illuminati!

Why do I get the feeling that USofA is confusing actual the ACTUAL United States of America with his NS nation?
It would explain a lot.

Oh shit, it's the Illuminati!
I don't know if he's drunk enough to be an Illuminatus.

Of course not. Their members would likely be people with jobs and degrees. Not you and your friends hanging out in mom and dad's basement and planning a new constitution during breaks between D&D sessions.

Oh please, they've "been in contact" with "legislatures" who are "very interested" in their "project"

Why do I get the feeling that USofA is confusing actual the ACTUAL United States of America with his NS nation?

It's understandable you might think that and that other people here might think what they think. After all, there is no way to verify who any of us are. Is there?

As far as anyone is concerned I'm probably some nerdy kid sitting in his parents' basement with dreams of grandeur. Is that a good summary?

Or maybe I'm some fat 40 year old sitting in front of a computer all day because he can't get laid?

Or it could be a number of other things.

Whatever people want to think is fine with me. It's a free country.

Oh please, they've "been in contact" with "legislatures" who are "very interested" in their "project"
Those are all euphemisms, I'm sure.

It's understandable you might think that and that other people here might think what they think. After all, there is no way to verify who any of us are. Is there?

I don't really care who you are. Either you're not telling the truth about what you're trying, in which case you're a liar, or you are, in which case you're delusional.

I really don't care which.

I believe it is spelled legislators.

Of course not. Their members would likely be people with jobs and degrees. Not you and your friends hanging out in mom and dad's basement and planning a new constitution during breaks between D&D sessions.
Actually their members would be most likely to be corrupt and interested in giving their particular industry most of the power over the state.

I don't really care who you are. Either you're not telling the truth about what you're trying, in which case you're a liar, or you are, in which case you're delusional.

I really don't care which.You're free to your opinion.

I believe it is spelled legislators.

do you not know what a "legislature" is?

You're free to your opinion.

yes, thank you, I'm well aware of that. I did not need you to validate that particular fact for me.

do you not know what a "legislature" is?

A body of legislators?

*runs*

Of course not. Their members would likely be people with jobs and degrees. Not you and your friends hanging out in mom and dad's basement and planning a new constitution during breaks between D&D sessions.

At least people will have the constitutional right to bear vorpal arms.

Actually their members would be most likely to be corrupt and interested in giving their particular industry most of the power over the state.
Of course that's the reason, dungeon-master.

At least people will have the constitutional right to bear vorpal arms.

when weapons that allow you to roll an extra die on critical damage rolls are outlawed, only outlaws will have weapons that allow you to roll an extra die on critical damage rolls.

(I so totally had to look up what vorpal weapons did)

when weapons that allow you to roll an extra die on critical damage rolls are outlawed, only outlaws will have weapons that allow you to roll an extra die on critical damage rolls.

(I so totally had to look up what vorpal weapons did)

Uh huh....

;)

when weapons that allow you to roll an extra die on critical damage rolls are outlawed, only outlaws will have weapons that allow you to roll an extra die on critical damage rolls.

(I so totally had to look up what vorpal weapons did)

Ah but are such laws needed if you can obtain Magic Cloth?

And We don't believe you had to look that up nerd! :p

Ah but is such laws needed if you can obtain Magic Cloth?

we just need a level 20 wizard to cast "create constitution". The components are a bitch though. Where do you find a vial of "the blood of patriots"?

we just need a level 20 wizard to cast "create constitution". The components are a bitch though. Where do you find a vial of "the blood of patriots"?
I believe the Heritage Foundation has whole trunk freezers full of the stuff.

when weapons that allow you to roll an extra die on critical damage rolls are outlawed, only outlaws will have weapons that allow you to roll an extra die on critical damage rolls.

(I so totally had to look up what vorpal weapons did)

What system are you using, because that's not how vorpal weapons work in 3.0 and 3.5 (they just take the head off of anything you're attacking on a critical hit, provided that thing is susceptible to critical hits).

we just need a level 20 wizard to cast "create constitution". The components are a bitch though. Where do you find a vial of "the blood of patriots"?

"oh USofA... this won't hurt.... much..." :tongue:

What system are you using, because that's not how vorpal weapons work in 3.0 and 3.5 (they just take the head off of anything you're attacking on a critical hit, provided that thing is susceptible to critical hits).
it's been changed in 4.0 and above.

What system are you using, because that's not how vorpal weapons work in 3.0 and 3.5 (they just take the head off of anything you're attacking on a critical hit, provided that thing is susceptible to critical hits).

http://forums.gleemax.com/showthread.php?t=1044906

neo's sounds like 2.0

it's been changed in 4.0 and above.

http://forums.gleemax.com/showthread.php?t=1044906

neo's sounds like 2.0

Yeah, it's 4.0. I actually had to crack open the book to check. -_-

Yeah, it's 4.0. I actually had to crack open the book to check. -_-

i thought vorpal in 4.o let you reroll any dice that comes up max and add that in addition to the damage.

Right, and as I've said, this argument fails because it in effect presumes the infallibility of Article I as it stands.

No, it doesn't. It does, however, take seriously the California Constitution's own statements that it was formed to protect freedoms and that certain rights are inalienable. Article I can be amended in a limited way by making a modification that is "within the lines of the original instrument..." It can be revised with an extensive change that affects Article I's underlying principles.

But (and this is the AG's argument that I have said I don't find wholly convincing) no legislative action, whether it be a statute, an amendment, or a revision, can impinge on a fundamental, inalienable right without being subject to strict scutiny.

You understand strict scrutiny so I don't have to explain what it is or how it was developed. Inherent in its development, however, was the idea that some rights are more fundamental than others and require greater justification for infringement.

It is one thing to say, "There are natural rights that cannot be violated by government." It is quite another to say, "We have a list of these natural rights that we are certain about, and are thus not subject to alteration." The Attorney General suspends this logical gap entirely, and the fact that he allows strict scrutiny exceptions does not alter that.

We have a non-exhaustive list of rights that cannot be violated by government that the people expressly put beyond the reach of the government when they founded our government -- and our government was founded to protect these rights.

His view would actually make more sense if he brought his own view a little more in line with the logic of the challengers, and made explicit the lurking possibility that a revision might be able to alter "inalienable rights" when an amendment cannot.

I agree, but his point does have more merit than you give it credit.

Outright? In total? No. In one application of a Supreme Court decision? Yes.

First, Starr said that any and all of the rights of Article I could be amended out of existence. I am glad to see you wouldn't go that far.

Second, how much of a denial of a fundamental right and/or equal protection must there be to require a revision, as opposed to a mere amendment? Is it OK to obliterate one right, but not two? Discriminate against one suspect class, but not two?

Third, I've already partially responded regarding the degree to which Prop. 8 contradicts the decision in In re Marriage Cases. Given that it is the job of the judiciary to say what the law is and that the Court's decisions ARE THE LAW, a change that, by the existing law, takes a fundamental right away from a suspect class is more than a mere amendment.

I'll go with the definition of a revision you posted earlier: "a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational power of its branches."

I specifically said that that was a sufficient, but not necessary, for a revision.

Starr himself admitted that the Court has never said that a constitutional change must "a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational power of its branches." At best, he argued it was implied by the Court's jurisprudence. He relied primarily on language from dicta in the plurality opinion in Frierson.

By this standard, Raven v. Deukmejian was a revision because it deprived the judicial branch of the authority to rule independently on a broad array of civil liberties.

In Raven, the Court held that Prop. 115 "implicated" "fundamental constitutional rights." (See also Legislature v. Eu, 54 Cal. 3d 492 (1991) (In Raven, the Court "observed that the challenged provision would have 'devastating effects, by drastically limiting the procedural rights of criminal defendants ..."). Prop. 8 similarly implicates fundamental constitutional protections.

How exactly did Prop. 115 deprive the judicial branch of authority and cause "devastating effects"? By providing that "California courts in criminal cases would no longer have authority to interpret the state Constitution in a manner more protective of defendants' rights than extended by the federal Constitution, as construed by the United States Supreme Court."

One could easily argue that making the state constitutional procedural rights of California defendants coextensive with the U.S. Constitution is less devastating than depriving a suspect class of a right altogether. Many of the California provisions in question use the same language as the U.S. Constitution and many other states have interpreted such rights as coextensive. Why is that "a change in the basic plan of California government" but not Prop. 8?

Prop. 8 is not a revision because it leaves the fundamental rights at the route of In re Marriage Cases almost entirely intact, and thus not altering in any fundamental aspect the character of the relations between the political entities of California.

The revision in Raven did not "alter[] in any fundamental aspect the character of the relations between the political entities of California" but rather deprive the California judiciary of the power to independently extend procedural rights beyond those mirrored in the U.S. Constitution. It is just as arguable that Prop. 8 deprives the judiciary of the power to enforce a fundamental right AND to ensure equal protection under the law.

Further, as my earlier post indicated, Prop. 8 did not leave the fundamental rights at the root of In re Marriage Cases intact. The very premise of In re Marriage Cases was that the same language now enshrined in Prop. 8 infringed a fundamental right AND discriminated against a suspect class.

Here, I'll throw out one that you've already touched on: abolishing equal protection in its entirety would be a revision, because it would fundamentally alter the relation of the California government to its people.

Again, Ken Starr doesn't appear to have conceded this AND this raises the question of how much violation of equal protection equals a revision. You say "abolishing equal protecting in its entirety" goes to far, but depriving a suspect class of a fundamental right does not.

Would a change that deprived African-Americans of the right to free speech be an amendment or a revision?

These two statements are not equivalent.

No duh. :wink: They are, however, closely related. Depriving a suspect class of a fundamental right (or even a critical aspect of a fundamental right) by mere majority vote is to say that suspect classes are not guaranteed equal protection.

As a matter of fact, they amount to two different challenges to Prop. 8. I find the latter more persuasive than the former, though both ultimately unconvincing.

First, we could say, simply, "To deprive of a suspect class of a fundamental right is a fundamental change in the California Constitution"--that is to say, we could use the standard I've already cited and argue that Prop. 8 does in fact somehow alter the basic government plan of California. I think this argument fails to appreciate the narrowness of Prop. 8, which, as has been noted, not only does not alter the scope or content of equal protection or marriage rights in the vast majority of cases, but only partially alters them for same-sex couples, leaving intact the finding that sexual orientation discrimination is subject to strict scrutiny and the finding that same-sex couples must be entitled to all the rights and privileges of marriage except the term itself.

Further, to say that it "depriv[es] a suspect class of a fundamental right" is perhaps to beg the question: while the Court did rule that way, its interpretation is not infallible either. Interpreting Prop. 8 as a clarification of intent on the part of the people of California, there is no necessary sense of taking away a fundamental right as opposed to adopting a (supposedly) better conception of what that fundamental right actually constitutes.

Again, I disagree with your characterization of Prop. 8. Although In re Marriage Cases constitutionalized the substantive equality of "the rights and privileges of marriage," the premise of the decision was that such entitlement was insufficient and that denying the term marriage was, in and of itself, a violation of a fundamental right and equal protection under the law.

It is not sufficient to say In re Marriage Cases could have been or was wrongly decided. It is not sufficient to say a majority disagreed with the Court's analysis. The right to marry is a fundamental right and should remain equally available to all. Equal protection requires that suspect classes not be discriminated against. The question, under even the standard you would apply, is whether depriving a suspect class of a fundamental right is a "fundamental change in the California Constitution, i.e., it is a change in its basic plan"? I say it is.

Moreover, you seem to have fallen into the trap you accused me of earlier of holding out your definition of a revision as the only definition. The Court has never so held. I think it more consistent with the caselaw to say that a revision is a change that "is quantitatively or qualitatively extensive, affecting the underlying principles on which the Constitution rests or the substantial entirety of the instrument." An amendment, by contrast, is a change that is "quantitatively AND qualitatively limited, making a modification within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed." By this standard, I submit that depriving a suspect class of a fundamental right is a revision.

Second, we could argue, on more original grounds, not that Prop. 8 is invalid by the standards for revision suggested by precedent, but that it is so on a different standard--that in a constitutional system founded on protecting the minority it makes no sense to say that minority rights can be removed by majority vote through the amendment power, even if the removal does not constitute a fundamental change. This argument sits better logically with me. For one, it can easily explain why the "suspect class" and "equal protection" elements are relevant: these are the constitutional guarantors against tyranny of the majority in a way more direct and fundamental than, say, the prohibition on cruel and unusual punishment.

First, I don't agree that the minority/majority concepts are wholly unrelated to the basic plan of California government. Thus, this analysis is largely an futher explanation of why depriving a suspect class of a fundamental right IS a revision under even your standard.

Second, I want to repeat that the amendment/revision discussion in Frierson (the cruel and unusual punishment case) was dicta in a mere plurality decision. Hanging one's hat on that peg is rather iffy.

My difficulty with it is that it ultimately strikes me as a judgment about the wisdom of the amendment process rather than an interpretation of the law itself. It may be the case that the amendment process, with its easy requirements for ballot access and voting margin, is not the best way to safeguard minority rights. It does not follow that it is absurd or unreasonable to regard it as a safeguard of minority rights, such that the only reasonable interpretation of the power must exclude depriving suspect classes of rights.

It is here that the issue of "defining rights" arises most concretely: taking constitutions as the fundamental law decided upon by the people, and thus invested with special significance and import when it comes to amendments, there is nothing inconsistent about saying both (a) constitutions must protect minority rights and (b) the minority rights that are protected may be altered via the constitutional amendment process even though that process requires only a majority vote.

It makes no sense for the whims of majority opinion to be able to deprive minorities of constitutional rights in the ordinary course of law-making. But it makes some sense for the convictions of the public to be expressible as to which rights are to be protected via mere majority vote. To violate a right protected by the Constitution and to alter the rights protected by the Constitution are different acts, invested with different public political significance: what applies to one need not apply automatically to the other.

Recall that all constitutional rights were originally brought about by majority--or supermajority!--vote. Factually speaking, the minority is always dependent on the majority to recognize its rights. The hope is that in a principled democratic society, the people will restrain themselves with protections for minority rights out of recognition for their convictions about political justice. (And, more cynically, out of fear that they might find themselves in the minority sometimes.)

Except that the law in question, the California Constitution, makes a substantive distinction between revisions and amendments that is (1) arguably critical to the instrument itself and (2) left to the judiciary to interpret and enforce. Your criticism seems to assume that Prop. 8 is a mere amendment.

Further, it does seem to me rather absurd, unreasonable, and inconsistent to say that minority rights are, despite constitutional provisions to the contrary, entirely dependent on the whims of the majority. As I argued at length earlier, it is central to our constitutional system (and an undeniable lesson of history) that minorities be given structural protections from majorities. Majorities simply cannot be trusted to protect suspect classes -- even though they can and have agreed in to the principle of equal protection in framing a constitution. On this subject, I came across this quote from U.S. Supreme Court Justice Jackson, which is consistent with the earlier argument I made about the equality principle:

“The framers of the Constitution knew that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. . . . Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.” (United States Steel Corp. v. Public Utilities Com. (1981) 29 Cal.3d 603, 612 [citing Railway Express v. New York (1949) 336 U.S. 106, 112-113 (conc. opn. of Jackson, J.)].)

That constitutional rights are by definition set forth in instruments created by the majority does not make such rights any less fundamental or inalienable. The same is true with equal protection. That the majority may recognize in the abstract that all must be treated equally and that all are entitled to certain fundamental rights IS CENTRAL to the state constitution. Thus, a change that would deprive a suspect class of fundamental rights is a change in the basic plan of California government.

Then why bother having an amendment process at all? If the only difference between changing the Constitution and passing an ordinary ballot initiative is the narrow procedural one, and that difference is insignificant, what's the point of differentiating between the two?

Um. Exactly. If an ordinary ballot initiative and a constitutional amendment are of minor difference procedurally, then why say that a constitutional amendment can have effects not allowed by statute? Isn't the whole point of the revision/amendment distinction based on the idea that mere amendments must be very limited in effect upon the state constitution?

It is one thing to say that the people may add to, improve, or better carry out the purposes of the Constitution by mere amendment. It is an altogether different thing to say that they can erase a fundamental right or take such a right from a suspect class.

(As a side note, I think your questions actually feed not only into my argument, but the AG's argument that amendments, revisions, and statutes should all be subject to the same strict scrutiny when they infringe on a fundamental right and/or discriminate against a suspect class.)


My point is subtler than that. It applies just as well to natural rights systems as any other: it is not that (necessarily) no rights exist independent of the will of government, but that legal rights are ultimately defined through political processes, not divine fiat.

We may try our best to make our legal rights match those natural rights we think exist beyond government authority. But we cannot pretend that those legal rights have a source or authority beyond ourselves, because they do not: we are the ones who decided upon them, not God, nor nature.

This is not a "philosophical" point so much as it is a reminder that we are dealing with a political change enacted by the majority that alters other earlier political changes enacted by the majority. We don't have perfect guarantors against the injustices of majority rule, a set of rules that emerge beyond legislative politics that restrain government authority.

But we do strive for such guarantors in enacting a constitution --"an instrument of a permanent and abiding nature." By enshrining certain rights and the equality principle into the Constitution, we empower the agents of the people (i.e., the judiciary) to guard such rights and equality from the vicissitudes of public opinion.

Arguably the whole point of the revision/amendment distinction is to say that -- even though provisions of the constitution may ultimately be revised by the majority they are not easily so changed. Amendments require little more than initiatives and should not be allowed to deny inalienable rights or equal protection of the law.

wouldn't the thread be more constructive if we just talk about D&D??

I am interested in particular how to break 4.0 rules with the ease that 3.0 and 3.5 rules could be broken.

It's understandable you might think that and that other people here might think what they think. After all, there is no way to verify who any of us are. Is there?

As far as anyone is concerned I'm probably some nerdy kid sitting in his parents' basement with dreams of grandeur. Is that a good summary?

Or maybe I'm some fat 40 year old sitting in front of a computer all day because he can't get laid?

Or it could be a number of other things.

Whatever people want to think is fine with me. It's a free country.

Meh. What I think of you or who you really are is irrelevant.

What is relevant is that your posts consistently demonstrate your ignorance of the relevant subject matter and your failure to grasp the fundamental principles of government. Thus, no matter who you are, you are not qualified to write a new state constitution.

It's not something you do for the money. It's something you have to volunteer to do.

It's also something that would have to be kept secret otherwise you'll have the extremists trying to jump in and influence it.

Oh, heaven forbid! :p

Can I just say, this is a fantastic, and fascinating debate.

A fine example of NS:G at it's (most serious) best.

Thank you. :fluffle:

But I think that you are now wholly responsible for encouraging me to continue making long, dense posts on this subject. :eek:

http://forums.gleemax.com/showthread.php?t=1044906

neo's sounds like 2.0
2e (not 2.0) vorpal decapitated on a natural 20.

What system are you using, because that's not how vorpal weapons work in 3.0 and 3.5 (they just take the head off of anything you're attacking on a critical hit, provided that thing is susceptible to critical hits).
3.x vorpal decapitated on a natural 20, plus a confirmed critical hit.* It could also decapitate things that weren't susceptible to critical hits, according to one ruling. It... was not very well-written.

*Thank god for that, even after threat ranges got nerfed in 3.5 you could still hit 9-20** with the right splatbooks.

**In 3.0, you could get 1-20. Seriously.

(I so totally had to look up what vorpal weapons did)

They go "snicker-snack." Duh.

i thought vorpal in 4.o let you reroll any dice that comes up max and add that in addition to the damage.

I was referencing an earlier edition for the "instant head cut off" rule.

Thank you. :fluffle:

But I think that you are now wholly responsible for encouraging me to continue making long, dense posts on this subject. :eek:

TCT... you've been making long, well thought out posts without the encouragement.

and it's NOT unappreciated... ;)

do you not know what a "legislature" is?

Legislature is the general term for a legislative body. Legislator is the member of such a body. I assumed he was talking about the latter since he pluralized it.

Meh. What I think of you or who you really are is irrelevant.

What is relevant is that your posts consistently demonstrate your ignorance of the relevant subject matter and your failure to grasp the fundamental principles of government. Thus, no matter who you are, you are not qualified to write a new state constitution.

You're free to your opinion but there are more qualified persons, in government, who disagree with you.

Um, yeah. As an active member of the CTA, I can tell you that this is bullshit. Unless by "politicking" you mean "earning a living wage" and by "regular teachers" you mean "the five public ed. teachers who don't belong to the union". Your mention of administrators as a group you're "interested in working with" is extra fail.

Oh, and by "approached" you mean "looked at the website".

Yes. Well, I can tell you that the CTA is primarily at fault for the state's financial mess.

The CTA leadership has betrayed their own members. Selling them short in return for favors from the state.
Unless the law was changed, you have to be a member of the union in order to be allowed to teach in a California public school. Because they collect the fees whether you join or not.
I wonder how many would actually join the union if they had a real choice. IE. not having money taken out of their checks when they are not members.
Second when was the last time the CTA asked your permission to use member fees to engage in political activities? Or are you aware of those activities? Surely you don't really believe your leadership is all Saintly do you?
The leadership of the CTA is just like the leaders of the world's biggest corporations: full of corrupt would be politicians.
At least the administrators actually care about education regardless of how much money is available. Can't say that with the CTA.
Everytime there is an approved ballot measure to provide money for expanding classrooms or to buy textbooks or upgrade facilities, the CTA calls a strike to demand instant pay raises to be paid for with the new bond money.

I call that taking money away from the children.

I'm not worried about offending the CTA because I know that, just like Dobson, they'll oppose any new constitution. Because it doesn't include instant pay raises that the state can't afford in a time economic depression.
We would not have to lay teachers off if the unions were willing to take pay cuts just like everyone else is having to do.

Everytime there is an approved ballot measure to provide money for expanding classrooms or to buy textbooks or upgrade facilities, the CTA calls a strike to demand instant pay raises to be paid for with the new bond money.

I call that taking money away from the children.

At least they might actually be working on a decent wage then. Teachers usually get gipped for wages compared other jobs and the cost of living.

Legislature is the general term for a legislative body. Legislator is the member of such a body. I assumed he was talking about the latter since he pluralized it.
And if you are talking about more than one legislative body...?

As in "the ......................s of the states"?

You're free to your opinion but there are more qualified persons, in government, who disagree with you.
Name some.

Oh shit, it's the Illuminati!
*dons sunglasses*
Oh fuck, there are fnords everywhere!
At least people will have the constitutional right to bear vorpal arms.
You can have my +5 longbow when you loot it from my cold, -10HP hands
You're free to your opinion but there are more qualified persons, in government, who disagree with you.

There are people in the Californian State government, more qualified than TCT(so, what? Multiple doctorates? I have no idea what kind of degree you need to practice law in America), who disagree with him. Therefore these very qualified people in government believe that you are qualified to write a new state constitution for California.


Grade-F-for-FAIL Bullshit, not fit for use anywhere ever by anyone. Put down the bovine faeces and step away, sir.

It's understandable you might think that and that other people here might think what they think. After all, there is no way to verify who any of us are. Is there?
Of course there is.

*dons sunglasses*
Oh fuck, there are fnords everywhere!

Fnord

Of course there is.



Fnord

http://farkfnord.googlepages.com/fnord.png

:eek2:

Errr....what?


If it will shut people up I'll use whatever reason I can come up with. Seperationf of Church and State seemed conveniant since marriage is pretty much both a political and religious institution. You get married by a church but you need the government's permission.


Marriage is tax exempt? Could you tell the IRS that as they always seem to want taxes out of me.

I used the wrong term, and I don't give a shit.

If it will shut people up I'll use whatever reason I can come up with. Seperationf of Church and State seemed conveniant since marriage is pretty much both a political and religious institution. You get married by a church but you need the government's permission.



I used the wrong term, and I don't give a shit.

No, you get married by the government, and can have the church execute the service if you want. You're looking at it from the wrong end.

No, you get married by the government, and can have the church execute the service if you want. You're looking at it from the wrong end.

Meh, its sunday, on sunday my cognative processer's run at like 13%

Meh, its sunday, on sunday my cognative processer's run at like 13%

Aye. The thing is that it's actually a very important distinction, as it shows exactly why religious objections based on churches being opposed to homosexuality are complete bullshit. No-one is saying that any church has to bless a same-sex marriage, just that the government - who are required not to discriminate - have to make it legal.

Edit: Sometimes semantic objections seem like pointless quibbling. Other times they are fundamental, and looking at things correctly makes all the difference. This is one of the second ones.

Aye. The thing is that it's actually a very important distinction, as it shows exactly why religious objections based on churches being opposed to homosexuality are complete bullshit. No-one is saying that any church has to bless a same-sex marriage, just that the government - who are required not to discriminate - have to make it legal.

Edit: Sometimes semantic objections seem like pointless quibbling. Other times they are fundamental, and looking at things correctly makes all the difference. This is one of the second ones.

Thats sort of what I was trying to get at with my little rant. Its all bullshit. Especially that sanctity of marriage bullshit.

Homosexuals are not trying to destroy the sanctity of anything let alone marriage, heterosexuals already fucked that concept by getting divorced every 5 minutes.

And if you are talking about more than one legislative body...?

As in "the ......................s of the states"?


Name some.

It would be legislatures

At least they might actually be working on a decent wage then. Teachers usually get gipped for wages compared other jobs and the cost of living.

The cost of living in California, according to my calculations for my area, is $52,800 a year. This includes about $2,500 for rent, $400 a month for food and hygiene, $1,000 for utilities such as electric, water, trash, cell phone, internet etc, assuming times of high fuel costs I included $400 for transportation. Toss in an extra $100 for extraneous things like going to a movie and something else that I can't remember but I add all those togetherb and multiply by 12 and got 52,800.
I have to do brief addendum because I included children for the rent but assumed a single person no children for the food bills. Include children add in $200 and multiply by 12 then add to the 52,800 and that is your cost of living with children included. Yes, if you have kids you should get more money because your burden is greater.

That does not the 100% free medical care they should get just for being government employees. I also left out the clothing allowance which actually should be included in the COL calculations.

Now what is the average salary of an teacher in California? $20,000? $30,000? How many teachers actually get $60,000 or more? Not many? Why is that? I thought the CTA was supposedly fixing that.


California is dead last on education. We get over $10,000 per pupil to spend on our schools. Yet we spend a little over $8,000 per pupil. Where is that other $2,000 going? Why is the CTA and other groups not worried about that money is going? Multiply the $2,000 by the total number of public school students in California and that's a lot of money that is missing.

It's not that we aren't getting enough money into the schools, it's that the money is being siphoned off somewhere between the taxpayers and education system.


I'd like know what a good estimate of that number is but I don't know how many students there are in California public schools but I'm betting it's a huge amount.

I'd like know what a good estimate of that number is but I don't know how many students there are in California public schools but I'm betting it's a huge amount.

http://california.educationbug.org/public-schools/

Number of Students: 6,298,928

By your estimation, that is $12,597,856,000.

However, I don't know if the cost per students factors in administrative costs, for instance, which I assume to be high as well.

An extremely interesting (and long) argument, especially that part of it conducted by TCT and Soheran - but don't anyone else (possibly USA) be discouraged - most of it is highly interesting!

As I understand TCT's argument, Prop. 8 - irrespective of its morality - significantly amends the way the Constitution of California (not the State Government) works, and therefore falls under the more extensive process - amendment, right?

If I further understand TCT correctly, the basis of his argument is that the Constitution, and previous cases before the Supreme Court of California, set down fairly specific rules for how such extensive changes to the Constitution are to be made, and that Prop. 8 has not followed those rules.

Again, if I understand TCT correctly, his argument is not that Prop. 8 is inherently right or wrong (such definitions & beliefs have no legal bearing, although TCT has repeatedly stated a personal dislike for P8), but that it should be struck down on a procedural basis. And that if its supporters are so inclined, they can follow the clearly-laid-out rules that exist for such sweeping amendments, and if it gets past on those rules, then it's in.

If I understand Soheran's arguments correctly, Soheran is stating that Prop. 8, again irrespective of his expressed personal opposition to it, is not so sweeping an amendment as to justify the more restrictive process that the plaintiffs are arguing are necessary.

I'm more inclined to agree with TCT. I understand Soheran's point: on the surface, Prop. 8 is only a fairly minor issue, true.

However, such matters run far below the surface. By passing Prop. 8, Californians have effectively said to every LGBT person in their State (which is quite a few - after all, SF is in Cali :p) "You are now a second-class citizen. I can marry the consenting adult human of my choice, but you cannot, on the basis of qualification X", "X" being sexual orientation.

As a gay man myself, I can tell you - that is extremely significant, on a great many levels. Never before this has California amended its Constitution to remove rights from a defined group of people. Surely, this is significant, even if the personal suffering that will be experienced by many LGBT people is not?

It would be legislatures
Exactly. Just like Neo Art said.

An extremely interesting (and long) argument, especially that part of it conducted by TCT and Soheran - but don't anyone else (possibly USA) be discouraged - most of it is highly interesting!

As I understand TCT's argument, Prop. 8 - irrespective of its morality - significantly amends the way the Constitution of California (not the State Government) works, and therefore falls under the more extensive process - amendment, right?
Small correction: If TCT's position is correct, then it would be a revision, not an amendment.

As I understand the situation in California, an amendment to the constitution can be passed by a simple majority in a state election, but a revision of the constitution cannot be voted on but must be made by legislative action.

So, TCT is arguing that it is a revision, not an amendment.

If I further understand TCT correctly, the basis of his argument is that the Constitution, and previous cases before the Supreme Court of California, set down fairly specific rules for how such extensive changes to the Constitution are to be made, and that Prop. 8 has not followed those rules.

Again, if I understand TCT correctly, his argument is not that Prop. 8 is inherently right or wrong (such definitions & beliefs have no legal bearing, although TCT has repeatedly stated a personal dislike for P8), but that it should be struck down on a procedural basis. And that if its supporters are so inclined, they can follow the clearly-laid-out rules that exist for such sweeping amendments, and if it gets past on those rules, then it's in.

If I understand Soheran's arguments correctly, Soheran is stating that Prop. 8, again irrespective of his expressed personal opposition to it, is not so sweeping an amendment as to justify the more restrictive process that the plaintiffs are arguing are necessary.

I'm more inclined to agree with TCT. I understand Soheran's point: on the surface, Prop. 8 is only a fairly minor issue, true.

However, such matters run far below the surface. By passing Prop. 8, Californians have effectively said to every LGBT person in their State (which is quite a few - after all, SF is in Cali :p) "You are now a second-class citizen. I can marry the consenting adult human of my choice, but you cannot, on the basis of qualification X", "X" being sexual orientation.

As a gay man myself, I can tell you - that is extremely significant, on a great many levels. Never before this has California amended its Constitution to remove rights from a defined group of people. Surely, this is significant, even if the personal suffering that will be experienced by many LGBT people is not?
Aside from clarifying that TCT was presenting the argument of the legal team challenging Prop 8, not his own argument although he agrees with their argument, that is how I read it as well.

I am also inclined to agree with the position presented by TCT because Prop 8 literally strips LGBT California citizens of equal rights, and in my opinion, by doing so, it fundamentally changes the purpose of the California constitution. I haven't looked it up in a while, but I believe that somewhere in its 100+ pages, the CA constitution states that part of its purpose is to provide for the rights of the state's citizens. By stripping rights away from a group of citizens, it can be argued reasonably, I think, that the constitution is no longer functioning as a document that provides and protects rights. And that would affect not just how LGBT citizens are treated by it or relate to it. Thus the purpose and function of the Constitution is changed. I do not believe that can reasonably be called a mere amendment. It is, rather, a fundamental revision of the document.

That's how I see it, at any rate.

If I understand Soheran's arguments correctly, Soheran is stating that Prop. 8, again irrespective of his expressed personal opposition to it, is not so sweeping an amendment as to justify the more restrictive process that the plaintiffs are arguing are necessary.
I think actually Soheran is saying, not so much that Prop 8 is not so sweeping as to require the more difficult process, but that it might not be: the language about "revision" and "amendment" is not well-defined, and the Cal. Supremes might come down either way, and it is no good to be pretending that the legal issue is simple and is bound to be resolved the "right" way.

Small correction: If TCT's position is correct, then it would be a revision, not an amendment.

As I understand the situation in California, an amendment to the constitution can be passed by a simple majority in a state election, but a revision of the constitution cannot be voted on but must be made by legislative action.

<snip for length>

Thank you for the correction. I wasn't sure which name applied to which idea. However, a revision, if I understand correctly, is done by legislative action combined with a direct referendum. Not just legislative action, and not just the referendum.

Thank you for the correction. I wasn't sure which name applied to which idea. However, a revision, if I understand correctly, is done by legislative action combined with a direct referendum. Not just legislative action, and not just the referendum.That's right.

What muddles things is that a lot of the California cases on what it takes to trigger the "revision" language were from back when the procedure was even more arduous, requiring a whole constitutional convention to be called.

I think actually Soheran is saying, not so much that Prop 8 is not so sweeping as to require the more difficult process, but that it might not be: the language about "revision" and "amendment" is not well-defined, and the Cal. Supremes might come down either way, and it is no good to be pretending that the legal issue is simple and is bound to be resolved the "right" way.

Soheran can more than ably speak for Soheran, but I think we were discussing at least four semi-distinct issues:

1. As you say, Soheran pointed out that the legal issue is not clear-cut and Prop. 8 opponents shouldn't act like it. I believe I completely agreed with this.

2. Soheran find the arguments of the Prop. 8 proponents that Prop. 8 is a revision less than persuasive. I tried to defend those arguments and we debated the relevant points.

3. I (and others) objected to Ken Starr's statements about rights being wholly dependent on popular will and Soheran made some defense of those statements.

4. Soheran objected to the AG's argument that the California Constitution places certain rights beyond the reach of the majority and I made some defense of that argument.

But (and this is the AG's argument that I have said I don't find wholly convincing) no legislative action, whether it be a statute, an amendment, or a revision, can impinge on a fundamental, inalienable right without being subject to strict scutiny.

I'm not sure how this alters what I have said.

"Strict scrutiny" is the standard by which courts evaluate violations of a particularly important extant constitutional right. To say that an amendment or a revision must pass strict scrutiny is to say that it must be evaluated on terms relative to (founded on) the existence of that right in general (even if we accept that exceptions in principle may be made in certain exceptional circumstances, as is always true for any kind of legislative enactment.)

That is to say, an alteration of the provisions must itself be consistent with those very provisions: it can never supersede them but must always be inferior, in the same way that all non-constitutional law is inferior to the "fundamental law" of a constitution (even though non-constitutional law can, in exceptional cases, abridge fundamental rights.)

It is in this sense that the AG's argument assumes the infallibility of the framers of California's Constitution: any alteration to certain of their enactments must be implemented through the standards implied by those very enactments.

Inherent in its development, however, was the idea that some rights are more fundamental than others and require greater justification for infringement.

Of course, but this still does not acknowledge the distinction between an ordinary legislative enactment and a constitutional amendment. What is true for one need not be true for another.

We have a non-exhaustive list of rights that cannot be violated by government that the people expressly put beyond the reach of the government when they founded our government

Then we are back to the fundamental element of this whole thing: if the people are those with the authority to enact such restraints, then they are also the ones with the authority to remove them.

The government, in its ordinary legislative processes, certainly may not do so: that is the point of a constitution, and you rightly note that this element is especially prominent when it comes to the fundamental rights of minorities. But may the people do so via constitutional alteration? That is a separate question, and its answer, as I have repeated so insistently, must be "yes" on the principle that all constitutional authority ultimately resides with the people.

Second, how much of a denial of a fundamental right and/or equal protection must there be to require a revision, as opposed to a mere amendment? Is it OK to obliterate one right, but not two? Discriminate against one suspect class, but not two?

There ought to be a clearer legal test of "narrowness" than there is now, but in the absence of one I can only give my intuitions: the complete obliteration of any fundamental right (perhaps any constitutional right at all) would be good enough for me to count it a revision. The removal of such a right from a particular context I would count as an amendment.

It is worth being clear about language here: the fact of the matter is that California still has substantive equal protection guarantees, even, as a matter of fact, for same-sex couples, so we are speaking less of an "obliter[ation]" of a right than of a modification of one.

Third, I've already partially responded regarding the degree to which Prop. 8 contradicts the decision in In re Marriage Cases.

And your response seems to rest on the practical political effect of the case, which is (as far as I am concerned) beside the point.

I know that California had (and still has) "substantively equivalent" legal rights for same-sex domestic partnerships prior to In re Marriage Cases, and that the crucial element (politically speaking) of the case was the insistence that the denial of "marriage" as a category was enough to violate equal protection. But insofar as the case concerns California constitutional law it goes further: it suggests (a) that sexual orientation discrimination is liable for strict scrutiny and (b) that marriage discrimination does not pass strict scrutiny. The first element, Prop. 8 does not affect. The second element, Prop. 8 merely restrains from applying to the category of "marriage" specifically. In the event that California for some reason nullified its domestic partnership laws, In re Marriage Cases would surely be fairly strong precedent in favor of forcing their retention--if, after all, the state cannot even justify against strict scrutiny the comparatively narrow restriction of denying the category of "marriage", surely it cannot justify the even more discriminatory policy of denying all the rights and benefits of marriage.

The point of this increasingly-tangential line of discussion is to highlight the fact that not only are equal protection rights in general not destroyed by Prop. 8, but that equal protection rights in the specific context of legal recognition for same-sex relationships remain (even with Prop. 8) fairly strong (certainly as far as US states go!)

How exactly did Prop. 115 deprive the judicial branch of authority and cause "devastating effects"? By providing that "California courts in criminal cases would no longer have authority to interpret the state Constitution in a manner more protective of defendants' rights than extended by the federal Constitution, as construed by the United States Supreme Court."

...and we are speaking here of a wide range of rights, not just one, and a wide range of applications (any time the state courts disagree with the federal courts), not just one.

Indeed, the distinction in terms of applications is qualitative as well as quantitative: Prop. 8 in no sense restricts in principle the general authority of California courts to interpret equal protection rights. It does not, indeed, have to do with the authority of the courts at all, which never extends beyond interpreting constitutional rights as written. Prop. 115, on the other hand, restricted the courts' general authority by requiring that in every case within the relevant rights they defer to the federal courts (if the federal courts had a narrower interpretation).

One could easily argue that making the state constitutional procedural rights of California defendants coextensive with the U.S. Constitution is less devastating than depriving a suspect class of a right altogether.

The right at issue here is not the right of gay (and bisexual) people in same-sex relationships to have marriage equality with people in opposite-sex couples. The right (rights, more properly) at issue here are equal protection and marriage rights more broadly.

Have the people of California been deprived entirely of the constitutional right to marry or the constitutional right to equal protection? No: it has simply been modified as it applies to the case of their marrying a person of the same sex.

Indeed, imagine that Prop. 8 were identical to Prop. 115 and demanded that California courts not go further than federal ones with respect to same-sex marriage: as far as the rights of same-sex couples go, they'd be in an even worse place, since no federal court has ruled in favor of marriage or civil unions. This despite the fact that the US Constitution also guarantees equal protection and the right to marry.

(This does not prove my interpretation of the revision/amendment question, but it does show that Prop. 115 cannot be interpreted to have been less devastating than Prop. 8.)

The revision in Raven did not "alter[] in any fundamental aspect the character of the relations between the political entities of California" but rather deprive the California judiciary of the power to independently extend procedural rights beyond those mirrored in the U.S. Constitution.

Which, as a modification of the judiciary's authority over a broad range of rights, affects the relations "between the political entities of California" (the judicial and the executive/legislative branches) in a way Prop. 8 does not.

It is just as arguable that Prop. 8 deprives the judiciary of the power to enforce a fundamental right AND to ensure equal protection under the law.

No, it merely alters the content of the "fundamental right" and the "equal protection" it is to enforce.

You say "abolishing equal protecting in its entirety" goes to far, but depriving a suspect class of a fundamental right does not.

No, on consideration, I find that absurd. If abolishing a fundamental right for all is a revision, then abolishing it for some is a revision also. (I'm tempted also, perhaps, to distinguish between fundamental rights, classifying which have political significance as part of a "government plan" and which merely serve as important individual rights, but I'll spare this already extensive and complicated discussion that extra angle.)

The way out for the legal defense of Prop. 8 is to make the pedantic (and perhaps a bit disingenuous) argument that no individual is in fact deprived of a fundamental right in its entirety. Everyone still has marriage rights; everyone still has equal protection rights. It's just that certain possible implications of those rights do not hold, as has always been and will always be for both of those rights (and, indeed, all rights.) No right is absolute.

On this interpretation, Prop. 8 is a sort of "short-cut" to allow marriage discrimination against same-sex couples to skip strict scrutiny analysis. As a restriction of a particular kind of marriage, it does not abolish anyone's right to marry (any more than other restrictions on who people can and cannot marry do); as a restriction of marriage alone, it does not abolish anyone's right to equal protection (any more than other legal distinctions between people do).

Now, I've acknowledged that this is "perhaps a bit disingenuous"... but I'd suggest that the perception of disingenuousness is rooted in my (and, assuming you share said perception, presumably your) recognition that Prop. 8 is rationally absurd: it does not share the good reasons behind the other exceptions we make for those rights. But this is not the question before the Court. Without question, Prop. 8 was an irrational and morally despicable attack, motivated by bigotry, on same-sex couples and gays, lesbians, and bisexuals more broadly--but this, unfortunately (and I mean that sincerely, not condescendingly), does not make it a revision.

Would a change that deprived African-Americans of the right to free speech be an amendment or a revision?

Revision, in accordance with my above analysis.

They are, however, closely related. Depriving a suspect class of a fundamental right (or even a critical aspect of a fundamental right) by mere majority vote is to say that suspect classes are not guaranteed equal protection.

"Guaranteed" by what? If by the Constitution, then to say that a fundamental right can be modified by constitutional amendment is not to deny any such thing, but merely to affirm that the Constitution that guarantees such rights can be altered.

Again, I disagree with your characterization of Prop. 8. Although In re Marriage Cases constitutionalized the substantive equality of "the rights and privileges of marriage," the premise of the decision was that such entitlement was insufficient and that denying the term marriage was, in and of itself, a violation of a fundamental right and equal protection under the law.

As I have said, your assessment of the decision's "premise" seems rooted in its political and legislative effect (and thus in the focus of its language), while I am concerned with its legal implications in abstract (so as to answer how much of the constitutional rights to equal protection and marriage have actually been abridged by Prop. 8).

By this standard, I submit that depriving a suspect class of a fundamental right is a revision.

I don't see how, considering that Prop. 8 does not abolish equal protection or marriage rights but merely modifies them in a way that (according to the people of California) "better carr out the purpose for which it was framed."

Indeed, this statement of the revision/amendment distinction seems to be at most merely a restatement of a narrowness standard--perhaps leaning toward a broader definition of "revision", but along the same spectrum. The value judgments it contains within it ("improvement", "better") are surely not up to the court's discretion, because they are precisely what the political battle about an amendment concerns: it is not the Court's job to decide what is and is not a good alteration to the Constitution. These are then more reasonably interpreted as standards of intent, and it seems clear that the intent of the people of California was indeed to improve, not to abolish, the guarantees of equal protection and marriage.

We've been extensively over the "qualitatively limited" aspect and no one (to my knowledge) argues that Prop. 8 is anything but "quantitatively limited."

First, I don't agree that the minority/majority concepts are wholly unrelated to the basic plan of California government. Thus, this analysis is largely an futher explanation of why depriving a suspect class of a fundamental right IS a revision under even your standard.

Prop. 8 does not affect the general legal relationship between minorities and majorities; the definition of amendments and revisions does.

Second, I want to repeat that the amendment/revision discussion in [I]Frierson (the cruel and unusual punishment case) was dicta in a mere plurality decision.

Fair enough, but my understanding is that there are other examples; Prop. 8 is hardly the first instance that a modification of a constitutional right via amendment has come before the CA Supreme Court.

Except that the law in question, the California Constitution, makes a substantive distinction between revisions and amendments that is (1) arguably critical to the instrument itself and (2) left to the judiciary to interpret and enforce. Your criticism seems to assume that Prop. 8 is a mere amendment.

It assumes that Prop. 8 is a mere amendment on criteria other than the majority/minority element, and directly addresses that objection to its amendment status.

Well, in fairness, I suppose it goes further than that, in effect putting the burden of proof on the other side: my argument is founded on the assumption that if it is reasonable for amendments passable by mere majority vote to modify important minority rights, then (in the absence of either explicit constitutional language or explicit case law mandating a minority/majority test for the amendment/revision distinction) Prop. 8 cannot be deemed a revision on those grounds.

Further, it does seem to me rather absurd, unreasonable, and inconsistent to say that minority rights are, despite constitutional provisions to the contrary, entirely dependent on the whims of the majority.

I have explicitly distanced myself from "entirely" and I have tried to show that the logic of the amendment process extends beyond mere "whims."

As I argued at length earlier, it is central to our constitutional system (and an undeniable lesson of history) that minorities be given structural protections from majorities.

Right, but to rest your argument on this alone begs the question as to how much and what kind of "structural protections"--and this question-begging is especially fallacious because even if you can effectively argue that the best implementation of such "protections" would disallow amendments of minority rights by majority vote (and undoubtedly you can), this is really a political argument (for either abolishing the amendment provision or making its rules more stringent), not a legal argument.

On this subject, I came across this quote from U.S. Supreme Court Justice Jackson, which is consistent with the earlier argument I made about the equality principle:

Yes, Rousseau said it two centuries before, what of it? I don't believe I've denied that equal protection is a fundamental right. The harder legal (and ultimately, insofar as we bring the "ought" angle in, political-theoretical) question is what kind of safeguards equal protection is to have.

At the risk of again moving away from the narrowness of our question, the only ideal answer to this question is "Have a democratic political culture that does not tolerate legislative enactments that conflict with equal protection"--a democratic polity that, in fact, will vote not according to their private interest but according to what is right for all, that will in good faith subject their own judgments to a kind of "strict scrutiny" (or at least a rational basis test :)).

Until we have such a thing--and we are not likely ever to have it perfectly, though we can and have made much progress--the majority/minority problem will remain, and it will always remain as a problem, not as something to which we have an existing perfect solution. To point out that an amendment process allowing abominations like Prop. 8 is not an amendment process that fully safeguards minority rights ignores the facts that (a) no system fully safeguards minority rights (certainly no system founded upon the authority of the people) and that (b) any protection for minority rights is effectively a restraint upon popular sovereignty, especially to the extent that it restrains modification of the Constitution itself.

That is to say, what we really have is not an inconsistency--"We are supposed to protect minority rights and this interpretation does not"--but a marginal analysis between two elements that are at tension with one another. And the particular feature of a marginal analysis is that it is very hard to declare that one point somewhere in the middle is an absurd resolution while another point somewhere in the middle is the only rational alternative.

What I have tried to argue is that, while the particular resolution that would allow Prop. 8 does not perfectly safeguard minority rights (as no reasonable resolution does), it does not deny them so utterly that it is beyond the range allowable by reason--not to the degree that we may say it must be a revision simply because of the character of "minority rights" and the constitution's role in protecting them.

That the majority may recognize in the abstract that all must be treated equally and that all are entitled to certain fundamental rights IS CENTRAL to the state constitution. Thus, a change that would deprive a suspect class of fundamental rights is a change in the basic plan of California government.

This is the fallacy of division: just because equal protection itself "is central" does not mean that any modification at all of equal protection also "is central."

If an ordinary ballot initiative and a constitutional amendment are of minor difference procedurally, then why say that a constitutional amendment can have effects not allowed by statute?

Because it is a constitutional amendment, not an ordinary statute--and surely you would not argue that the Court's precedents go that far in restricting the extent of amendments!

It is not reasonable to read the provision for constitutional amendments as merely a provision for statutes called "constitutional amendments."

It is one thing to say that the people may add to, improve, or better carry out the purposes of the Constitution by mere amendment. It is an altogether different thing to say that they can erase a fundamental right or take such a right from a suspect class.

But surely you would agree that to limit amendments to the realm of adding to, improving, or better carrying out "the purposes of the Constitution" says nothing at all about the question of minority v. majority rights. (Well, you might say that to protect minority rights is among the purposes of the Constitution, but, then, no minority right is unlimited and they are all subject to restricting considerations that also involve "purposes of the Constitution"--the standard does not purely point to a majority/minority standard for resolving amendment/revision questions.) And on your reading here we are still left with an important distinction between ordinary statute and constitutional amendment--despite the lack of a clear procedural distinction. Which means it is hardly absurd to maintain that the same applies to Prop. 8, even leaving aside the empirical fact that it seems to have.

As I understand TCT's argument, Prop. 8 - irrespective of its morality - significantly amends the way the Constitution of California (not the State Government) works, and therefore falls under the more extensive process - amendment, right?

To clarify: as Muravyets has already noted, the more extensive process is "revision", not "amendment." It is probably not easy for anyone to follow TCT and me, but it is undoubtedly more so without keeping those straight. :)

Again, if I understand TCT correctly

If I understand Soheran's arguments correctly

My understanding is that you pretty much have both of us down.

By passing Prop. 8, Californians have effectively said to every LGBT person in their State (which is quite a few - after all, SF is in Cali :p) "You are now a second-class citizen. I can marry the consenting adult human of my choice, but you cannot, on the basis of qualification X", "X" being sexual orientation.

While I agree that the ultimate logic of Prop. 8 and the bigotry behind it certainly suggest a designation of people in same-sex relationships (and people who seek to enter into them) as "second-class citizen[s]", that is not the legal issue as pertains to a constitutional amendment. As far as the best interpretation of what does and does not constitute equal protection, I adamantly side with the California Supreme Court in In re Marriage Cases--prohibiting same-sex marriage is a clear violation of equal protection.

But to admit this, that marriage discrimination against same-sex couples infringes on equal protection, is not the same as to say that marriage discrimination against same-sex couples abolishes equal protection in its entirety. The former (I have argued) is an amendment, while the latter is a revision.

As a gay man myself, I can tell you - that is extremely significant, on a great many levels.

But now we are getting to the realm of "is" and "ought"--while I am perfectly content to affirm my agreement with moral condemnations of Prop. 8 and its consequences in the harshest of terms (and, indeed, to make them myself), it is a dangerous fallacy to conflate "morally wrong" with "legally wrong."

On the same grounds, despite being myself rather positively inclined (physically and morally) toward certain forms of non-procreative sex with other men, I will on occasion defend conservative interpretations of religious tradition and texts as prohibiting such activities--on grounds of simple intellectual honesty, with a dash of anti-religious sentiment mixed in.

Never before this has California amended its Constitution to remove rights from a defined group of people.

Not in a directly parallel case, no, which highlights the ambiguity of this one but does not clearly support either side.

I think actually Soheran is saying, not so much that Prop 8 is not so sweeping as to require the more difficult process, but that it might not be: the language about "revision" and "amendment" is not well-defined, and the Cal. Supremes might come down either way, and it is no good to be pretending that the legal issue is simple and is bound to be resolved the "right" way.

Certainly (and most emphatically) that--but my position does extend to the point of arguing that, while the legal issue is not clear on either side, the legal reasons tend more toward upholding than overturning it.

*snip*

This is an excellent summary.

But to admit this, that marriage discrimination against same-sex couples infringes on equal protection, is not the same as to say that marriage discrimination against same-sex couples abolishes equal protection in its entirety.
But: establishing the principle that EVERY legal guarantee to any minority group can be abolished by 50%+1 at any time DOES abolish equal protection in its entirety.
For example, if a jurisdiction adopts the terminate-at-will rule when it hadn't before, then your right to continued employment has been abolished; it is irrelevant that you haven't been fired yet and still have a job, your right is gone. You seem to be saying that since various protections for same-sex couples are still on the books, then same-sex couples still have constitutional rights: no they don't, not if Prop 8 is upheld, since every such protection can be abolished by a simple majority at any time.

You get married by a church but you need the government's permission.

It's a good thing this isn't true, because if a church were required for marriage then I'd be a bastard!

It's a good thing this isn't true, because if a church were required for marriage then I'd be a bastard!

You atheist bastard!!!!

It's a good thing this isn't true, because if a church were required for marriage then I'd be a bastard!
that was my (elderly) aunt's opinion of my son when i didnt get married in the church and didnt take my husband's name--that i couldnt possibly have been married so he had to be a bastard (not that she used that word or said it to my face)

i didnt hold it against her. its just a funny quirk.

While I agree that the ultimate logic of Prop. 8 and the bigotry behind it certainly suggest a designation of people in same-sex relationships (and people who seek to enter into them) as "second-class citizen[s]", that is not the legal issue as pertains to a constitutional amendment. As far as the best interpretation of what does and does not constitute equal protection, I adamantly side with the California Supreme Court in In re Marriage Cases--prohibiting same-sex marriage is a clear violation of equal protection.

But to admit this, that marriage discrimination against same-sex couples infringes on equal protection, is not the same as to say that marriage discrimination against same-sex couples abolishes equal protection in its entirety. The former (I have argued) is an amendment, while the latter is a revision.

Soheran, this is entirely the point. Until Prop. 8, the Constitution of California held certain freedoms and rights to be inalienable. People debated what each of those rights were, but that they were inalienable was not open to question.

Then, when the Cali Supreme Court decided (in accordance with the Federal Constitution and SCOTUS decisions on the subject) that marriage is an inalienable right, along came Prop. 8, saying effectively that rights were no longer inalienable, but now subject to 50%+1 approval by the majority.

No matter what right held by whom is at stake, that is a *very* significant revision to the Constitution's entire purpose. After all, the Constitution's entire purpose is to guarantee the rights of people (Sure, it's meant primarily to guarantee them against the government, but....). I can't see any other way of looking at it. Today, sure, it's just a rewording of marriage to accommodate bigotry at the expense of a segment of the population. What about tomorrow? Prop. 8 sets a very significant and dangerous precedent. Argument 1 concluded.

But if the SCOTUS thought this way, that marriage is *not* an inalienable right, then Loving v. Virginia would have been decided the other way. SCOTUS' decisions constitute a binding precedent on the Cali Supreme Court, under standard legal doctrine. And SCOTUS decided that marriage to the consenting adult human of your choice is an inalienable right.

Therefore, even if Cali's Constitution is satisfied with an amendment (which I don't believe - Argument 1), the FEDERAL Constitution is offended by Prop. 8, and it trumps the Californian Constitution. Argument 2 concluded.

P.S. It's entirely possible that DOMA would be struck down as unconstitutional in a less conservative court than today's.

Soheran, this is entirely the point. Until Prop. 8, the Constitution of California held certain freedoms and rights to be inalienable. People debated what each of those rights were, but that they were inalienable was not open to question.

Then, when the Cali Supreme Court decided (in accordance with the Federal Constitution and SCOTUS decisions on the subject) that marriage is an inalienable right, along came Prop. 8, saying effectively that rights were no longer inalienable, but now subject to 50%+1 approval by the majority.
Are you sure you mean 'inalienable'?

Something cannot be inalienable and then suddenly not be; by necessity, if something is inalienable, it cannot be repudiated.

Soheran, this is entirely the point. Until Prop. 8, the Constitution of California held certain freedoms and rights to be inalienable. People debated what each of those rights were, but that they were inalienable was not open to question.

Then, when the Cali Supreme Court decided (in accordance with the Federal Constitution and SCOTUS decisions on the subject) that marriage is an inalienable right, along came Prop. 8, saying effectively that rights were no longer inalienable, but now subject to 50%+1 approval by the majority.

No matter what right held by whom is at stake, that is a *very* significant revision to the Constitution's entire purpose. After all, the Constitution's entire purpose is to guarantee the rights of people (Sure, it's meant primarily to guarantee them against the government, but....). I can't see any other way of looking at it. Today, sure, it's just a rewording of marriage to accommodate bigotry at the expense of a segment of the population. What about tomorrow? Prop. 8 sets a very significant and dangerous precedent. Argument 1 concluded.

But if the SCOTUS thought this way, that marriage is *not* an inalienable right, then Loving v. Virginia would have been decided the other way. SCOTUS' decisions constitute a binding precedent on the Cali Supreme Court, under standard legal doctrine. And SCOTUS decided that marriage to the consenting adult human of your choice is an inalienable right.

Therefore, even if Cali's Constitution is satisfied with an amendment (which I don't believe - Argument 1), the FEDERAL Constitution is offended by Prop. 8, and it trumps the Californian Constitution. Argument 2 concluded.

P.S. It's entirely possible that DOMA would be struck down as unconstitutional in a less conservative court than today's.

I agree with much of what you say, but you confuse the matter and are incorrect in referring to SCOTUS or the U.S. Constitution as relevant to the issues at stake in the Prop. 8 case.

In re Marriage Cases was based wholly on the California Constitution and the challenges to Prop. 8 are based wholly on the California Constitution.

One could very well argue that Prop. 8 is contrary to the U.S. Constitution based on Loving v. Virginia and other cases, but no one has raised that issue. My understanding that this is in large part a deliberate wish to avoid SCOTUS ruling on the matter given the current conservative composition of that court.

Are you sure you mean 'inalienable'?

Something cannot be inalienable and then suddenly not be; by necessity, if something is inalienable, it cannot be repudiated.

The California Constitution expressly refers to protected rights as inalienable.

when are they due to rule on this?

when are they due to rule on this?

don't rush justices.

when are they due to rule on this?

Within 90 days of the oral argument that occurred on March 5, 2009.

I believe that means by June 2, 2009 (but I may have counted incorrectly).

Within 90 days of the oral argument that occurred on March 5, 2009.

I believe that means by June 2, 2009 (but I may have counted incorrectly).

Any speculation which way they're leaning, based on arguments or questions?

The California Constitution expressly refers to protected rights as inalienable.
Ahhh.

This seems odd if those rights are subject to revision.

*may have missed the whole point*

Ahhh.

This seems odd if those rights are subject to revision.

*may have missed the whole point*

Not really. The Cali Constitution explicitly holds them to be inalienable, which is why Prop. 8 is significant enough to warrant the more rigourous process of alteration - it effectively rewrites the purpose of the Constitution by saying that such rights are no longer inalienable, but subject to a simple 50%+1 majority.

But: establishing the principle that EVERY legal guarantee to any minority group can be abolished by 50%+1 at any time DOES abolish equal protection in its entirety.

Prop. 8, as a piece of legislation, can't set any precedent or establish any such principle. The legal question is retroactive: does the California Constitution (as it currently stands and has stood since the last modification of the amendment/revision rules) prohibit amendments like Prop. 8?

along came Prop. 8, saying effectively that rights were no longer inalienable, but now subject to 50%+1 approval by the majority.

No. If Prop. 8 proponents are correct in their interpretation of the amendment provision, then rights have never been "inalienable" in the sense you suggest. Indeed, rights never are, because of the nature of constitutions.

This is at the heart of the ambiguity of the issue.

the FEDERAL Constitution is offended by Prop. 8, and it trumps the Californian Constitution.

The people litigating same-sex marriage do not want to take this to the federal level because they are afraid they will lose and set precedent against them.

I think they have a strong case on the merits, but their political analysis of the present Court seems accurate.

Are you sure you mean 'inalienable'?

This was my reaction, too (to this issue in general, I mean.)

To get away from the strict legalities of this, as some of my arguments may already have suggested, I find the entire project of protecting "natural rights" in constitutions that are (materially, historically speaking) products of positive law to be a bit disingenuous.

The rights in themselves may be "natural", but constitutional provisions, by their very nature, never are.

Soheran, I see your point - but I don't think that the Prop. 8 proponents have a leg to stand on.

The Constitution explicitly states that there are inalienable rights.

Prop. 8 is effectively saying that they aren't.

That's a fairly significant alteration by any definition.

when are they due to rule on this?
First they have to read through all the relevant threads on NSG and other message-boards and blogs, lest they miss an utterly crucial insight.

Prop. 8 is effectively saying that they aren't.

Well, no. Prop. 8 is effectively stating that same-sex marriage is not among (or an implication of) those "inalienable rights."

Not the same thing. Indeed, if we really believe in natural, inalienable rights, we must accept that they are independent of constitutional provision--and thus it hardly qualifies as a reason to designate constitutional provisions as being immune to modification.

http://www.foxnews.com/wires/2009Mar16/0,4670,GayMarriage,00.html

I didn't want to start a new thread, but its relevant to the general topic.

http://www.foxnews.com/wires/2009Mar16/0,4670,GayMarriage,00.html

I didn't want to start a new thread, but its relevant to the general topic.

*Yawn* Yet another band of bigots desperate to be able to continue their bigotry - all in the name of "protecting the children", of course.

Very substantial, I'm sure.

http://www.foxnews.com/wires/2009Mar16/0,4670,GayMarriage,00.html

I didn't want to start a new thread, but its relevant to the general topic.

All this hate! Can't we all just get along?

Who wants a hug?

All this hate! Can't we all just get along?

Who wants a hug?

That depends, is it a god-fearing REAL-American hug, or one of those gay liberal hugs?

*Yawn* Yet another band of bigots desperate to be able to continue their bigotry - all in the name of "protecting the children", of course.

Very substantial, I'm sure.

A mother and father for every child! Ban single parent families! Ban multiple child families!

*Yawn* Yet another band of bigots desperate to be able to continue their bigotry - all in the name of "protecting the children", of course.

Very substantial, I'm sure.

A rigorous, unchanging, conservative Christian definition of marriage.

Protecting the Children... somehow...

A mother and father for every child! Ban single parent families! Ban multiple child families!
Whenever I encounter one of these groups that are shrilling about how children need a mother and a father, I end up thinking about war widows.

How long should a mother be legally permitted to stay single after her husband is killed? If a father's wife is gunned down while serving her country, should he be legally required to remarry within a certain time frame or else their kids will be taken away and fostered in a family that has two parents?

The homophobes always try to wiggle out of this question by saying that what they REALLY meant was that it's BETTER for a kid to have both parents, but it's not ESSENTIAL. Yet they're trying to legally ban gay families and they claim it's all about the childrenz. So...why not legally require that widows remarry? For the children?

Well California's court has ruled.

they have determined that the solution is putting me in charge of the state.

i am flying down next week as overlord of California. I expect a preliminary palace to have been build

Whenever I encounter one of these groups that are shrilling about how children need a mother and a father, I end up thinking about war widows.

How long should a mother be legally permitted to stay single after her husband is killed? If a father's wife is gunned down while serving her country, should he be legally required to remarry within a certain time frame or else their kids will be taken away and fostered in a family that has two parents?

She should probably marry her brother in law.

The hypocrisy of organised religion (note: I said *organised* religion - one of Marx's biggest blunders was failing to distinguish between personal faith and organised priests) never fails to astound me.

The homophobes always try to wiggle out of this question by saying that what they REALLY meant was that it's BETTER for a kid to have both parents, but it's not ESSENTIAL. Yet they're trying to legally ban gay families and they claim it's all about the childrenz. So...why not legally require that widows remarry? For the children?

Something about the grieving process... uh... and uh... something else about remembering and being faith to the departed husband, and how marrying so soon might show that she is an unfaithful harlot who can't keep her legs shut... err...ah... well... hmm... :$ ;)

(note: I said *organised* religion - one of Marx's biggest blunders was failing to distinguish between personal faith and organised priests)

i don't think marx made the mistake you are attributing to him

Something about the grieving process... uh... and uh... something else about remembering and being faith to the departed husband, and how marrying so soon might show that she is an unfaithful harlot who can't keep her legs shut... err...ah... well... hmm... :$ ;)
All of which are totally reasonable in the case of a mother who's lost her husband. After all, she was created to be her husband's helpmeet and to serve him as men serve God, and it makes sense for her to spend a proper amount of time in mourning. ;)

But a father who loses his wife?! Surely, Kry, you wouldn't suggest that a man be forced to endure without a helpmeet to clean his home, raise his children, and service him sexually?! That's...that's...why that's downright ANTI-BIBLICAL!

All of which are totally reasonable in the case of a mother who's lost her husband. After all, she was created to be her husband's helpmeet and to serve him as men serve God, and it makes sense for her to spend a proper amount of time in mourning. ;)

But a father who loses his wife?! Surely, Kry, you wouldn't suggest that a man be forced to endure without a helpmeet to clean his home, raise his children, and service him sexually?! That's...that's...why that's downright ANTI-BIBLICAL!

Unless the war spreads to suburban kitchens, we shouldn't have to worry about too many male war widows.

Unless the war spreads to suburban kitchens, we shouldn't have to worry about too many male war widows.
I'm hoping this is just a joke that fell flat. :P

http://www.ontopmag.com/article.aspx?id=3361&MediaType=1&Category=26

Well, the legislature seems to agree that Prop 8 was illegally passed.

I'm hoping this is just a joke that fell flat. :P

It's contextual - if all the women created to be helpmeets, etc... start turning up dead, while they were serving their husbands as men serve god, etc... then the war must have come to the suburban kitchen (where the helpmeet would, obviously, be - making fried-egg sandwiches, etc).

http://www.ontopmag.com/article.aspx?id=3361&MediaType=1&Category=26

Well, the legislature seems to agree that Prop 8 was illegally passed.
Interesting. The pressure ratchets up.

All of which are totally reasonable in the case of a mother who's lost her husband. After all, she was created to be her husband's helpmeet and to serve him as men serve God, and it makes sense for her to spend a proper amount of time in mourning. ;)

But a father who loses his wife?! Surely, Kry, you wouldn't suggest that a man be forced to endure without a helpmeet to clean his home, raise his children, and service him sexually?! That's...that's...why that's downright ANTI-BIBLICAL!

He can hire a nanny, and get take-out. As for the last, isn't that why God invented prostitution? See, latter problem solved. ;)

http://www.ontopmag.com/article.aspx?id=3361&MediaType=1&Category=26

Well, the legislature seems to agree that Prop 8 was illegally passed.

Interesting. The pressure ratchets up.

For multiple reasons, this neither should nor will influence the Court, IMHO.

For multiple reasons, this neither should nor will influence the Court, IMHO.

If this goes through and is signed into law before the court decides, what effect will it have on the case? While it might not affect the actual decision, couldn't it render the argument moot?

If this goes through and is signed into law before the court decides, what effect will it have on the case?

It has no legal force. It's just a statement of the legislature's opinion.

It has no legal force. It's just a statement of the legislature's opinion.

Many thanks.

For multiple reasons, this neither should nor will influence the Court, IMHO.

I wouldn't expect it to, but it's interesting nonetheless.

For multiple reasons, this neither should nor will influence the Court, IMHO.
I wasn't thinking of the court. I was thinking of the voting public, the relationship of the pro-Prop-8 crowd to the rest of California, and future political action in regards to this matter should the court decide that Prop 8 was not a revision.

Well California's court has ruled.

they have determined that the solution is putting me in charge of the state.

i am flying down next week as overlord of California. I expect a preliminary palace to have been build

I, for one, welcome our new greedy and dead overlords.

I wasn't thinking of the court. I was thinking of the voting public, the relationship of the pro-Prop-8 crowd to the rest of California, and future political action in regards to this matter should the court decide that Prop 8 was not a revision.

California's legislature has been consistently supportive of same-sex marriage for the past few years, so I don't think this particular resolution changes things much politically. Its main role seems symbolic (which I have no objection to).

I, for one, welcome our new greedy and dead overlords.

The palace building is part of my economic stimulus package.