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> Prop 8 fight goes Federal, Ted Olson joins the appeal?
Jobius
post May 27 2009, 03:07 AM
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For those who weren't following the other thread, or the news generally, the California Supreme Court today upheld Proposition 8, which eliminated the right to same-sex marriage. I'm one of those rare supporters of same-sex marriage who thinks the court got it right this time. I voted against it, but the people have spoken (the bastards).

I'm taking up Jaime's invitation to start a new topic, based on today's decision, and on an appeal to the Federal courts that I was surprised to see included former Bush solicitor general Ted Olson:

QUOTE(The Washington Examiner @ May 26, 2009)
"I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions," Olson told me Tuesday night. "I thought their cause was just."

I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California. "It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution," Olson said. "The constitution protects individuals' basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation."

I'll post links to the appeal filings when I find them.

Questions for debate:

Was the California Supreme Court right to uphold Proposition 8? Why?

Should Prop. 8 opponents appeal to Federal court? Can they win?
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scubatim
post May 27 2009, 03:22 AM
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Questions for debate:

Was the California Supreme Court right to uphold Proposition 8? Why?
Though I disagree with the majority of the citizens of California, I think the court got this one right. The people spoke, the people make the law. The court upholds the law. Seems the system worked this time.

Should Prop. 8 opponents appeal to Federal court? Can they win?

I don't think the Federal Court should hear this case as I see it as a state issue, but if the opponents legally have the right to appeal this to a Federal Court, then I don't see any reason why they shouldn't. I would assume the court would uphold state courts, but that is only an assumption.
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Bikerdad
post May 27 2009, 03:46 AM
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Questions for debate:

Was the California Supreme Court right to uphold Proposition 8? Yes.

Why?


California Constitution
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL

SECTION 1. All political power is inherent in the people.
Government is instituted for their protection, security, and benefit,
and they have the right to alter or reform it when the public good
may require.



Should Prop. 8 opponents appeal to Federal court? Can they win?
No, but they probably will. Any appeal goes straight to SCOTUS, no falderal with US District Courts or the 9th Circuit. Based on past precedents and behavior, it is unlikely that SCOTUS would take the case.
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Jobius
post May 27 2009, 06:00 AM
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Was the California Supreme Court right to uphold Proposition 8? Why?

Yes, but I'm only on page 70. Halfway done! Can't fully answer the "why?" yet.

Should Prop. 8 opponents appeal to Federal court? Can they win?

I think it's risky, and I wonder what Ted Olson (who's argued before the U.S. Supreme Court) has for a plan. BikerDad may be right that the case will go straight to the USSC. That's what happened in Romer v. Evans, when the USSC overturned Colorado's 1992 Amendment 2, which had tried to prevent the courts from considering homosexuals a protected "suspect class." Anthony Kennedy wrote the opinion in Romer.

What does Olson think he knows? Is Sotomayor going to bring Kennedy around? (Not if you believe David Frum. (I don't.))

I have the same worry as I did three years ago, re: court victories. They can be short victories.
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Raptavio
post May 27 2009, 02:53 PM
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I can't speak to the California law and whether or not Prop 8 was rightfully upheld. I do think it's abhorrent that the state Constitution can be amended by simple majority, however.

I don't think a federal case can be made. There is no federal guarantee of the right to gay marriage (though the Constitution doesn't prohibit it either).
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entspeak
post May 27 2009, 06:03 PM
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Was the California Supreme Court right to uphold Proposition 8? Why?

No. Yes, the people of California have the power to amend the Constitution, I have never claimed otherwise and I don't intend to do so now. However, this power is not without limit - California's jurisprudence has some examples of this. It is not a blank check for a simple majority to do with the Constitution what they will. It is well within the authority of the judicial branch to recognize those limits.

With regard to equal protection and suspect classifications, there have been - of the, literally, hundreds that have been passed - no initiative amendments that have restricted a fundamental right based upon a suspect classification. None. This is a first and it sets a dangerous precedent.

Blackstone argued in another thread that if, say, an initiative amendment were to strip homosexuals of the right to vote, it would obviously be considered a revision and not an amendment. Well, not anymore. According to the decision, so long as the exception is narrow, limited and doesn't affect government structure, it is considered an amendment.

The effect being, that if, in 1948, 50% + 1 of the people wanted to, they could have established an interracial marriage ban in the constitution. A simple majority could have done that. Now, they didn't, but the argument made in this decision is that such a thing is possible.

Given that such a change in the law would automatically be assumed to be based upon animus, it makes no sense that Article XVIII, Sec. 3 should be interpreted in such a way that it allows such animus to be easily established in the Constitution itself.

Currently, it would be possible to constitutionally prevent blacks or any other heterosexual minority over a certain age from marrying - they would have to choose a domestic partnership. If 50% + 1 of the people want to do that, they need only pass an initiative amendment.

If domestic partnerships were ever opened to everyone - which has happened elsewhere, so it is a possibility, 50% + 1 of the people could establish in the Constitution that "only marriage between a Caucasian man and a Caucasian woman is valid and recognized in the State of California." It's a narrow exception that does not change the government structure and does not impact the "right to establish an officially recognized family relationship" because any non-caucasian person would still have the right to establish a domestic partnership. Separate but Equal.

Currently, 50% + 1 of the people have now been recognized as having the power to remove equal employment rights from women, racial minorities and homosexuals.

I can hardly believe that this is what was intended when this power was recognized in the Constitution.

The CSC had the authority to recognize a narrow limitation like this, but they chose not to. And in doing so, seemed to overturn themselves without claiming to overturn themselves. It makes no sense.

They cite Bowens, but that case explicitly states that they are not dealing with a suspect class or infringement upon a fundamental right. The implication being that if they were, it would be a different story.

According to the CSC, the right to marry is no longer the right to marry, it is the right to establish an officially recognized family relationship... and because that right for same-sex couples is not impacted by Prop 8 (they still have domestic partnerships), their right to marry is not infringed upon. But, they stated in RE: Marriages and reiterated in this case that one of the core elements of the right to marry is the right to have that officially recognized family relationship treated with equal dignity and respect - which Prop 8 does not. So, apparently, while equal dignity and respect is an important part of the right to marry, it is not an important part of the right to establish an officially recognized family relationship? wacko.gif

Should Prop. 8 opponents appeal to Federal court? Can they win?

Even if they could win, you would see a Federal Constitutional Amendment taken seriously in Congress. I think there is a much better chance of this amendment being repealed and Article XVIII, Sec. 3 being changed.

This post has been edited by entspeak: May 27 2009, 09:49 PM
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Maybe Maybe Not
post May 27 2009, 09:31 PM
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QUOTE(entspeak @ May 27 2009, 01:03 PM) *
The effect being, that if, in 1948, 50% + 1 of the people wanted to, they could have established an interracial marriage ban in the constitution. A simple majority could have done that. Now, they didn't, but the argument made in this decision is that such a thing is possible.
...

Currently, it would be possible to constitutionally prevent blacks or any other heterosexual minority over a certain age from marrying - they would have to choose a domestic partnership. If 50% + 1 of the people want to do that, they need only pass an initiative amendment.
...

Currently, 50% + 1 of the people now have the power to remove equal employment rights from women, racial minorities and homosexuals.
As soon as I read a persuasive argument that what entspeak asserts here is false, I will agree that the CSC decided this case correctly.

Anyone? Anyone?


I would add these scenarios to the ones entspeak proferred:

Currently, it would be constitutionally permissible for 50% + 1 of the people of California to carve out a narrow exception to equal protection of the laws which would deny any citizen of California who is of Chinese ancestry the right to publish political pamphlets on American made paper.

Currently, it would be constitutionally permissible for 50% + 1 of the people of California to carve out a narrow exception to equal protection of the laws which would deny any citizen of California who adheres to the Baptist faith the right to be free from searches and seizures while they attend baseball games.


This post has been edited by Maybe Maybe Not: May 27 2009, 09:45 PM
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droop224
post May 28 2009, 02:25 AM
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QUOTE(Maybe Maybe Not @ May 27 2009, 04:31 PM) *
QUOTE(entspeak @ May 27 2009, 01:03 PM) *
The effect being, that if, in 1948, 50% + 1 of the people wanted to, they could have established an interracial marriage ban in the constitution. A simple majority could have done that. Now, they didn't, but the argument made in this decision is that such a thing is possible.
...

Currently, it would be possible to constitutionally prevent blacks or any other heterosexual minority over a certain age from marrying - they would have to choose a domestic partnership. If 50% + 1 of the people want to do that, they need only pass an initiative amendment.
...

Currently, 50% + 1 of the people now have the power to remove equal employment rights from women, racial minorities and homosexuals.
As soon as I read a persuasive argument that what entspeak asserts here is false, I will agree that the CSC decided this case correctly.

Anyone? Anyone?


I would add these scenarios to the ones entspeak proferred:

Currently, it would be constitutionally permissible for 50% + 1 of the people of California to carve out a narrow exception to equal protection of the laws which would deny any citizen of California who is of Chinese ancestry the right to publish political pamphlets on American made paper.

Currently, it would be constitutionally permissible for 50% + 1 of the people of California to carve out a narrow exception to equal protection of the laws which would deny any citizen of California who adheres to the Baptist faith the right to be free from searches and seizures while they attend baseball games.



laugh.gif laugh.gif What fantasy world are you all living in?? Those amendments would never be permissibleunder our national Constitution.

You guys guys never did get the greater point... well you did Maybe...but you were persuaded by Entspeak to think otherwise. The issue is that 50% +1 of the population can make constitutional amendments.

And you and Entspeak were overstepping the basic common sense idea of what a revision is, just to claim that an amendment that you didn't favor shouldn't be allowed.
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Jobius
post May 28 2009, 02:44 AM
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QUOTE(Maybe Maybe Not @ May 27 2009, 02:31 PM) *
QUOTE(entspeak @ May 27 2009, 01:03 PM) *
The effect being, that if, in 1948, 50% + 1 of the people wanted to, they could have established an interracial marriage ban in the constitution. A simple majority could have done that. Now, they didn't, but the argument made in this decision is that such a thing is possible.
...

Currently, it would be possible to constitutionally prevent blacks or any other heterosexual minority over a certain age from marrying - they would have to choose a domestic partnership. If 50% + 1 of the people want to do that, they need only pass an initiative amendment.
...

Currently, 50% + 1 of the people now have the power to remove equal employment rights from women, racial minorities and homosexuals.
As soon as I read a persuasive argument that what entspeak asserts here is false, I will agree that the CSC decided this case correctly.

Anyone? Anyone?


I would add these scenarios to the ones entspeak proferred:

Currently, it would be constitutionally permissible for 50% + 1 of the people of California to carve out a narrow exception to equal protection of the laws which would deny any citizen of California who is of Chinese ancestry the right to publish political pamphlets on American made paper.

Currently, it would be constitutionally permissible for 50% + 1 of the people of California to carve out a narrow exception to equal protection of the laws which would deny any citizen of California who adheres to the Baptist faith the right to be free from searches and seizures while they attend baseball games.


It's a strong argument, and I think entspeak's first example is plausible, since Loving v. Virginia was still 20 years away. Your examples, however, would be unconstitutional under Federal 14th Amendment doctrine, even if California removed all protections from its constitution. But what your argument proves, to me anyway, isn't that Prop 8 wasn't an amendment, but that it shouldn't be so easy to amend the constitution.

I promised to link to the Federal appeal filings when I found them, so here they are. The legal team here, Ted Olson and David Boies, were the lead counsel in Bush v. Gore (respectively), so this is some sort of wacky reunion. The American Foundation for Equal Rights appears to have been formed a couple weeks ago, and none of the established gay rights groups are supporting this lawsuit.
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entspeak
post May 28 2009, 04:31 AM
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QUOTE(Jobius @ May 27 2009, 09:44 PM) *
It's a strong argument, and I think entspeak's first example is plausible, since Loving v. Virginia was still 20 years away. Your examples, however, would be unconstitutional under Federal 14th Amendment doctrine, even if California removed all protections from its constitution.


And, this is the real issue at hand. States have constitutions for a reason. California offers greater protections than the Federal Constitution. The CSC already ruled in Raven that the people may not use the initiative amendment in such a way that it forces California to rely upon the US Constitution. The US Constitution serves as a baseline, states are allowed to offer greater protections and some do, California in particular. Gender is a suspect class under the California Constitution... not so under the federal where it is a quasi-suspect class - and while many states have incorporated the ERA in their constitutions, the Federal version was never ratified. Sexual orientation is on even murkier ground as a classification.

And, with this decision, a simple majority could say that a black man or woman over the age of 62 is prohibited from marrying. According to this ruling, such an amendment would simply carve out a narrow exception with regard to the designation of "marriage" and these people could join homosexual couples in establishing domestic partnerships. If there is no substantial difference between domestic partnerships and marriage, how would this violate the Federal Constitution?

This ruling makes it possible for a simple majority to gut California Constitution's Equal Protection Clause with respect to suspect classifications and fundamental rights and forces California to rely upon the Federal Constitution for those protections. All of the extra protections that the California Constitution gives to suspect classes are now subject to the whim of a simple majority.

Yes, these other issues would violate the Federal Constitution. But then, challengers would have to go to Federal court to seek remedy and not the CSC. It removes the CSC from that process. That's not effectively a revision? That's not a change in the structure of the judicial branch?

QUOTE
But what your argument proves, to me anyway, isn't that Prop 8 wasn't an amendment, but that it shouldn't be so easy to amend the constitution.


I don't think so, just because it should be easy for the people to amend their constitution doesn't mean that they should be able to do whatever they want with that power. It's been established that there are limits to that power and, if the CSC followed their own precedent in Bowens, they could have interpreted Article XVIII, Sec. 3 in such a way as not to have this be an issue.

This post has been edited by entspeak: May 28 2009, 05:22 AM
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droop224
post May 28 2009, 05:12 AM
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QUOTE
This ruling makes it possible for a simple majority to gut California Constitution's Equal Protection Clause with respect to suspect classifications and fundamental rights and forces California to rely upon the Federal Constitution for those protections. All of the extra protections that the California Constitution gives to suspect classes are now subject to the whim of a simple majority.

Yes, these other issues would violate the Federal Constitution. But then, challengers would have to go to Federal court to seek remedy and not the CSC. It removes the CSC from that process. That's not effectively a revision? That's not a change in the structure of the judicial branch?


Simple question.

Is it perfectly fine for a California legislature through the amendment process to make these exact same amendments as are in your doomsday scenarios??

If so how has the Constitution been revised?

This post has been edited by droop224: May 28 2009, 05:13 AM
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Jobius
post May 28 2009, 05:48 AM
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QUOTE(entspeak @ May 27 2009, 09:31 PM) *
Yes, these other issues would violate the Federal Constitution. But then, challengers would have to go to Federal court to seek remedy and not the CSC. It removes the CSC from that process. That's not effectively a revision? That's not a change in the structure of the judicial branch?

But you could use this argument to show that nearly any initiative is really a revision and not an amendment. Increase state power to enforce environmental regulations? Now people can go to state court instead of Federal court. That's not a change in the structure of the judicial branch?

The fact is that changing the name of same-sex marriages back to what they were called a year ago, civil unions, is not a change to the basic governmental plan or framework. It still wouldn't be even if voters were infested by absurdist brain parasites and decided to call the marriages of elderly Chinese people "civil unions."

It's just a name. Yes, yes, "separate but equal" is awful, and we can't deny anyone dignity and respect. But I don't think that the people who disrespect gays would have had their opinions changed one bit by the government continuing to call same-sex unions "marriage." If anything, the earlier California Supreme Court decision to do that seemed to energize their reactionary cause. This is a political fight, and it's the electorate who needs to be convinced, not a handful of judges.
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entspeak
post May 28 2009, 06:23 AM
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QUOTE(Jobius @ May 28 2009, 12:48 AM) *
But you could use this argument to show that nearly any initiative is really a revision and not an amendment. Increase state power to enforce environmental regulations? Now people can go to state court instead of Federal court. That's not a change in the structure of the judicial branch?


Well, if you are passing a change to the constitution increasing state power to enforce environmental regulations, you are making a change to the state's government plan, are you not? Then, yes, in that particular instance - based solely on your description of the change - it is a revision. But, just because we can think of other instances that are also revisions doesn't mean that nearly any initiative is really a revision.

QUOTE
The fact is that changing the name of same-sex marriages back to what they were called a year ago, civil unions, is not a change to the basic governmental plan or framework.


If it has the effect of allowing further erosion of California's Equal Rights Protections for the fundamental rights of suspect classes, then it establishes a change to one of the underlying principles of the Constitution - that is a change to the basic government plan.

QUOTE
It's just a name. Yes, yes, "separate but equal" is awful, and we can't deny anyone dignity and respect. But I don't think that the people who disrespect gays would have had their opinions changed one bit by the government continuing to call same-sex unions "marriage." If anything, the earlier California Supreme Court decision to do that seemed to energize their reactionary cause. This is a political fight, and it's the electorate who needs to be convinced, not a handful of judges.


So, even though separate but equal is awful, we should allow it to stand until the people get their heads screwed on correctly? Funny, I thought that was one of the reasons we created a judicial branch - to protect people from majorities who don't have their heads screwed on correctly.

QUOTE(droop)
Is it perfectly fine for a California legislature through the amendment process to make these exact same amendments as are in your doomsday scenarios??


As Blackstone mentioned in the other thread, if it is a revision, it is a revision. If it is a revision that 50% + 1 of the people may not pass via the initiative amendment process, then it is a revision when taken up by the Legislature.

This post has been edited by entspeak: May 28 2009, 06:42 AM
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Maybe Maybe Not
post May 28 2009, 09:08 AM
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QUOTE(droop224 @ May 27 2009, 09:25 PM) *
Those amendments would never be permissible under our national Constitution.
Are you admitting they would be permissible under the California constitution?

If not, your argument is irrelevant.

If so, you are forgetting that the federal Constitution promises to each state a republican form of government. A judicial decision affirming the power of a simple majority in California to strip fundamental rights (or parts of fundamental rights) from a suspect class would seem to indicate California's government no longer qualifies.

If it would take the federal Constitution to protect vulnerable minorities whom the California constitution does not, by definition we have arrived at a situation in which California's governmental plan is no longer consistent with what the federal Constitution guarantees to each state. Presumptively, the California governmental plan WAS consistent with the federal Constitution before such a decision. Hence, a major change in the basic governmental plan.

As entspeak notes above, the federal Constitution is a floor, not a ceiling. [My characterization, not enstpeak's.]



QUOTE(droop224 @ May 27 2009, 09:25 PM) *
You guys guys never did get the greater point... well you did Maybe...but you were persuaded by Entspeak to think otherwise. The issue is that 50% +1 of the population can make constitutional amendments.

And you and Entspeak were overstepping the basic common sense idea of what a revision is, just to claim that an amendment that you didn't favor shouldn't be allowed.
As is the case with the word "marriage," judicial decisions regarding "amendment" vs. "revision" follow legal, rather tha common sense, definitions.

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droop224
post May 28 2009, 02:50 PM
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QUOTE
Are you admitting they would be permissible under the California constitution?

If not, your argument is irrelevant.

If so, you are forgetting that the federal Constitution promises to each state a republican form of government. A judicial decision affirming the power of a simple majority in California to strip fundamental rights (or parts of fundamental rights) from a suspect class would seem to indicate California's government no longer qualifies.

If it would take the federal Constitution to protect vulnerable minorities whom the California constitution does not, by definition we have arrived at a situation in which California's governmental plan is no longer consistent with what the federal Constitution guarantees to each state. Presumptively, the California governmental plan WAS consistent with the federal Constitution before such a decision. Hence, a major change in the basic governmental plan.

As entspeak notes above, the federal Constitution is a floor, not a ceiling. [My characterization, not enstpeak's.]


I am saying that if the federal constitution is the "floor" than your doomsday scenario is implausible.

You can't reach a ceiling without even being able to get to the floor.

As to your other point. "If so, you are forgetting that the federal Constitution promises to each state a republican form of government. " You are coming RIGHT BACK to what I originally said. You're issue has to be with the fact that a 50% + 1 can change the State Constitution. You refused to make that your argument... instead you went off on some mythological road of "what if's" and implausible theories of what the people could possibly do with this suppossedly new(though they always had it) power.

If the federal constitution protects a group from something the state constitution does not have to. It can if it chooses to, it can "add" protections if it wants to, but if it doesn't violate the constitution than it is in line with our governmental system.

QUOTE
As is the case with the word "marriage," judicial decisions regarding "amendment" vs. "revision" follow legal, rather tha common sense, definitions.


Understood. How does making marriage between too people of oppossing sexes meet this legal definition?

Entspeak
QUOTE
So, even though separate but equal is awful, we should allow it to stand until the people get their heads screwed on correctly? Funny, I thought that was one of the reasons we created a judicial branch - to protect people from majorities who don't have their heads screwed on correctly.


This argument isn't about rights... it's about pride. It's about gays wanting to take on the term marriage, the title only. Not a fight for the courts because this fight isn't about "rights" or "substance" it's about public acceptance... so they do indeed need to change the hearts and minds of people. And slowly but surely they are.. or have you not noticed the trends??

QUOTE
As Blackstone mentioned in the other thread, if it is a revision, it is a revision. If it is a revision that 50% + 1 of the people may not pass via the initiative amendment process, then it is a revision when taken up by the Legislature.


And an Amendment is an amendment. Amendments change the Constitution.. and yes they can erode or add to existing rights. But that does not mean that you can assert that it is a revision because one could make an amendment to do this or do that that is unfavorable to our sensibilities. Why do you think they make amendment process so hard in many other states??
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entspeak
post May 28 2009, 03:29 PM
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QUOTE(droop224 @ May 28 2009, 09:50 AM) *
I am saying that if the federal constitution is the "floor" than your doomsday scenario is implausible.


It's not impossible, though. I'm saying that they could remove it from the California Constitution - that is possible. Sure, we could then rely strictly upon the Federal Constitution... but that is something that the CSC in Raven said a simple majority did not have the power to do via the amendment process. What the CSC is saying here is that it is possible for a simple majority to do it, so long as they do it in steps instead of all at once. It sends the signal that if a simple majority wants to restrict the rights of an unpopular majority, they need only use the path of least resistance, the initiative amendment process.

QUOTE
Amendments change the Constitution.. and yes they can erode or add to existing rights.


Sure. And it has been recognized that a simple majority can erode, remove or add to existing rights so long as they do so equally. But, it violates one of the fundamental principles of equal protection to allow a simple majority to erode or remove existing rights unequally with respect to suspect classifications.

The problem is not with the people's power to easily amend the Constitution. It is, more specifically, the power of the people to easily amend the Constitution in this particular way. I don't believe it was ever the intent to use that article in this fashion and it is, in fact, out of the many hundred times it has been used, the first time it ever has been used in this way.

But, same-sex marriage aside, the precedent set by allowing this ruling is dangerous. All the extra protections afforded to the people of California may now be restricted with regard to suspect classifications by a simple majority. Particularly those classifications that are treated with more respect in California than at the federal level - gender and homosexuality.

And, you're not seriously claiming that, with this ruling in place, should domestic partnerships open up to everyone, a simple majority couldn't constitutionally reinstate interracial marriage bans, right? Because they could... and how exactly would that violate the federal constitution? California could then relegate blacks to second class citizen status by simply carving out a narrow exception to equal protection in the constitution by not allowing blacks to call their unions "marriage."

The other rights of homosexuals now are at the whim of a simple majority. If a simple majority doesn't want to allow homosexuals to adopt... they need only carve out a narrow exception to equal protection in the constitution. If a simple majority believes that businesses should be able to discriminate when it comes to employment, they need only carve out a narrow exception to equal protection in the constitution. I don't believe that the ability for a simple majority to apply existing rights unequally and in a constitutionally suspect manner was a power ever intended to be granted by Article XVIII, Sec. 3. And, it is certainly within the authority of the judicial branch to recognize that. To interpret an article in the constitution in such a way as to avoid constitutional conflict, according to Bowens.

This post has been edited by entspeak: May 28 2009, 03:34 PM
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droop224
post May 28 2009, 04:20 PM
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Entspeak
QUOTE
It's not impossible, though. I'm saying that they could remove it from the California Constitution - that is possible. Sure, we could then rely strictly upon the Federal Constitution... but that is something that the CSC in Raven said a simple majority did not have the power to do via the amendment process.


That's a really skewed vision of what the courts were saying in their ruling of Raven Here is a another summary that exemplifies the difference.

QUOTE
In Raven, the court reviewed an initiative that explicitly directed the courts of California to construe a set of state constitutional rights enjoyed by criminal defendants to afford no more protection than the parallel set of rights provided for by the United States Constitution. The set of rights that were involved included the rights to equal protection of the law, to due process of law, to assistance of counsel, to a speedy trial, to confront witnesses, to be free from unreasonable search and seizure, to freedom from compelled self-incrimination, to freedom from double jeopardy, and to freedom from cruel and unusual punishment (among others).

The California Justices said that such a provision wrests from the California Supreme Court the power to give independent meaning to a whole host of state constitutional liberties and provisions. In so doing, the Justices reasoned, the initiative makes the California jurists simply implementers of the interpretive will of the U.S. Supreme Court's Justices, who have the final say in determining the meaning of the federal Constitution: .....

... In Raven, the initiative provision in question overtly directed courts as to how to do their interpretive job; it told them to look to another institution (the U.S. Supreme Court) in order to decide cases before them. ...


Huge difference from what you are saying and implying. Just because a State doesn't have a protection that the federal Constitution guarantees does not mean the Courts can't interpret as they see fit or which laws they have to look at. They would look to the federal constitution not because they are mandated to, but because by their Constitution at the state level it is perfectly permissble.

Their job is to say what they think is constitutional and what is unconstitutional, your pushing them to decide what is right and what is wrong and to twist precedent(not a little twist either, else I may agree with you) and law to justify their actions.

QUOTE
Sure. And it has been recognized that a simple majority can erode, remove or add to existing rights so long as they do so equally. But, it violates one of the fundamental principles of equal protection to allow a simple majority to erode or remove existing rights unequally with respect to suspect classifications.


Along the same line of questioning I asked earlier: Are you saying that if a super-majority made this amendment, it would be a fundamental violation that should be found unconstitutional??

QUOTE
The problem is not with the people's power to easily amend the Constitution. It is, more specifically, the power of the people to easily amend the Constitution in this particular way. I don't believe it was ever the intent to use that article in this fashion and it is, in fact, out of the many hundred times it has been used, the first time it ever has been used in this way.

But, same-sex marriage aside, the precedent set by allowing this ruling is dangerous. All the extra protections afforded to the people of California may now be restricted with regard to suspect classifications by a simple majority. Particularly those classifications that are treated with more respect in California than at the federal level - gender and homosexuality.


All the extra protections afforded to the people of California could always be restricted by the simple majority. The fact that they chose not to use the power does not mean it's a new power when they use it. The people were backed in a corner by the courts, but what use is is giving the power to make an amendment to the Constitution by a simple majority if not for the people to address and balance the powers of government, themselves.

QUOTE
And, you're not seriously claiming that, with this ruling in place, should domestic partnerships open up to everyone, a simple majority couldn't constitutionally reinstate interracial marriage bans, right? Because they could... and how exactly would that violate the federal constitution? California could then relegate blacks to second class citizen status by simply carving out a narrow exception to equal protection in the constitution by not allowing blacks to call their unions "marriage."


I disagree that they could, because they would have to do it on the basis that they were black which would violate our Constitution. And I wouldn't have to make these off the wall arguments about how even though it doesn't mention blacks it is about blacks. Homosexuals are not banned from marriage.

QUOTE
The other rights of homosexuals now are at the whim of a simple majority. If a simple majority doesn't want to allow homosexuals to adopt... they need only carve out a narrow exception to equal protection in the constitution. If a simple majority believes that businesses should be able to discriminate when it comes to employment, they need only carve out a narrow exception to equal protection in the constitution. I don't believe that the ability for a simple majority to apply existing rights unequally and in a constitutionally suspect manner was a power ever intended to be granted by Article XVIII, Sec. 3. And, it is certainly within the authority of the judicial branch to recognize that. To interpret an article in the constitution in such a way as to avoid constitutional conflict, according to Bowens.


Maybe the first, I highly doubt the second... seems like a stretch.



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entspeak
post May 28 2009, 04:58 PM
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QUOTE(droop224 @ May 28 2009, 11:20 AM) *
Huge difference from what you are saying and implying.


True to an extent - I mean, no precedent exactly fits this situation because it's never been done before. What the provision in Raven would have required the CSC to do and the precedent that Prop 8 sets are not entirely the same, granted: while the provision in Raven would have required the CSC to examine particular cases based upon the Federal Constitution and not the California Constitution, the precedent set by Prop 8 just cuts them out of the loop entirely and would require challengers to go to the Federal courts to seek redress under the Federal Constitution directly - the CSC wouldn't even have an opportunity to hear the case. How does that not affect a change to the basic government plan?

QUOTE
They would look to the federal constitution not because they are mandated to, but because by their Constitution at the state level it is perfectly permissble.


The CSC wouldn't look to the federal constitution because they wouldn't even be allowed to hear the case.

QUOTE
Their job is to say what they think is constitutional and what is unconstitutional

Well, if an initiative amendment is allowed to stand as an initiative amendment, then the CSC has nothing to say in the matter, it is a part of the constitution and, therefore, constitutional. No examination necessary there.

QUOTE
Along the same line of questioning I asked earlier: Are you saying that if a super-majority made this amendment, it would be a fundamental violation that should be found unconstitutional??


I'm saying that a simple majority shouldn't have this power... a simple majority. Based upon the processes available in the constitution, the simple majority option should not be allowed in this type of situation.

QUOTE
All the extra protections afforded to the people of California could always be restricted by the simple majority. The fact that they chose not to use the power does not mean it's a new power when they use it. The people were backed in a corner by the courts, but what use is is giving the power to make an amendment to the Constitution by a simple majority if not for the people to address and balance the powers of government, themselves.


And, I'm saying, that while they have always had that power to restrict these extra protections equally, I don't believe it was ever intended to allow them to do so unequally. That violates the underlying principle of equal protection. If you look at those two articles together, that becomes obvious. If one of the underlying principles of Equal Protection is that separate but equal is not equal and one of the functions of equal protection is to protect unpopular minorities from the will of a majority, it makes no sense to allow the people to easily assert their will over an unpopular minority in the constitution itself by a simple majority vote using a process that does not require any kind of careful consideration but can easily be motivated solely by popular animus toward a particular minority group. Now, the state should have the power to overrule the courts with regard to a situation where the courts have ruled that a fundamental right has been restricted based upon a suspect classification in violation of equal protection, certainly... I don't argue that. Article XVIII, Sec. 3 - when taken into consideration with the underlying principles of Equal Protection, should not be the option that is available to do that.

QUOTE
I disagree that they could, because they would have to do it on the basis that they were black which would violate our Constitution. And I wouldn't have to make these off the wall arguments about how even though it doesn't mention blacks it is about blacks. Homosexuals are not banned from marriage.


Whoa, I didn't say the state could prevent blacks from engaging in their right to marry, I'm sorry if that wasn't clear. I said they could constitutionally prevent them from calling their union a marriage while reserving that designation for caucasians - Separate but Equal. Are you saying that would be unconstitutional? How?

QUOTE
QUOTE
The other rights of homosexuals now are at the whim of a simple majority. If a simple majority doesn't want to allow homosexuals to adopt... they need only carve out a narrow exception to equal protection in the constitution. If a simple majority believes that businesses should be able to discriminate when it comes to employment, they need only carve out a narrow exception to equal protection in the constitution. I don't believe that the ability for a simple majority to apply existing rights unequally and in a constitutionally suspect manner was a power ever intended to be granted by Article XVIII, Sec. 3. And, it is certainly within the authority of the judicial branch to recognize that. To interpret an article in the constitution in such a way as to avoid constitutional conflict, according to Bowens.


Maybe the first, I highly doubt the second... seems like a stretch.


What federal constitutional provision protects equal employment based upon sexual orientation?

This post has been edited by entspeak: May 28 2009, 11:27 PM
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Maybe Maybe Not
post May 28 2009, 06:53 PM
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QUOTE(droop224 @ May 28 2009, 09:50 AM) *
I am saying that if the federal constitution is the "floor" than your doomsday scenario is implausible.

because ofYou can't reach a ceiling without even being able to get to the floor.
My scenarios are only implausible because the federal Constitution wouldn't allow them to stand, not because the California constitution as interpreted and applied by the CSC wouldn't allow them to stand. The California constitution apparently would allow those scenarios.

Ergo, the scheme of government in California (by allowing a simple majority to narrowly restrict the rights of a suspect class) is no longer consistent with the republican form of government guaranteed by the federal Constitution to each state. (Not because of the specific change that has been made to the California constitiution, but because the change reflects a democratic, rather than a republican, form of government.)




QUOTE(droop224 @ May 28 2009, 09:50 AM) *
As to your other point. "If so, you are forgetting that the federal Constitution promises to each state a republican form of government. " You are coming RIGHT BACK to what I originally said. You're issue has to be with the fact that a 50% + 1 can change the State Constitution. You refused to make that your argument... instead you went off on some mythological road of "what if's" and implausible theories of what the people could possibly do with this suppossedly new(though they always had it) power.
The power of the people of California to use the initiative process to strip rights (or portions of rights) from suspect classes had never before been established. (See entspeak's posts in this regard.)

Sure - the people of California can "change" the California constitution to some extent via a 50% + 1 vote. But the California constitution and previous CSC rulings regarding the processes by which it may be "changed" don't refer to "changing" it - they refer to either "amending" it or "revising" it. Legally, "amending" and "revising" the California constitution are two different actions, even though "change," "amend." and "revise" might have similar common usages.



QUOTE(droop224 @ May 28 2009, 09:50 AM) *
If the federal constitution protects a group from something the state constitution does not have to.
True. And homosexuals are offered no special protection via the federal Constitution. All the federal government says is that the states have to apply equally whatever laws they DO have. And since California has created de jure equality between opposite-sex pair bonds and same-sex pair bonds, the equal protection of the laws requires ... equality. The CSC has held that a core element of equality is calling these varying pair bonds by the same name.

California didn't HAVE TO make sexual orientation a suspect classification. And they didn't HAVE TO create legal equality between opposite-sex and same-sex pair bonds. But since they did, they are obligated to apply the law equally.

This post has been edited by Maybe Maybe Not: May 28 2009, 10:46 PM
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post May 29 2009, 04:49 AM
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Should Prop. 8 opponents appeal to Federal court? Can they win?

I just finished reading the request for an injunction and they seem confident that they can get one. I don't know how I feel about that. If it fails, what happens to the marriages that took place from the time of the injunction to the close of the case? Are they allowed to keep their marriages?

Can they win? They seem to believe that they can win even if the courts use the lowest standard of review and the arguments they use are compelling. They might even get win based on the argument that this only applies to situations where civil unions exist and not where legal recognition of same-sex relationships is banned outright. I'd be interested in hearing what others think of their argument.
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