Help - Search - Members - Calendar
Full Version: Prop 8 and the California State Constitution
America's Debate > Policy Debate > Constitutional Debate
Pages: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18
Google
entspeak
A suit has been filed with the State Supreme Court by the government of the city of San Francisco to invalidate the amendment created by the passage of Prop 8.

Now, to be clear, this debate is not about the nature of homosexual relationships, but about a question of constitutional law.

Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?
Google
CruisingRam
QUOTE(entspeak @ Nov 16 2008, 10:26 AM) *
A suit has been filed with the State Supreme Court by the government of the city of San Francisco to invalidate the amendment created by the passage of Prop 8.

Now, to be clear, this debate is not about the nature of homosexual relationships, but about a question of constitutional law.

Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?


Question for clarity-

when an amendment is passed to actually amend the constitution, as in Prop 8- isn't the constitutionality of the Prop moot? I would think only the USSC could now strike down Prop 8?
DaytonRocker
QUOTE(entspeak @ Nov 16 2008, 01:26 PM) *
A suit has been filed with the State Supreme Court by the government of the city of San Francisco to invalidate the amendment created by the passage of Prop 8.

Now, to be clear, this debate is not about the nature of homosexual relationships, but about a question of constitutional law.

Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?

No.

Instead, this needs to go to the Supreme Court. Even if the California courts said gay marriage is ok, you still have 41 states saying they don't exist. This has now become more than a states issue. All states have rejected gay marriage when brought to the voters. But we have individual courts trying to override the will of the American people - just like what is happening with Prop 8.

Let the Supremes settle it.
Blackstone
QUOTE(CruisingRam @ Nov 16 2008, 01:51 PM) *
Question for clarity-

when an amendment is passed to actually amend the constitution, as in Prop 8- isn't the constitutionality of the Prop moot? I would think only the USSC could now strike down Prop 8?

As this article explains:

QUOTE(Tucson Observer)
The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works. Through the initiative process, voters can make relatively small changes to the constitution. But any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters.

Since Proposition 8 was not submitted to the state legislature before passage, the question that remains is whether or not the amendment fundamentally changed the underlying principles of the state constitution. I would argue that it did not. It merely enshrined what for generations in California had already been understood to be the definition of marriage.

True it is that the state's official legal definition ("a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary") did not mention gender, so you could take it literally and say that it was open to both same-sex and opposite-sex relations. But by the same logic, you could also hold that it was unlimited as to the number of spouses, since it mentions nothing about number either. As it was, it was universally interpreted, up until very recently, to mean exactly what Proposition 8 said it means, and exactly what it had meant everywhere else in the country: one man, one woman. Therefore, Proposition 8 doesn't really change anything, and does not violate the terms of the initiative process.
entspeak
QUOTE(CruisingRam @ Nov 16 2008, 12:51 PM) *
Question for clarity-

when an amendment is passed to actually amend the constitution, as in Prop 8- isn't the constitutionality of the Prop moot? I would think only the USSC could now strike down Prop 8?


No. According to the Article 18 of State Constitution, California has two ways in which to change its constitution, via amendment and revision. The State Supreme Court would be interpreting that Article of the Constitution. Their determination could invalidate the passage of Prop 8.

QUOTE
the question that remains is whether or not the amendment fundamentally changed the underlying principles of the state constitution. I would argue that it did not. It merely enshrined what for generations in California had already been understood to be the definition of marriage.


It has been determined by the California Supreme Court that homosexuals are suspect class with protected under the Equal Protection Clause of the State Constitution and that, according to the Equal Protection Clause, the right to marry can't be restricted solely based on sexual orientation. And - as I stated in the other thread, Blackstone - in California, the right to marry is the right to join in marriage with the person of one's choosing. This means that the choice can't be restricted based solely on sexual orientation.

It has long been held that it is within the jurisdiction of the courts to make determinations regarding the Equal Protection Clause in order to protect an unpopular minority from the will of the majority. Allowing the restriction of rights for a suspect class via a bare majority undermines the Equal Protection Clause itself and is, therefore, a substantial change. It would mean, for example, that the people of California who voted - via a simple majority - for the interracial marriage ban could have passed - via a simple majority - an amendment to the State Constitution to keep the interracial ban despite the Equal Protection Clause which is intended to protect suspect classes from the will of a simple majority.

To allow this would mean that the Courts, essentially, have no jurisdiction when it comes to the Equal Protection Clause. That is a rather substantial change.
Blackstone
QUOTE(entspeak @ Nov 16 2008, 02:09 PM) *
It has been determined by the California Supreme Court that homosexuals are suspect class with protected under the Equal Protection Clause of the State Constitution and that, according to the Equal Protection Clause, the right to marry can't be restricted solely based on sexual orientation.

But since Proposition 8 doesn't actually do that, there's no legitimate reason for overturning it.
entspeak
QUOTE(Blackstone @ Nov 16 2008, 01:29 PM) *
QUOTE(entspeak @ Nov 16 2008, 02:09 PM) *
It has been determined by the California Supreme Court that homosexuals are suspect class with protected under the Equal Protection Clause of the State Constitution and that, according to the Equal Protection Clause, the right to marry can't be restricted solely based on sexual orientation.

But since Proposition 8 doesn't actually do that, there's no legitimate reason for overturning it.


If Proposition restricts the choice of who you marry based solely on sexual orientation then it most certainly does do that, Blackstone.

If marriage is only valid and recognized between a man and a woman, then the choice of who one marries is restricted based on sexual orientation - a homosexual can't choose to marry an individual of the same sex.
CruisingRam
QUOTE(DaytonRocker @ Nov 16 2008, 11:06 AM) *
QUOTE(entspeak @ Nov 16 2008, 01:26 PM) *
A suit has been filed with the State Supreme Court by the government of the city of San Francisco to invalidate the amendment created by the passage of Prop 8.

Now, to be clear, this debate is not about the nature of homosexual relationships, but about a question of constitutional law.

Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?

No.

Instead, this needs to go to the Supreme Court. Even if the California courts said gay marriage is ok, you still have 41 states saying they don't exist. This has now become more than a states issue. All states have rejected gay marriage when brought to the voters. But we have individual courts trying to override the will of the American people - just like what is happening with Prop 8.

Let the Supremes settle it.


I agree DR, I think that is where this is going- it is one of the last civil rights movements in this country, certainly the main battle ground for equal civil rights- as pointed out, the USSC had to over-ride the will of the people many times to obtain equal rights for blacks, if it were a "majority rules" type scenario, blacks would still be second class citizens.

For minorities, the USSC is pretty much always the last hope for the downtrodden. YOu can't depend on the good will of a hateful majority to obtain equal rights for the minority.
entspeak
QUOTE(CruisingRam @ Nov 16 2008, 02:02 PM) *
I agree DR, I think that is where this is going- it is one of the last civil rights movements in this country, certainly the main battle ground for equal civil rights- as pointed out, the USSC had to over-ride the will of the people many times to obtain equal rights for blacks, if it were a "majority rules" type scenario, blacks would still be second class citizens.

For minorities, the USSC is pretty much always the last hope for the downtrodden. YOu can't depend on the good will of a hateful majority to obtain equal rights for the minority.


While I agree that this may be where this is headed eventually, legal recognition of marriages is still a power left to the states and not the federal government. To argue that this should not be decided by the State Supreme Courts is to argue that states do not have the power under the US Constitution to regulate marriage - that is not the case. California, through the courts, overturned interracial bans long before the USSC had anything to say on the subject.

If an amendment such as this was allowed via a vote by a simple majority, the California Supreme Court could easily have had that decision overturned as well. It is within the power of the Courts to interpret the Equal Protection Clause specifically to prevent the restriction of the rights of the unpopular minority over the will of the majority. That is the job of a State Supreme Court justice.
Blackstone
QUOTE(entspeak @ Nov 16 2008, 02:34 PM) *
If Proposition restricts the choice of who you marry based solely on sexual orientation then it most certainly does do that, Blackstone.

Except it doesn't restrict the choice of whom you marry based solely or even at all on sexual orientation. The rules are the same regardless of the sexual orientation of the spouses. The law simply mentions nothing about sexual orientation.
Google
CruisingRam
QUOTE(entspeak @ Nov 16 2008, 12:10 PM) *
QUOTE(CruisingRam @ Nov 16 2008, 02:02 PM) *
I agree DR, I think that is where this is going- it is one of the last civil rights movements in this country, certainly the main battle ground for equal civil rights- as pointed out, the USSC had to over-ride the will of the people many times to obtain equal rights for blacks, if it were a "majority rules" type scenario, blacks would still be second class citizens.

For minorities, the USSC is pretty much always the last hope for the downtrodden. YOu can't depend on the good will of a hateful majority to obtain equal rights for the minority.


While I agree that this may be where this is headed eventually, legal recognition of marriages is still a power left to the states and not the federal government. To argue that this should not be decided by the State Supreme Courts is to argue that states do not have the power under the US Constitution to regulate marriage - that is not the case. California, through the courts, overturned interracial bans long before the USSC had anything to say on the subject.

If an amendment such as this was allowed via a vote by a simple majority, the California Supreme Court could easily have had that decision overturned as well. It is within the power of the Courts to interpret the Equal Protection Clause specifically to prevent the restriction of the rights of the unpopular minority over the will of the majority. That is the job of a State Supreme Court justice.



Thanks for the clarification entspeak- the Cali constitution is fundamentally different than the very, very libertarian Alaskan constitution, which is very, very hard to amend to take away rights, and very easy to interpret to guaruntee rights ( it has such a strong privacy clause, all attempts to make marijuana illegal have failed) You can not amend our constitution through referendum, so I was misunderstanding the differences in the Cali constitution.

Blackstone's argument obviously has no merit, no need to belabour the point that DTOM made, and I believe the USC will probably strike down the ATTEMPT to ammend the state constitution, based on the arguments you have laid out, and on the, which decision was it? Perez vs somebody?
entspeak
QUOTE(Blackstone @ Nov 16 2008, 02:15 PM) *
QUOTE(entspeak @ Nov 16 2008, 02:34 PM) *
If Proposition restricts the choice of who you marry based solely on sexual orientation then it most certainly does do that, Blackstone.

Except it doesn't restrict the choice of whom you marry based solely or even at all on sexual orientation. The rules are the same regardless of the sexual orientation of the spouses. The law simply mentions nothing about sexual orientation.


The law does not have to explicitly mention sexual orientation in order to impact the choice of who a homosexual marries. For a homosexual, a choice based on sexual orientation would be a choice to marry an individual of the same sex. In California, the Equal Protection Clause protects that choice.

QUOTE(CruisingRam)
and I believe the USC will probably strike down the ATTEMPT to ammend the state constitution, based on the arguments you have laid out, and on the, which decision was it? Perez vs somebody?


Perez v. Sharp.

The first step is to have the challenge to the CSC. If that wins, then those who disagree with that decision can take it to the USC. In my opinion, the USC is required to determine whether or not the CSC made any mistakes in it's interpretation regarding Article 18. If the USC upheld the CSC's decision, it would have no affect on the illegality of same-sex marriage in other states.
Blackstone
QUOTE(entspeak @ Nov 16 2008, 03:21 PM) *
The law does not have to explicitly mention sexual orientation in order to impact the choice of who a homosexual marries.

It doesn't even mention it implicitly, and it impacts the choice of whom a heterosexual marries just as much as it impacts the choice of whom a homosexual marries.

QUOTE
For a homosexual, a choice based on sexual orientation would be a choice to marry an individual of the same sex.

In other words, a homosexual would want to choose to do something that the law forecloses. Lots of people would choose to do something that the law forecloses. That doesn't meant they're being discriminated against.

QUOTE
In my opinion, the USC is required to determine whether or not the CSC made any mistakes in it's interpretation regarding Article 18.

Federal courts generally do not review how state courts interpret state laws. It's really only when federal law is invoked that federal courts review the interpretation.
entspeak
QUOTE(Blackstone @ Nov 16 2008, 02:56 PM) *
It doesn't even mention it implicitly, and it impacts the choice of whom a heterosexual marries just as much as it impacts the choice of whom a homosexual marries.


Not in regards to sexual orientation. A heterosexual is allowed to use their sexual orientation in their choice of who they marry... it is not impacted. It is only the homosexual whose choice is based on sexual orientation that is impacted.

QUOTE
Lots of people would choose to do something that the law forecloses. That doesn't meant they're being discriminated against.


Yes, like blacks wanting to marry whites, right? wacko.gif I mean, that was something that the law "forclosed" in California until Perez v. Sharp, right? Oh, but you have that whole suspect class thing to deal with, that's right - the whole Equal Protection Clause aspect of the thing. So, sometimes, it does mean you are being unconstitutionally discriminated against.

QUOTE
Federal courts generally do not review how state courts interpret state laws. It's really only when federal law is invoked that federal courts review the interpretation.


Oh, right... my bad. I was thinking of Romer v. Evans, but that did deal with an interpretation of the US Constitution because, while a State may afford more protections to its citizens than those afforded by the US Constitution, it can't give them less... the US Constitution is the foundation.
JohnfrmCleveland
Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?

As far as the long-term viability of such an amendment to a state constitution - states are free to expand rights and liberties past what is granted in the U.S. Constitution. If, however, they try to pare down those rights past the level granted by the U.S. Constitution, the law or amendment in question will be found unconstitutional by the USSC.... eventually. It can happen fast, or it can be ignored for years, and the agenda is set by the Chief Justice, who decides what cases to look at. So even an unconstitutional (U.S. Constitution, I mean) amendment to a state constitution might sit on the books for years.

Amendments to constitutions trump precedent. So it does not matter what the CSC has ruled in the past on this issue. The only problem with adding an amendment is when it directly conflicts with other, still valid, parts of the constitution. If the CSC finds that this amendment is in conflict with, say, their equal protection clause, they might bounce it. (I admit up front that I haven't read through the Cal. constitution.) I think that in practice, the effect of the amendment is discriminatory if, as Entspeak has said, the CSC has already given homosexuals protected group status. But that does not necessarily mean that the amendment will be in such conflict with the rest of the constitution that it will fail. And the matter will end with the CSC for now, because homosexuals do not yet have protected status in the eyes of the USSC. That is to say, if the people of California see fit to pare down this right to the level of the USSC rulings, there is nothing to prevent them from doing so.

entspeak
QUOTE(JohnfrmCleveland @ Nov 16 2008, 10:19 PM) *
That is to say, if the people of California see fit to pare down this right to the level of the USSC rulings, there is nothing to prevent them from doing so.


Not when dealing with a State Constitution's Equal Protection Clause. Again, a State Constitution can afford more protection than the federal Constitution. This does not mean that the people of the state can violate the State's Constitution in favor of the federal.
droop224
QUOTE(entspeak @ Nov 17 2008, 12:11 AM) *
QUOTE(JohnfrmCleveland @ Nov 16 2008, 10:19 PM) *
That is to say, if the people of California see fit to pare down this right to the level of the USSC rulings, there is nothing to prevent them from doing so.


Not when dealing with a State Constitution's Equal Protection Clause. Again, a State Constitution can afford more protection than the federal Constitution. This does not mean that the people of the state can violate the State's Constitution in favor of the federal.



But if the voter have voted to amend the constitution how does the state supreme court find it unconstitutional?
Bikerdad
Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?

No, and there's two reasons why. The first is simply that the provisions of the California Constitution explicitly recognize that all political power belongs to the people. Second, others states have already been down this road, and thus the legal arguments and precedents have already been played out. Oregon played this tune already, complete with functionally identical Constitutional amendment provisions, and a challenge based on the same rationale as this challenge. It failed.
Victoria Silverwolf
I have to agree. As painful as the results of this election are to me, I must accept them. Instead of a court battle, the only route to take towards the goal I share is a long and hard one. The infamous Proposition 8 must be destroyed by the voters themselves. I am confident that they will have the wisdom and decency to do so, but it may not be for several years.
JohnfrmCleveland
QUOTE(entspeak @ Nov 17 2008, 01:11 AM) *
QUOTE(JohnfrmCleveland @ Nov 16 2008, 10:19 PM) *
That is to say, if the people of California see fit to pare down this right to the level of the USSC rulings, there is nothing to prevent them from doing so.


Not when dealing with a State Constitution's Equal Protection Clause. Again, a State Constitution can afford more protection than the federal Constitution. This does not mean that the people of the state can violate the State's Constitution in favor of the federal.


Entspeak, they wouldn't be violating the state constitution, they would be changing it. The Equal Protection Clause has no higher standing than any other clause. If there is a direct conflict, then you have to make a change or throw out the proposed amendment. But when I talk about direct conflict, I'm talking about something like Prohibition - you can't just add the 21st (repealing Prohibition) without repealing the 18th. They can't stand together in direct conflict. But it would be a stretch to find direct conflict between the words of Cal's Equal Protection clause and Prop 8. The old rulings would just be disregarded as precedent, and new rulings would have to fit in with the new amendment. And that is possible, especially if you remove protected group status from homosexuals.

Look, if enough states got together and decided to overturn the 14th Amendment, they could do that. Nothing is sacred. Amend the Constitution, and change the rules. It's the only set we have, and we are allowed, by it's own mechanisms, to make such changes.
entspeak
QUOTE
But if the voter have voted to amend the constitution how does the state supreme court find it unconstitutional?


Already explained above. There are two ways to change the California State Constitution, via amendment and revision... it is believed that if there is a substantial change to the constitution, it can only be done via revision. The impact of allowing a change to occur that restricts the rights of a suspect class in spite of the Equal Protection Clause can only happen via revision which requires more than a mere bare majority.

Imagine if Perez v. Sharp - which ruled, via the Equal Protection Clause, to protect a suspect class from the will of a bare majority - could be overturned by that very bare majority. That really doesn't make much sense, so... to do that requires a revision, a vote by 2/3 of the legislature and then by a simple majority of voters.

So, in this case, it would not be the amendment that would be invalidated, it would be the passage of the amendment that would be invalidated - the effect would be the same. Of course, California could then go through the revision process.

QUOTE(Bikerdad @ Nov 16 2008, 11:26 PM) *
Oregon played this tune already, complete with functionally identical Constitutional amendment provisions, and a challenge based on the same rationale as this challenge. It failed.


The situations are different. Domestic partnerships in Oregon are not functionally equal to marriages as they are in California.
Blackstone
QUOTE(entspeak @ Nov 16 2008, 04:49 PM) *
QUOTE(Blackstone @ Nov 16 2008, 02:56 PM) *
It doesn't even mention it implicitly, and it impacts the choice of whom a heterosexual marries just as much as it impacts the choice of whom a homosexual marries.


Not in regards to sexual orientation. A heterosexual is allowed to use their sexual orientation in their choice of who they marry... it is not impacted. It is only the homosexual whose choice is based on sexual orientation that is impacted.

Nothing about "equal protection" holds that everybody's preferences have to be treated equally by the law.

QUOTE
QUOTE
Lots of people would choose to do something that the law forecloses. That doesn't meant they're being discriminated against.


Yes, like blacks wanting to marry whites, right?

In that case they are being discriminated against, becuase it's not just preferences that are being differently treated, it's people. Different set of available spouses for blacks than for whites. Same set of available spouses for homosexuals as for heterosexuals.

But when preferences are the only thing being differently treated, then there's no violation of "equal protection".
entspeak
QUOTE(Blackstone @ Nov 17 2008, 11:16 AM) *
Nothing about "equal protection" holds that everybody's preferences have to be treated equally by the law.


True, but the Courts, from time to time, rule that a particular group of people fit the description of a suspect class, a group - generally a minority - that is the subject of discrimination and require special protection under the Equal Protection Clause. Gays and lesbians are a suspect class in California.

QUOTE
In that case they are being discriminated against, becuase it's not just preferences that are being differently treated, it's people. Different set of available spouses for blacks than for whites. Same set of available spouses for homosexuals as for heterosexuals.


How are the people being discriminated against in that case, Blackstone? Choosing to marry a white person is a matter of preference, is it not? So, it is the preference only that is being treated differently. But, according to Perez v. Sharp, it is this preference - this ability to choose who we marry - that is a fundamental part of marriage: the right to marry is the right to join in marriage with the person of our choosing - meaning, of our preference.

But this denies the issue of sexual orientation and the California State Supreme Court has determined that you can't make restrictions in regards to sexual orientation without a valid State purpose and without a need for the restriction.

A homosexual man is not allowed to marry someone of the same sex - which is what his choice would be if he was allowed to make that choice based on sexual orientation.

This is where your argument falls apart, Blackstone. According to the California State Supreme Court, you can't restrict the fundamental right of an individual based on sexual orientation... this includes the sexual orientation of the individual they choose to marry.

QUOTE
But when preferences are the only thing being differently treated, then there's no violation of "equal protection".


Who we choose to marry is about preference. Preventing blacks from marrying whites is a restriction on preference.
DaytonRocker
QUOTE(entspeak @ Nov 17 2008, 12:31 PM) *
A homosexual man is not allowed to marry someone of the same sex - which is what his choice would be if he was allowed to make that choice based on sexual orientation.

A heterosexual man is not allowed to marry someone of the same sex either no matter why he wanted to make those choices. Jesus, we're just going round and round.
Blackstone
QUOTE(entspeak @ Nov 17 2008, 12:31 PM) *
How are the people being discriminated against in that case, Blackstone? Choosing to marry a white person is a matter of preference, is it not?

But being white and being black are not matters of preference. And since black people were not allowed to marry the same people that white people were allowed to marry, they were being discriminated against because of race. I know you already understand this.

QUOTE
But, according to Perez v. Sharp, it is this preference - this ability to choose who we marry - that is a fundamental part of marriage: the right to marry is the right to join in marriage with the person of our choosing - meaning, of our preference.

They were also ruling according to the meaning of the word marriage as it was understood at the time. See post #4, bottom paragraph.

edited to add:

QUOTE(entspeak @ Nov 17 2008, 01:12 AM) *
QUOTE(Bikerdad @ Nov 16 2008, 11:26 PM) *
Oregon played this tune already, complete with functionally identical Constitutional amendment provisions, and a challenge based on the same rationale as this challenge. It failed.


The situations are different. Domestic partnerships in Oregon are not functionally equal to marriages as they are in California.

So because domestic partnerships are less than equal to marriages in Oregon, that makes Oregon law less objectionable than California law?
entspeak
QUOTE(Blackstone @ Nov 17 2008, 12:13 PM) *
QUOTE(entspeak @ Nov 17 2008, 12:31 PM) *
How are the people being discriminated against in that case, Blackstone? Choosing to marry a white person is a matter of preference, is it not?

But being white and being black are not matters of preference. And since black people were not allowed to marry the same people that white people were allowed to marry, they were being discriminated against because of race. I know you already understand this.


And, the California Supreme Court has recognized that being homosexual is not a matter of preference. This is why gays and lesbians are a suspect class in California. Now, you may not agree with that, but in terms of the law... that's the case in California.

QUOTE
They were also ruling according to the meaning of the word marriage as it was understood at the time. See post #4, bottom paragraph.


The fact that marriage was accepted to be a particular way at one point in time is irrelevant to the fact that the right to marry is the right to join in marriage with the person of one's choice.

QUOTE
So because domestic partnerships are less than equal to marriages in Oregon, that makes Oregon law less objectionable than California law?


Do you mean personally objectionable? Or legally objectionable? This thread is not about how I feel, it is about a constitutional question.

QUOTE
A heterosexual man is not allowed to marry someone of the same sex either no matter why he wanted to make those choices. Jesus, we're just going round and round.


Because of a law that is being challenged... again, the law does not justify it's own existence. It must be related to a valid State purpose and, because it impacts the choices of a suspect class, it must be necessary in order to further that purpose. According to constitutional law, that's the way it works.
droop224
Entspeak
QUOTE
Already explained above. There are two ways to change the California State Constitution, via amendment and revision... it is believed that if there is a substantial change to the constitution, it can only be done via revision. The impact of allowing a change to occur that restricts the rights of a suspect class in spite of the Equal Protection Clause can only happen via revision which requires more than a mere bare majority.

Imagine if Perez v. Sharp - which ruled, via the Equal Protection Clause, to protect a suspect class from the will of a bare majority - could be overturned by that very bare majority. That really doesn't make much sense, so... to do that requires a revision, a vote by 2/3 of the legislature and then by a simple majority of voters.

So, in this case, it would not be the amendment that would be invalidated, it would be the passage of the amendment that would be invalidated - the effect would be the same. Of course, California could then go through the revision process.


Like others, I'm hard pressed to see how this amendment can be seen as substantial. Of course, the word "substantial" leaves a lot of rope for the CSC to make a decision in favor of striking down the amendment process.

For one, the amendment process posesses a way to check the Judicial branch. And if California law gives its' citizens the right to check the judicial branch, it would seem pointless if that same judicial branch say "no you can't check us"

Another point, The CSC already had a chance to rule on the process and it chose not to. Nothing has changed that would all of a sudden change the circumstances around that.
QUOTE
On July 16, 2008, the California Supreme Court denied a petition calling for the removal of Proposition 8 from the November ballot. The petition asserted the proposition should not be on the ballot on the grounds it was a constitutional revision that only the Legislature or a constitutional convention could place before voters. Opponents also argued that the petitions circulated to qualify the measure for the ballot inaccurately summarized its effect. The court denied the petition without comment.[20] As a general rule, it is improper for courts to adjudicate pre-election challenges to a measure's substantive validity. (Costa v. Superior Court (2006) 37 Cal.4th 986, 1005-1006.) The question of whether Proposition 8 is a constitutional amendment or constitutional revision remains unresolved, and a new petition arguing that Proposition 8 is a revision was filed by civil rights groups on November 5, 2008.[21]


For the CSC to now rule that the process was in violation of the Constitution, would be what we call a "late foul" in pick up basket ball. A late foul is when someone shoots, but waits to see if the ball makes it through the hoop, then calls a foul... if it doesn't.

The CSC will be faced with the equivelant of a late foul and it will make them look bad. But if they choose to go through with it, I don't think it will pass the mustard at the USSC.
entspeak
QUOTE(droop224 @ Nov 17 2008, 01:36 PM) *
Like others, I'm hard pressed to see how this amendment can be seen as substantial. Of course, the word "substantial" leaves a lot of rope for the CSC to make a decision in favor of striking down the amendment process.


Well, this amendment restricts the rights of a suspect class. To allow the bare majority - via a bare majority - to overturn the California Supreme Court, part of whose duty is to protect the unpopular minority from the bare majority, essentially guts the protections afforded by the Equal Protection Clause. You would have equal protection only for the majority. That goes against the very spirit of the clause and purpose of the Court as an interpreter of the clause. That is a substantial change in the manner in which the Constitution works. Substantial does not have to mean a certain number of provisions need to change. If one provision has a substantial impact, then it is a substantial change.

QUOTE
For one, the amendment process posesses a way to check the Judicial branch. And if California law gives its' citizens the right to check the judicial branch, it would seem pointless if that same judicial branch say "no you can't check us"


What is the courts duty regarding the Equal Protection Clause? It is supposed to protect a suspect class - which is usually an unpopular minority - from the will of the simple majority. To allow the simple majority to overturn that decision by - well, a simple majority - means that there is no point to having a court make such a decision. Why have a Court protect an unpopular minority from the will of the majority when all the majority needs to do again is simply vote again to overrule it? It leaves the rights protected under the Equal Protection Clause at the whim of the simple majority. That is a substantial change.

There is still a check, it is the revision process, which still involves the citizens... but it should be more difficult to overturn a decision that is intended to protect a suspect class from the majority that would discriminate against it. To toss the decision back to the simple majority that created the restriction in the first place makes the renders the court's function meaningless.

QUOTE
The CSC will be faced with the equivelant of a late foul and it will make them look bad. But if they choose to go through with it, I don't think it will pass the mustard at the USSC.


The CSC denied the petition without comment. They gave no reason for the denial. If they denied it with prejudice or made any sort of comment, then you might have a point. And, as Blackstone pointed out, if they did go through with it, the USSC would not be able to do anything. It is an issue with the California State Constitution and not the Federal.
DaffyGrl
QUOTE
The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a lawsuit the basis of which is that Proposition 8 is invalid because it represents a fundamental alteration of the California Constitution; the suit says that fundamental alterations cannot be accomplished through a popular vote on an initiative. This legal claim hinges on Article 18 of the constitution which says that it, the constitution, can be changed by amendment or by revision. "Amendments", according to Article 18, may be enacted by initiative with a majority vote, whereas "revisions" can only be enacted through a procedure that starts with the California State Legislature agreeing by a revision by a two-thirds vote in the legislature, followed by a statewide vote of the electorate. The lawsuit says that Prop 8, properly understood, is a "revision"; if the court agrees, then Prop 8 could be nullifed.[12],[13] Ballotpedia

This is what I understand the legal issue is with Proposition 8. From what I have read and heard, a two-thirds majority is required to fundamentally change the state constitution to strip away a particular group’s rights, and Prop. 8 did not receive such a majority. Knowing this, I don’t know how this hateful piece of merde made it onto the ballot in the first place – was someone asleep at the wheel over at the Secretary of State’s office? The end result won’t be known until December 13, which is when the final count of all absentee and mail-in ballots will be made.

I don’t see the changes happening any time soon, but am hopeful Prop H8 will die a lingering death, prompting all those religious fundies to further empty their pockets to defend it. thumbsup.gif mrsparkle.gif
entspeak
QUOTE(DaffyGrl @ Nov 17 2008, 03:10 PM) *
From what I have read and heard, a two-thirds majority is required to fundamentally change the state constitution to strip away a particular group’s rights, and Prop. 8 did not receive such a majority.


Actually, a revision must go through committee, be approved by 2/3 of the legislature and then by simple majority of the electorate.

In Raven v. Deukmejan (1990), the California Supreme Court ruled that:

QUOTE
apart from a measure effecting widespread deletions, additions and amendments involving many constitutional articles, "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 .... an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.


Allowing the passage of this amendment - which restricts the rights of a suspect class - would fundamentally alter the manner in which suspect classes are protected. Allowing a bare majority to determine the validity of a restriction on a suspect class renders the function of the Court to protect a suspect class from the will of a bare majority meaningless. To allow passage of this type of amendment via a bare majority has a substantial impact on the way that the Court system works in California.

And in thinking about droop's late foul, I came to this conclusion. Prior to the vote, there was nothing to decide because any possible violation of the Constitution had not occurred yet. The court can't make a decision about something that hasn't happened yet. They may have been waiting for the amendment to actually be adopted. As I understand it, the Court has given some indication that it might now hear the case.
droop224
Entspeak
QUOTE
Well, this amendment restricts the rights of a suspect class. To allow the bare majority - via a bare majority - to overturn the California Supreme Court, part of whose duty is to protect the unpopular minority from the bare majority, essentially guts the protections afforded by the Equal Protection Clause. You would have equal protection only for the majority. That goes against the very spirit of the clause and purpose of the Court as an interpreter of the clause. That is a substantial change in the manner in which the Constitution works. Substantial does not have to mean a certain number of provisions need to change. If one provision has a substantial impact, then it is a substantial change.


Seems like everyone is repeating themselves in these same-sex marriage threads, but I will say my piece like others...

I believe that for it to be substantial change, there needs to be a change to the undelying principles of the Constitution.

I disagree with you. The CSC used the Equal Protection Clause (very recently afterall these years) to strike down laws that didn't allow for Same-sex marriage. The amendment to the Constitution does not change the equal protection clause it only limits the ability of the CSC to use equal protection as a reason to deny the State the ability define marriage as a union between one man and one woman.

It's like saying that anything the court rules unconstitutional becomes part of the constitution.

QUOTE
What is the courts duty regarding the Equal Protection Clause? It is supposed to protect a suspect class - which is usually an unpopular minority - from the will of the simple majority. To allow the simple majority to overturn that decision by - well, a simple majority - means that there is no point to having a court make such a decision. Why have a Court protect an unpopular minority from the will of the majority when all the majority needs to do again is simply vote again to overrule it? It leaves the rights protected under the Equal Protection Clause at the whim of the simple majority. That is a substantial change.


Is it changing an established amendment? Is it changing procedures in the Constitution. The problem is the fact that the Constitution allows for this tyranny of the majority, but to disallow this option would be a substantial change. But you can't say the people have a right to amend the Constitution this way and then say... we don't like what you decided so we are going to take it away from you.

Which leads me to my last point.

QUOTE
The CSC denied the petition without comment. They gave no reason for the denial. If they denied it with prejudice or made any sort of comment, then you might have a point. And, as Blackstone pointed out, if they did go through with it, the USSC would not be able to do anything. It is an issue with the California State Constitution and not the Federal.


I still have a point. Regardless of the fact whether they made a comment or not, it doesn't change the fact that nothing changed. The issue came before the CSC of whether this issue could be brought to a simple vote of the populace. The issue was one of procedure. The only thing that has changed is the outcome of the vote, which has nothing to do with procedure.

So now the appearance if they overturn based on the procedure of how the amendment occurred is thus:

The CSC did not like the outcome of the vote by the People of the State and so decided to use their power to create a loophole so that their will could rule.

That looks really bad on them, IMO.
entspeak
QUOTE(droop224 @ Nov 17 2008, 07:16 PM) *
I believe that for it to be substantial change, there needs to be a change to the undelying principles of the Constitution.


Well, there isn't a precedent to support your belief - unless you're willing to provide one; there is one that supports mine... and that precedent will be examined. If you can provide a precedent or any support for your belief, then by all means... until that point it is merely an unsubstantiated belief.

QUOTE
The amendment to the Constitution does not change the equal protection clause it only limits the ability of the CSC to use equal protection as a reason to deny the State the ability define marriage as a union between one man and one woman.

It's like saying that anything the court rules unconstitutional becomes part of the constitution.


I never said that the Supreme Court would be overturning the amendment as unconstitutional, I said the passage would be unconstitutional. The very same amendment could still be passed and adopted via revision.



QUOTE
Is it changing an established amendment? Is it changing procedures in the Constitution.


Again, please provide a precedent to support your argument that this is the only type of change that can be considered "substantial".

QUOTE
The issue came before the CSC of whether this issue could be brought to a simple vote of the populace. The issue was one of procedure. The only thing that has changed is the outcome of the vote, which has nothing to do with procedure.


But in order for a possible the CSC to determine whether a particular process has violated the Constitution, the violation has to actually occur. Can you provide an instance where a Supreme Court has addressed a possible violation of the Constitution before anyone was allegedly harmed by that violation? In order to have standing, you have to be harmed by an act.

And you seem to be putting out a lot of opinions. It would be nice if you could support them. I feel, I believe, in my opinion, is all grand and good, but I can't debate how you feel or what you personally believe if you don't provide support for that belief. I've provided a precedent to support my argument. Where's your support?
Jobius
Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?

No. I voted against 8, I'm sorry it passed, and I think it's stupid that California allows amendments with a single 50% + 1 vote, but that's the way it is.

entspeak asked for precedents, and the key one is People v. Frierson, 25 Cal. 3d 142 (1979). The California Supreme Court had previously held that the death penalty was unconstitutional, violating the California constitution's prohibition of cruel and unusual punishment. I'll let Justice Stanley Mosk tell the rest of the story:

QUOTE
The people of California responded quickly and emphatically, both directly and through their elected representatives, to callously declare that whatever the trends elsewhere in the nation and the world, society in our state does not deem the retributive extinction of a human life to be either cruel or unusual. (Cal. Const., art. I, § 27, adopted Nov. 7, 1972; Stats. 1973, ch. 719, p. 1298; Stats. 1977, ch. 316, p. 1255; Pen. Code, §§ 190-190.5, added by Prop. 7, Gen. Elec. (Nov. 7, 1978).)

"Cruelty" is not definable with precision. It is in the eye of the beholder: what may be perceived as cruelty by one person is seen as justice by another. Thus, this court, in ascertaining the permissible limits of punishment, must look in the first instance to those values to which the people of our state subscribe. That as one individual I prefer values more lofty than those implicit in the macabre process of deliberately exterminating a human being does not permit me to interpret in my image the common values of the people of our state.

If giving the state back the right to actually kill people isn't a "substantial" change to the state constitution, I don't see how changing the name of same-sex unions is. Not that I'd put any money on it, mind you. entspeak's "protected class" argument is a doctrine that's pretty much designed to thwart the (backward, reactionary, callous, cruel, etc.) will of the people vs. the (enlightened, superior) will of judges, so it's quite possible his argument will prevail.

On the other hand, supreme court justices have to stand for election in California. The ones who temporarily abolished the death penalty in the 70s got thrown out on their ears. It would take courage, as well as hubris, to invalidate Proposition 8 on procedural grounds.
entspeak
QUOTE(Jobius @ Nov 17 2008, 10:46 PM) *
entspeak asked for precedents, and the key one is People v. Frierson, 25 Cal. 3d 142 (1979).


From Frierson:

QUOTE
even a relatively simple enactment may accomplish such far reaching changes in the nature of our {Page 25 Cal.3d 187} basic governmental plan as to amount to a revision.


The above quote supports my argument, because, even in this case, there is a recognition that a simple enactment might have a larger impact... and that if the impact is substantial the change should be done via revision.

So, why in Frierson did they say that the death penalty amendment could still be passed via amendment and did not require passage via revision?

QUOTE
As we have explained, we retain broad powers of judicial review of death sentences to assure that each sentence has been properly and legally imposed and to safeguard against arbitrary or disproportionate treatment. In addition, we possess unrestricted authority to measure and appraise the constitutionality of the death penalty under the federal Constitution, in accordance with the guidelines established by the United States Supreme Court. We are thus led to the conclusion that the constitutional change worked by section 27 is not so broad as to constitute a fundamental constitutional revision.


The Court felt that they still could do their job. In this instance however, the passage by a bare majority essentially guts the court's ability to protect suspect classes from violations of the Equal Protection Clause by a bare majority. That is a huge difference.

The ability of a bare majority - via a vote by the bare majority - to overturn a decision intended to protect a suspect class from that very majority, has a devastating impact on the Court's ability to protect suspect classes. It simply hands the suspect class back to the wolves.
Jobius
QUOTE(entspeak @ Nov 17 2008, 10:34 PM) *
The ability of a bare majority - via a vote by the bare majority - to overturn a decision intended to protect a suspect class from that very majority, has a devastating impact on the Court's ability to protect suspect classes. It simply hands the suspect class back to the wolves.

Let's say you're right, that defining "marriage" as an institution limited to "one man and one woman," is unconstitutional, despite such language having been inserted into the constitution by a normal amendment process. What's so special about "two men" or "two women"? If gays are a suspect class, surely Muslims are as well. And polygamous Muslims are likely more subject to discrimination -- even though they may be lawfully married in another country.

I know we both can come up with reasons why state-sanctioned polygamy would be bad, while monogamous same-sex marriage is either harmless or good. I just don't see how any of them hold up against the argument that a "fundamental right" is being denied to a "suspect class." Those are the two trump cards that the CSC pulled out of their sleeves when they struck down the first marriage law. If they now say that the "fundamental right" and "suspect class" cards beat anything held by the voters, I think it's fair to assume that polygamy is legal in California, until 2/3 of the legislature says it isn't.
entspeak
QUOTE(Jobius @ Nov 18 2008, 01:50 AM) *
What's so special about "two men" or "two women"? If gays are a suspect class, surely Muslims are as well. And polygamous Muslims are likely more subject to discrimination -- even though they may be lawfully married in another country.


As I stated very clearly in the opening post, this topic is not about the nature of homosexual relationships. There are many laws on the books in California that have been passed with the specific intent to end discrimination against gays and lesbians and discrimination based on sexual orientation. Based on that alone, it is clear to me why the CSC might consider gays and lesbians a suspect class. Prop 8 does nothing to alter the courts ruling that gays and lesbians are a suspect class.

I am not going to debate in this thread about a non-existent case where the Court has determined that polygamous Muslims have been ruled a suspect class. This topic is about the constitutional question about the passage of Prop 8 - a question of revision or amendment.

QUOTE
If they now say that the "fundamental right" and "suspect class" cards beat anything held by the voters,


If they now?! The history of protecting suspect classes and fundamental rights from the will of a bare majority goes back much farther than this year. If the California Supreme Court in fulfilling it's mandate as part of the judiciary branch makes a decision to protect an unpopular group of people from the will of the bare majority, it should take more than simply another vote by the very same bare majority to overturn it; otherwise, the role of the judiciary in upholding the Equal Protection Clause is meaningless.

California's process is not unlike the federal process regarding the Supreme Court. If the Supreme Court makes a ruling on the consitutionality of a law, it can be overruled by changing the Constitution. That requires more than simply another run through the process of passing a law.
droop224
QUOTE
Well, there isn't a precedent to support your belief - unless you're willing to provide one; there is one that supports mine... and that precedent will be examined. If you can provide a precedent or any support for your belief, then by all means... until that point it is merely an unsubstantiated belief.


Welcome to America's Courthouse... wait... this is America's Debate right??? How does precedent substantiate belief. Do you know what a precedent is??

It's an Opinion, based on Opinions that are based on opinions. In the court of law they may be Godly, in a debate they mean jack unless you are using them to support a fact. If I state a belief or an opinion and call it a belief or opinion, then I don't need to back up my opinion with other people's opinion.

You seem to come from another school of thought where your opinion turn into facts if you find precedent to that opinion.

Anyways Jobius gave you a precedent(thanks for the assist)... did it matter?? tongue.gif No, cause we find ways to manipulate opinions. In any legal case two lawyers both come in with a pocket full of opinions so the Judge can give his opinion on whose opinions are better.

QUOTE
The above quote supports my argument, because, even in this case, there is a recognition that a simple enactment might have a larger impact... and that if the impact is substantial the change should be done via revision.


The quote supports your argument, but the ruling of the case contradicts your argument. The Constitution states you can not have cruel and unusual punishment. It protects the people of California from cruel and unusual punishment. The CSC had ruled the death Penalty to be "cruel and unusual." By your logic you use, a bare majority vote of the people could not change the Constitution on this issue at this point.

QUOTE
The Court felt that they still could do their job. In this instance however, the passage by a bare majority essentially guts the court's ability to protect suspect classes from violations of the Equal Protection Clause by a bare majority. That is a huge difference.


Only in your mind is there a huge difference. By your logic if the CSC ruled that Capital punishment is "cruel" then it can not protect the citizens of the State from "Cruel" punishment, if a simple bare majority voted that "cruel" is not "cruel."

By doing this a simple majority has simply amended the Constitution to allow for a cruel and unusual punishment. Therefore it is in direct contradiction to the The Constitution in regards to the amendment against Cruel and unusual punishment, therefore the effects are to far reaching to the basic governmental plan, therefore the CSC should not have allowed the vote to stand because it is a revision, not an amendment.

This is your logic.
entspeak
QUOTE(droop224 @ Nov 18 2008, 09:08 AM) *
In the court of law they may be Godly, in a debate they mean jack unless you are using them to support a fact. If I state a belief or an opinion and call it a belief or opinion, then I don't need to back up my opinion with other people's opinion.


Well, this thread is very specifically and intentionally placed in the Constitutional Debate section and I framed the opening post very particularly. If you don't like the way that this particular debate is framed, then you do not need to participate.

This debate is about the courts and constitutional law.

QUOTE
The quote supports your argument, but the ruling of the case contradicts your argument.


Your saying that if what was provided in my quote was not true, they still would have ruled the same way?
stet007
The Supreme Court has recognized that race, national origin, religion, and alienage are suspect classes, and therefore any laws discriminating against these classes are analyzed under strict scrutiny.

Any other “group”, such as homosexuality, is not constitutionally a group that is qualified to be discriminated against. To seek discriminatory status on the basis of sexual preference is an attempt to twist the state or federal constitution by using political means.

Saying that homosexuality is a “class” that can be discriminated against is like saying people, who wish engage in bestiality, are a “class” that anti-discrimination laws should protect.

The point I am making here is that homosexuality is a choice. Not a suspect class. Any meddling the SCOTUS does in the definition of marriage, is just that meddling. It will be overturned in the future. The fact of the matter is the majority of U.S. citizens favor the protection of the sacred act of heterosexual marriage. That is why congress passed The Defense of Marriage Act of 1996. It is a culture war , NOT a constitutional one.

I would have to side with Justice Scalia who said in his dissent of Romer vs. Evans:

"I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes."

And also :

"Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent."


I think this statement more mirrors the will of the people and also abides more with true constitutional law, with regards to this topic.


droop224
Entspeak
QUOTE
Well, this thread is very specifically and intentionally placed in the Constitutional Debate section and I framed the opening post very particularly. If you don't like the way that this particular debate is framed, then you do not need to participate.

This debate is about the courts and constitutional law.


And I understand that. However the fact that this debate deals with the Constitution and constitutional law does not mean we are limited to debating as if we were in court, using precedents and court opinions. If I am using a case to illustrate my point, then absolutely I should cite the case and post a link.

But in this board of equals a judges opinion holds no more weight than mine.

It may come to be that the CSC may well rule on the matter of revision or amendment in a manner that you think they should. That isn't going to make you right and me wrong or vice versa. It's just that their opinion will concur with one of ours. Nothing more, nothing less.

QUOTE
Your saying that if what was provided in my quote was not true, they still would have ruled the same way?



Can you clarify for me?
entspeak
QUOTE(stet007 @ Nov 18 2008, 09:28 AM) *
The Supreme Court has recognized that race, national origin, religion, and alienage are suspect classes, and therefore any laws discriminating against these classes are analyzed under strict scrutiny.

Any other “group”, such as homosexuality, is not constitutionally a group that is qualified to be discriminated against. To seek discriminatory status on the basis of sexual preference is an attempt to twist the state or federal constitution by using political means.


It has long been held that State Supreme Courts are have the power to interpret their State Constitutions as affording more protections than the Federal Constitution... they just can't offer less. The California Supreme Court has ruled that gays and lesbians are a suspect class.
stet007
QUOTE(entspeak @ Nov 18 2008, 09:44 AM) *
QUOTE(stet007 @ Nov 18 2008, 09:28 AM) *
The Supreme Court has recognized that race, national origin, religion, and alienage are suspect classes, and therefore any laws discriminating against these classes are analyzed under strict scrutiny.

Any other “group”, such as homosexuality, is not constitutionally a group that is qualified to be discriminated against. To seek discriminatory status on the basis of sexual preference is an attempt to twist the state or federal constitution by using political means.


It has long been held that State Supreme Courts are have the power to interpret their State Constitutions as affording more protections than the Federal Constitution... they just can't offer less. The California Supreme Court has ruled that gays and lesbians are a suspect class.



After reading the Romer vs. Evans more in depth, I see now that the CSC may well decide to rule on this case. It is interesting to note that it didn't want any part of the process before it was so widely protested. From what I gather they think/thought it was not a legilative branch decision. Thanks for pointing out my error. I see now that the SCOTUS does in several rulings fall back on the state SC as long as it offers more.
entspeak
I believe that may be because no violation had yet occurred. You can't rule against a violation of the Constitution until the violation actually occurs.
Blackstone
QUOTE(entspeak @ Nov 17 2008, 01:33 PM) *
And, the California Supreme Court has recognized that being homosexual is not a matter of preference.

I can see how it's not a matter of choice. But many preferences are not a matter of choice. One does not often "choose" to have a preference for one thing over another. Most of the time, it just exists, for whatever reason. Nonetheless, the law is not required to treat all preferences equally, even when one does not choose to have those preferences.

QUOTE
QUOTE
They were also ruling according to the meaning of the word marriage as it was understood at the time. See post #4, bottom paragraph.


The fact that marriage was accepted to be a particular way at one point in time is irrelevant to the fact that the right to marry is the right to join in marriage with the person of one's choice.

No, not just accepted to be a particular way, but universally understood to have a particular meaning. Otherwise, polygamy would have been legal in California.

QUOTE
QUOTE
So because domestic partnerships are less than equal to marriages in Oregon, that makes Oregon law less objectionable than California law?


Do you mean personally objectionable? Or legally objectionable?

Legally.
entspeak
QUOTE(Blackstone @ Nov 18 2008, 11:29 AM) *
QUOTE(entspeak @ Nov 17 2008, 01:33 PM) *
And, the California Supreme Court has recognized that being homosexual is not a matter of preference.

I can see how it's not a matter of choice. But many preferences are not a matter of choice. One does not often "choose" to have a preference for one thing over another. Most of the time, it just exists, for whatever reason. Nonetheless, the law is not required to treat all preferences equally, even when one does not choose to have those preferences.


No, no, no. Preference and choice in this instance are synonyms. To have one's preference is to have one's choice. When the law says the right to marry is the right to join in marriage with the person of one's choosing, they are referring to preference. And when the court says you can't restrict that choice based solely on sexual orientation, they are saying that you can't tell a person that they can't choose to marry a person of the same sex.


QUOTE
No, not just accepted to be a particular way, but universally understood to have a particular meaning. Otherwise, polygamy would have been legal in California.


Bigamy/polygamy is a separate law completely. The way that marriage is constructed today, polygamy means "multiple contracts". The crime of bigamy is the entering into a marriage contract while you already have a marriage contract to someone else. Separate issue. Unrelated issue.

QUOTE
Legally.


That would certainly make for an interesting debate in another thread. But that wasn't what I was referring to with my comment. The situations are different where the claim was that they were the same. Legally, it is a different situation.
Jobius
QUOTE(entspeak @ Nov 18 2008, 05:43 AM) *
QUOTE(Jobius @ Nov 18 2008, 01:50 AM) *
What's so special about "two men" or "two women"? If gays are a suspect class, surely Muslims are as well. And polygamous Muslims are likely more subject to discrimination -- even though they may be lawfully married in another country.


As I stated very clearly in the opening post, this topic is not about the nature of homosexual relationships. There are many laws on the books in California that have been passed with the specific intent to end discrimination against gays and lesbians and discrimination based on sexual orientation. Based on that alone, it is clear to me why the CSC might consider gays and lesbians a suspect class. Prop 8 does nothing to alter the courts ruling that gays and lesbians are a suspect class.

I am not going to debate in this thread about a non-existent case where the Court has determined that polygamous Muslims have been ruled a suspect class. This topic is about the constitutional question about the passage of Prop 8 - a question of revision or amendment.

I apologize for taking this off topic, but I think it's a legitimate concern, at least if the court is serious about interpreting the law and following precedent. Religion was a suspect classification before homosexuality, so I don't think it's too much of a stretch to imagine the religiously polygamous attempting to use this precedent to further expand the definition of marriage.

Of course, if the courts are not interested in interpreting the law and following precedent, and are merely acting as super-legislators, this won't matter. They'll ignore the "fundamental right" of the suspect class, because it's politically untenable to grant a state sanction to plural marriage. That's the more likely result, but if I were a judge, I'd have a hard time doing that, based on current precedent.

QUOTE(entspeak @ Nov 18 2008, 05:43 AM) *
California's process is not unlike the federal process regarding the Supreme Court. If the Supreme Court makes a ruling on the consitutionality of a law, it can be overruled by changing the Constitution. That requires more than simply another run through the process of passing a law.

The difference, of course, is that California allows its constitution to be amended with a single 50% + 1 vote. I'd like to see that made more difficult, but that would take a constitutional convention. The justices may think that the ease of amending the constitution makes it difficult to "do their jobs," but the voters have a job to do as well. Who's looking out for them?
Bikerdad
QUOTE(Entspeak)
QUOTE

Oregon played this tune already, complete with functionally identical Constitutional amendment provisions, and a challenge based on the same rationale as this challenge. It failed.

The situations are different. Domestic partnerships in Oregon are not functionally equal to marriages as they are in California.


The situations are the same. The Oregon case was about same-sex marriage. This is the text of the Oregon initiative which amended their Constitution:
"It is the policy of Oregon, and its political subdivisions, that only a marriage
between one man and one woman shall be valid or legally recognized as a
marriage."


From the Oregon Appelate Court's opinion:
Plaintiffs brought this action for declaratory relief against the Governor and the State of
Oregon (the state), seeking a declaration that 2004 Ballot Measure 36, a voter-initiated
measure, which prohibited recognition of same-sex marriages, did not comply with the
provisions of Article XVII, sections 1 and 2, of the Oregon Constitution. On cross-motions
for summary judgment, the trial court entered judgment in favor of defendants. Plaintiffs
appeal, raising two overarching issues: (1) Did Measure 36 embody a "revision" to the
constitution that could not originate from a voter initiative? (2) Alternatively, is Measure
36 invalid because it effected multiple amendments to the Oregon Constitution that are not
"closely related"? As did the trial court, we answer both of those questions in the negative.



It seems as though the SSM advocates are going to hang their hopes on two considerations. First is the "suspect class" argument. Second is the "retroactivity" issue. Both have problems.

"Suspect class" trips on a key consideration if CSC tosses Prop 8. The Federal courts do not grant "suspect classification" to sexual orientation. The Federal courts are Constitutionally bound to guarantee a "Republican Form of Government" to all the States, and the key element of such a form is "power to the people." Overturning the explicit will of the people, multiple times on the same issue, by judicial decree, violates Article IV, Section 4, of the US Constitution.

This is essentially the same problem with the retroactivity issue, i.e., what happens to all those "marriages"? Unfortunately for the Cali Supremes, they refused to stay their ruling on Prop 22 until after Prop 8 was decided. The existing SSM marriages are literally a creation of the Cali Supremes, in opposition to the people. Why did the CSC not stay? High minded rhetoric would say "justice (i.e. a right) delayed is justice denied"! Common sense says "in order to muddy the water."

The "fundamental right" that's being rolled back is a creation of the CSC, based on "suspect classification", another creation of the CSC. Compounding their error, the SCS deliberately rushed matters to disallow the people of California a say. Simply put, the California Supreme Court has denied the citizens of the State of California a "Republican Form of Government".

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.

entspeak
QUOTE(Jobius @ Nov 18 2008, 09:33 PM) *
I apologize for taking this off topic, but I think it's a legitimate concern, at least if the court is serious about interpreting the law and following precedent. Religion was a suspect classification before homosexuality, so I don't think it's too much of a stretch to imagine the religiously polygamous attempting to use this precedent to further expand the definition of marriage.


Sure, but I have never stated anywhere that that the government does not have the power to restrict the rights of a suspect class. I have always stated that no right is absolutely inviolable. Now, I do not know if the California Supreme Court has ever been asked to address the question. If you can find one then we could debate that decision - preferably in another thread.

QUOTE
The difference, of course, is that California allows its constitution to be amended with a single 50% + 1 vote. I'd like to see that made more difficult, but that would take a constitutional convention. The justices may think that the ease of amending the constitution makes it difficult to "do their jobs," but the voters have a job to do as well. Who's looking out for them?


But, in the cases both you and I have cited - and others, as I understand it, the courts have interpreted Article XVIII in a way that determines when an initiative needs to be passed by amendment and when it needs to be passed by revision. Certainly, the amendment that allowed the death penalty made it difficult to do their jobs, but, as they themselves claimed in that ruling, they still had avenues to protect the rights of those who faced the death penalty. But to allow this initiative to pass the way it did has far reaching implications and makes it, not just difficult, but impossible for the court to do it's job in protecting the rights of suspect classes from the will of a bare majority.

QUOTE(Bikerdad)
The situations are the same.


No, they aren't. The process that Oregon uses for an "amendment" is substantially different from that of California.
logophage
QUOTE(entspeak @ Nov 18 2008, 08:56 PM) *
But, in the cases both you and I have cited - and others, as I understand it, the courts have interpreted Article XVIII in a way that determines when an initiative needs to be passed by amendment and when it needs to be passed by revision. Certainly, the amendment that allowed the death penalty made it difficult to do their jobs, but, as they themselves claimed in that ruling, they still had avenues to protect the rights of those who faced the death penalty. But to allow this initiative to pass the way it did has far reaching implications and makes it, not just difficult, but impossible for the court to do it's job in protecting the rights of suspect classes from the will of a bare majority.

A similar argument can be made between marriage and domestic partnerships. That is, domestic partnership is still available as an alternative avenue for gay couples. The amendment may not be as far reaching as you imply, entspeak.
entspeak
QUOTE(logophage @ Nov 19 2008, 12:41 AM) *
A similar argument can be made between marriage and domestic partnerships. That is, domestic partnership is still available as an alternative avenue for gay couples. The amendment may not be as far reaching as you imply, entspeak.


How does the existence of an alternative in the law in this instance mean that the manner in which this amendment was passed will not gut the ability of the Supreme Court to make rulings that are intended to protect an unpopular minority (whatever that minority might be in future) from invidious discrimination by a bare majority?
This is a simplified version of our main content. To view the full version with more information, formatting and images, please click here.
Invision Power Board © 2001-2019 Invision Power Services, Inc.