California Court to Weigh Gay Marriage Ban

[Alt+F4]

What a mess...

And for all the passion surrounding the issue of same-sex marriage, the question before the court is one that may seem technical, even dry: Does the initiative approved by Californians merely amend the State Constitution or, as gay rights groups hope the court will rule, revise it?
...
That court decision, in May, identified gay men and lesbians as a group that had historically suffered discrimination, and opened the door for some 18,000 same-sex couples to marry before Proposition 8 passed in November. The justices are also expected to rule on the validity of those marriages when they now decide the fate of the proposition.
...
Kenneth W. Starr, dean of the Pepperdine University School of Law and a former federal appeals judge and United States solicitor general, will argue before the justices on behalf of the measure’s backers. In a brief (http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/hollingsworthresponse.pdf), Mr. Starr said efforts to overturn Proposition 8 ignored “the will of the people” expressed in an “open, fair election.”

Hmmm. I wonder how Mr. Starr would feel if "the will of the people" in say Prop 8A decided to invalidate his marriage to Mrs. Starr.

Linky: http://www.nytimes.com/2009/03/05/us/05marriage.html?ref=us

[BPSCG]

This strikes me as what happens when the legislature is too cowardly to make laws. It abdicates the responsibility to the courts, who are not supposed to have that responsibility, or to the general population through the referendum process.

[Alt+F4]

The revolution will be televised!

http://www.calchannel.com/

[Alt+F4]

This strikes me as what happens when the legislature is too cowardly to make laws. It abdicates the responsibility to the courts, who are not supposed to have that responsibility, or to the general population through the referendum process.

I totally agree. It appears that the Court will uphold both Prop 8 AND the validity of the 18,000 marriages. Absolutely ridiculous.

[themusicteacher]

It's amazing how many ways and justifications people can manufacture for violating others' human rights. My father-in-law, several years ago, said to me that he thought gay marriage should be banned because gays are "social deviants." Trying to sound reasonable, he said that it's the govt's job to ensure that only those things that are considered "norms" are protected and promulgated and protected under the law. He said that the govt has no business being a proponent of any "behavior" that "deviates from the norm." Of course, the assumption here is that "gay" is a behavior or a choice while hetero is simply a way of being that is "normal" (apparently he's an expert on human nature, biology, neurology, human sexuality, etc; or maybe he's just a homophobe making sure the "gay agenda" isn't allowed to take root). To be fair, he hates the idea of there being any such notion as the govt protecting anyone who is the target of discrimination based on arbitrary characteristics outside of what he considers "normal." Of course, there is no arguing with him because he's right and he dismisses any argument you may have with a snort of derision, He has no desire to have an honest debate on human rights. He simply shuts down the debate with talk of "social norms" and "deviants" and such, trying to sound clinical and scientific/anthropological. It's all very ridiculous but this is the method of your typical anti-gay marriage person: obfuscate and make it about "who will think of the children!" arguments.

[toddjh]

This case is only incidentally about same-sex marriage.

The real issue being decided is, is it tolerable to allow a minority (legally speaking, a "suspect classification") to be stripped of their fundamental rights by a simple majority popular vote?

In some ways it's a shame that the case which brought this issue to light is so controversial, because this is actually a very important thing, and one that I think more people would agree about if there weren't biases clouding their judgment. If this were about freedom of speech or religion -- something that most people are at least nominally in favor of -- I don't think there would be much disagreement at all. On the other hand, if it were about guns, I'd pretty much expect to see the current sides flip around 180 degrees. It really bothers me that people are so concerned about outcomes that they don't really stop to think about the process that leads us there.

Personally, I think it's madness to uphold Prop 8. Not because of anything to do with same-sex marriage, but because it would be giving a huge legal stamp of approval to the tyranny of the majority.

Alt+F4, where did you hear that the court would uphold Prop 8 and the marriages? I've read some of the briefs but I haven't heard any "inside information" about the court.

[Alt+F4]

Alt+F4, where did you hear that the court would uphold Prop 8 and the marriages? I've read some of the briefs but I haven't heard any "inside information" about the court.

Today's Los Angeles Times:

Legal analysts have said the court is more likely to uphold the existing same-sex marriages than to overturn Proposition 8.

http://latimesblogs.latimes.com/lanow/2009/03/prop-8-hearing.html

[Shalamar]

I hope I'm wrong, But it will probably be upheld, because its 'The will of the people'.

people who favour prop 8 really see nothing wrong with denying a minority certain rights.

[The Nimble Pianist]

Today's Los Angeles Times:



http://latimesblogs.latimes.com/lanow/2009/03/prop-8-hearing.html


I read the original article on LA Times (a notoriously crappy paper), not the second hand account on whosoever blog that is.

The original article said that a conservative constitution scholar suggested that the court may try to save their own butts by reaching such a compromise.

I'm not so sure that the courts will actually strike 'marriage' from the legal vernacular and reduce all marriages to 'civil unions'.

[The Nimble Pianist]

This strikes me as what happens when the legislature is too cowardly to make laws. It abdicates the responsibility to the courts, who are not supposed to have that responsibility, or to the general population through the referendum process.

This (situation) strikes me as what happens when a state has such a stupid referenda process as to necessitate only a simple majority in passing constitutional amendments.

We might as well have our constitution written on a white-board.

[toddjh]

I'll be very disappointed if they uphold it. Almost as disappointed as I already am with whoever picked up a crayon and wrote the California constitution.

From what I understand, if it's upheld here, there's still a possible Federal challenge, on the grounds that California is constitutionally required to provide "a republican form of government" to its citizens, and leaving such vital things as fundamental rights up to a popular vote doesn't qualify. I don't know what the likely outcome of that would be.

[Alt+F4]

I read the original article on LA Times (a notoriously crappy paper), not the second hand account on whosoever blog that is.

I thought I was linking directly to the Los Angeles Times website. Am I wrong?

[The Nimble Pianist]

I thought I was linking directly to the Los Angeles Times website. Am I wrong?


You were, I just haven't had any coffee yet and so my reading comprehension is like that of a 5 year old right now :o

Pardon me.

[The Nimble Pianist]

I'll be very disappointed if they uphold it. Almost as disappointed as I already am with whoever picked up a crayon and wrote the California constitution.

From what I understand, if it's upheld here, there's still a possible Federal challenge, on the grounds that California is constitutionally required to provide "a republican form of government" to its citizens, and leaving such vital things as fundamental rights up to a popular vote doesn't qualify. I don't know what the likely outcome of that would be.


I don't think the SCOTUS is sympathetic to this being a "civil rights" issue, which is precisely why all the plaintiffs in this case are being very careful to not appeal to the federal constitution, thus evading any possible appeal to the SCOTUS. The HRC even urged activists to essentially keep quiet, don't start any new suits, and leave the dirty work to them.

[toddjh]

I don't think the SCOTUS is sympathetic to this being a "civil rights" issue, which is precisely why all the plaintiffs in this case are being very careful to not appeal to the federal constitution, thus evading any possible appeal to the SCOTUS.

They didn't want the SCOTUS weighing in on whether sexual preference was a suspect classification. Like you said, they wanted to keep that entirely within California's legal framework so that no further appeal was possible, but this is different.

They wouldn't be asking them to rule on anything relating to gay marriage or in re Marriage Cases. They'd be asking them to rule on whether California's amendment process is constitutional at the federal level.

[Alt+F4]

I don't think the SCOTUS is sympathetic to this being a "civil rights" issue, which is precisely why all the plaintiffs in this case are being very careful to not appeal to the federal constitution, thus evading any possible appeal to the SCOTUS. The HRC even urged activists to essentially keep quiet, don't start any new suits, and leave the dirty work to them.

Good point. I wish I had more faith in the HRC though. It would be wise to wait for changes on the SCOTUS. I predict both Ginsberg and Stevens will retire before the new session begins.

[Beerina]

I must be missing something. Amend and revise are the same thing in this context, so it must have some legal meaning of which I'm not aware. Wouldn't one revise the constitution with an amendment? "Paragraph 3 is struck. Sentence 2 of paragraph 4 shall now read xxxxx", that kind of thing.


Or is the issue whether it amends it as of the time of amendment, or whether it applies retroactively, thus voiding those 18,000 marriages, which seems like the case.

I don't know, was the wording meant as a clarification to point out that interpretations that allowed, indeed required allowing gay marriages were, in fact, incorrect? Or does it just say "a marriage shall be 1 man and 1 woman"?

[rwguinn]

I must be missing something. Amend and revise are the same thing in this context, so it must have some legal meaning of which I'm not aware. Wouldn't one revise the constitution with an amendment? "Paragraph 3 is struck. Sentence 2 of paragraph 4 shall now read xxxxx", that kind of thing.


Or is the issue whether it amends it as of the time of amendment, or whether it applies retroactively, thus voiding those 18,000 marriages, which seems like the case.

I don't know, was the wording meant as a clarification to point out that interpretations that allowed, indeed required allowing gay marriages were, in fact, incorrect? Or does it just say "a marriage shall be 1 man and 1 woman"?
Except Constitutionally, as I recall, retroactive laws are illegal.
So how do you strike those unions already sanctified?

[toddjh]

I must be missing something. Amend and revise are the same thing in this context, so it must have some legal meaning of which I'm not aware. Wouldn't one revise the constitution with an amendment? "Paragraph 3 is struck. Sentence 2 of paragraph 4 shall now read xxxxx", that kind of thing.

The terms come from the California constitution, which describes two methods for modifying it:

An "amendment" can be proposed either by a two-thirds vote in the state legislature or with a petition containing a certain number of signatures, and passed by referendum. This is what Prop 8 was.

A "revision" requires both a referendum and a two-thirds vote in the state legislature to pass, which is more in line with what you'd expect from a constitutional amendment process.

Obviously, the higher standard for passing revisions means that that's intended for more significant changes. Unfortunately, the California constitution is vague about what types of changes require what types of process. So that's what this legal challenge is about: whether stripping a minority group of a fundamental right is "big enough" to require the more stringent revision process instead of the amendment process.

[uruk]

I don't see how California and the SCOTUS cannot see Prop 8 as discrimination. Allowing it puts the foot in the door for other deprivations based on majority rule against a group of people.

I could put a proposition up in California to not allow Star Trek fans to congregate in conventions because thier activities there is against god, nature and just plain offends me. I'll call it propostion 1701.

There is no ligitimate reason on the face of this earth that gays should not be allowed to get legaly married. The definition of marriage argument that people like Huckabee and other use is a cheap and weak argument.

[ponderingturtle]

I must be missing something. Amend and revise are the same thing in this context, so it must have some legal meaning of which I'm not aware. Wouldn't one revise the constitution with an amendment? "Paragraph 3 is struck. Sentence 2 of paragraph 4 shall now read xxxxx", that kind of thing.


Well it depends, in the federal constitution you can not make revisions, only amendments. There is still an 18th ammendment to the constitution there, even if it was repealed by the 20th ammendment.

State constiutions might be different though.

[ponderingturtle]

I don't see how California and the SCOTUS cannot see Prop 8 as discrimination. Allowing it puts the foot in the door for other deprivations based on majority rule against a group of people.

The question is not if something is discrimination but is it legal discrimination or illegal discrimination. There is good discrimination (refusing drivers liciences to the blind) and bad discrimination (refusing a marriage licience to an inter racial couple). So the fact that it is discrimination is not the issue, the issue is is the discrimination legal discrimination or not.

I am not convinced that the current court would rule that it was improper discrimination.

In 50 years will this be a huge embarassment like those fighting interracial marriage 50 years ago? Sure, but not yet.

I could put a proposition up in California to not allow Star Trek fans to congregate in conventions because thier activities there is against god, nature and just plain offends me. I'll call it propostion 1701.

This would violate freedom of assembely, something that is a recognized right and thus illegal discrimination.

There is no ligitimate reason on the face of this earth that gays should not be allowed to get legaly married. The definition of marriage argument that people like Huckabee and other use is a cheap and weak argument.

Sure but it will take time for all those people do die off and get out of the courts and politics.

[toddjh]

I don't see how California and the SCOTUS cannot see Prop 8 as discrimination. Allowing it puts the foot in the door for other deprivations based on majority rule against a group of people.

For California, I agree. It will be a travesty if they uphold Prop 8.

At the federal level, though, things are a little more complicated. California recognizes homosexuals as a "suspect classification," also known as a "protected class." This means that laws which discriminate against them need to pass the highest level of judicial review -- basically, they need to have a damn good reason for it.

But the federal courts don't (yet) view sexual preference the same way. Laws which discriminate against homosexuals still need to pass review, but the standard is lower.

I could put a proposition up in California to not allow Star Trek fans to congregate in conventions because thier activities there is against god, nature and just plain offends me. I'll call it propostion 1701.

Well, yes and no. You could do that, and (if Prop 8 is upheld) it would pass muster at the state level. But, unlike Prop 8, it could be overturned at the federal level, because religious discrimination is a big constitutional no-no.

[rwguinn]

I don't see how California and the SCOTUS cannot see Prop 8 as discrimination. Allowing it puts the foot in the door for other deprivations based on majority rule against a group of people.

I could put a proposition up in California to not allow Star Trek fans to congregate in conventions because thier activities there is against god, nature and just plain offends me. I'll call it propostion 1701.

There is no ligitimate reason on the face of this earth that gays should not be allowed to get legaly married. The definition of marriage argument that people like Huckabee and other use is a cheap and weak argument.
Even more to the point:
It would be illegal to have gathered in such a way in the past! All people who have done so are now guilty of law violation and will be treated as such under the "3 Strikes" rule.

[Alt+F4]

:
It would be illegal to have gathered in such a way in the past! All people who have done so are now guilty of law violation and will be treated as such under the "3 Strikes" rule.

Wow, and folks thought California prisons were crowded now. Make room for those 18,000 couples plus a few hundred city clerks and justices of the peace.

You too Mayor Newsom!

[rwguinn]

Wow, and folks thought California prisons were crowded now. Make room for those 18,000 couples plus a few hundred city clerks and justices of the peace.

You too Mayor Newsom!
What is that loud "Whooshing" noise I hear?

[Alt+F4]

From earlier today:

Justice Joyce L. Kennard asked Starr whether invalidation of the 18,000 gay marriages performed in the state last year when the practice was legal wouldn't violate contract laws and due process as guaranteed by the federal Constitution.

"I don't believe Proposition 8 invalidates those marriages," Starr said. "What it does do is deny recognition."

Could someone please explain to me what the difference is between "invalidate" and "deny recognition"?

[rwguinn]

From earlier today:



Could someone please explain to me what the difference is between "invalidate" and "deny recognition"?
I think even Occam's Razor is too dull to split that fine a hair.
For all practical purposes, I can't see any difference.

[Shalamar]

From earlier today:



Could someone please explain to me what the difference is between "invalidate" and "deny recognition"?

In my mind it would be:

"Yeah, those 18000 gay folks are married. We just don't care and will treat them as if they were not."

[toddjh]

Well, I can see both sides of that argument, actually.

I mean, suppose you signed a contract. A lease, maybe: you rent an apartment, and the lease specifies that you pay $800/month and have sex with the landlord on demand.

The next month, a court rules that contracts involving sex for rent are illegal (apparently your state is a little behind the times).

Your lease would still exist, it would still be valid, but the part about having sex with the landlord would be unenforceable. It would not be recognized. I think that's what he's trying to say here. The state wouldn't deny that they entered into marriage contracts with these people, it would just be saying that those contracts are not enforceable.

It's a pretty meaningless distinction realistically, but I don't think it makes zero sense in theory.

[uruk]

The question is not if something is discrimination but is it legal discrimination or illegal discrimination. There is good discrimination (refusing drivers liciences to the blind) and bad discrimination (refusing a marriage licience to an inter racial couple). So the fact that it is discrimination is not the issue, the issue is is the discrimination legal discrimination or not.

I am not convinced that the current court would rule that it was improper discrimination.

In 50 years will this be a huge embarassment like those fighting interracial marriage 50 years ago? Sure, but not yet. I think that it would be obvious that it falls under illegal discrimination. There is no ligitimate reason that it should even be considered legal discrimination. Nobody is placed in danger by gay marriage. Givin gay marriage legal recognition does not take anything away from anybody. The real reason that people vote against it is that it offends thier sensibilities. Usually religious sensibilities.


This would violate freedom of assembely, something that is a recognized right and thus illegal discrimination. I understand that marriage is not a right under the constitution. It is a privilege, But it is one enjoyed by any consenting adult citizen, well, except if your gay of course. I know that they can still legaly have a heterosexual marriage though. They just can't marry the gender of thier choice.

How about if I change my statement to Star Trek fans can't get married? Just replace "Homosexual" with any group in the wording of prop 8.

Sure but it will take time for all those people do die off and get out of the courts and politics. They didn't wait for those opposed to African-American rights to die off or leave politics.

In times of illegal discrimination the Fed has to get involed on some level. I am not fond of that idea but sometimes you have to take the bitter pill to cure the illness.

[toddjh]

I think that it would be obvious that it falls under illegal discrimination. There is no ligitimate reason that it should even be considered legal discrimination.

It was considered illegal discrimination, in in re Marriage Cases. That's what forced the California government to start issuing same-sex marriage licenses.

Now, California has a constitutional amendment saying, "No, that's not illegal discrimination." Sadly, that invalidates all other objections at the state level. It turned the illegal discrimination into legal discrimination, by fiat.

The question now is, was that amendment approved in the correct way, and can it be reconciled with the other things the California constitution says? That's what the current case is about.

I understand that marriage is not a right under the constitution.

Actually, both the California Supreme Court and the SCOTUS have ruled that marriage is a fundamental right.

In times of illegal discrimination the Fed has to get involed on some level.

That will be the next step, if Prop 8 is upheld. Don't bet too heavily on them doing the right thing, though.

[uruk]

It was considered illegal discrimination, in in re Marriage Cases. That's what forced the California government to start issuing same-sex marriage licenses.

Now, California has a constitutional amendment saying, "No, that's not illegal discrimination." Sadly, that invalidates all other objections at the state level. It turned the illegal discrimination into legal discrimination, by fiat.

The question now is, was that amendment approved in the correct way, and can it be reconciled with the other things the California constitution says? That's what the current case is about. My bad.



Actually, both the California Supreme Court and the SCOTUS have ruled that marriage is a fundamental right. To which they are debating the removal of that right to a group of human beings. Which makes the whole thing even more of an illegal exercise as far as the supreme courts are concerned. My original statement still stands as to why this should even be a question at all. The Fed needs to step in and stop all this silliness.



That will be the next step, if Prop 8 is upheld. Don't bet too heavily on them doing the right thing, though. Well they have done so in the past. We can only hope that religion is checked at the door and the issue is made one of rights and not religious doctrine which has no business in the supreme court or the senate floor.

[toddjh]

To which they are debating the removal of that right to a group of human beings. Which makes the whole thing even more of an illegal exercise as far as the supreme courts are concerned.

No, not necessarily. You're allowed to remove a right from a group of human beings if the court finds that the reason is valid (for example, not letting 10-year-olds get married).

The problem lies in the rules for how you show that a reason is valid. For certain types of minority groups (based on race, religion, nationality, and so on), the standards are very very high. For others (age, for example), the standards are much lower. Gender is somewhere in between.

In California, homosexuals are in the "very very high" category. But in the federal courts, homosexuals are (for now) in the "much lower" category. Until that's changed, don't expect the federal courts to be much help.

[The Nimble Pianist]

No, not necessarily. You're allowed to remove a right from a group of human beings if the court finds that the reason is valid (for example, not letting 10-year-olds get married).

Which seems to be what Justices George and Kennard argued
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/05/BALP169S2G.DTL

They likened prop 8 to the constitutional amendments in California (passed by referendum) which made the death penalty legal after the courts had ruled that it was unconstitutional and the one that made affirmative action illegal. Both amendments still stand.

I'm having trouble understanding the parallel though. An amendment allowing the death penalty could be argued to violate one's right to life, however the amendment doesn't actually target a suspect class. It affects all people who are convicted of capital offenses.

In regards to affirmative action, there is no right to it! Marriage on the other hand has been ruled a right by this same court!

Not a very consistent argument.

[ponderingturtle]

I think that it would be obvious that it falls under illegal discrimination. There is no ligitimate reason that it should even be considered legal discrimination. Nobody is placed in danger by gay marriage. Givin gay marriage legal recognition does not take anything away from anybody. The real reason that people vote against it is that it offends thier sensibilities. Usually religious sensibilities.

And blacks are people and not property but the court has ruled differently.

For example it found separate but equal to be fine and then said it was wrong.


They didn't wait for those opposed to African-American rights to die off or leave politics.

Not all of them, but they waited until there was enough change to get past, as earlier attempts failed. The question is losing a current court case harmful or not.

[The Nimble Pianist]

The question is losing a current court case harmful or not.

One might argue that it is harmful in this specific case, but debilitating? I don't think so. The same process that was used to make same-sex marriages unconstitutional can also be used (as early as next year) to re-extend the "right" to them.

I'm more concerned with the precedence set if the court were to uphold proposition 8. Having one's right to marriage taken away (assuming even momentarily), as I stated, isn't debilitating and is likely only harmful to a minimal extent, but what about other fundamental rights? Will this open the door to referenda abuse? Which rights are important enough for the court to put its foot down in the midst of the electorate whimsically voting away the rights of a state recognized suspect class?

[ponderingturtle]

One might argue that it is harmful in this specific case, but debilitating? I don't think so. The same process that was used to make same-sex marriages unconstitutional can also be used (as early as next year) to re-extend the "right" to them.

I am talking about a gay marriage case before the supreme court.

I'm more concerned with the precedence set if the court were to uphold proposition 8. Having one's right to marriage taken away (assuming even momentarily), as I stated, isn't debilitating and is likely only harmful to a minimal extent, but what about other fundamental rights? Will this open the door to referenda abuse? Which rights are important enough for the court to put its foot down in the midst of the electorate whimsically voting away the rights of a state recognized suspect class?

This seems like a slippery slope fallacy.

[The Nimble Pianist]

This seems like a slippery slope fallacy.

It's not when it concerns the court; precedence always plays a role. I'm watching the oral arguments now on the Internet and waiting to hear how the (apparently) dissenting justices and the "Protect Marriage" attorneys attempt to distinguish prop 8 from the "slippery slope" I offered. If they make no distinction (especially the justices), then the slippery slope isn't fallacious as there would be no standard offered to restrict prop 8's precedence.

[The Nimble Pianist]

For whoever is interested, you can watch the oral arguments today (all 3 hours of them) here on the California Channel:

http://www.calchannel.com/images/sc_030509.html

The first 17 minutes or so is an introduction to the CA judiciary itself. The actual arguments from today begin after that.

[Travis]

Apparently my little brother was in the protest group down in San Francisco today. He just called me up to tell me about it. He says he has some pics of himself holding a huge "overturn prop 8" sign he is going to send me.

Of course protests are pretty much pointless but he said he had fun so all the power to him.

[bpesta22]

I'm confused; can anyone help here.

If a constitution is amended, how can the court change that? Isn't it's job to interpret the constitution, but it has no power to change a constitution?

Is this a california thing or would this apply federally too?

If a federal amendment were passed banning gay marriage, could scotus overturn it?

I thought only congress or people voting could do that.

Also, related, suppose the country decided free speech wasn't a good idea anymore, and so we voted in an amendment to the constitution to repeal the relevant part of the first amendment.

Would the court have any power to strike that? Can the bill of rights be repealed by popular vote?

[The Nimble Pianist]

Is this a california thing or would this apply federally too?

Yes, this is a California thing. We distinguish between two types of altering the constitution: the amendment, and the revision. The former requires only a number of signatures to be placed on the ballot and a simple majority from the electors for ratification. The latter requires the same as well as ratification by 2/3 of the legislature. Many states don't have a referendum process with respect to amending their constitutions and so make no such distinction between an amendment and a revision.

There is no cut and dry, explicit test to determine what kind of alteration makes for a revision, but in all the cases where the state supreme court has ruled that an amendment was actually an illegal revision, it had done so because the alleged amendment fundamentally altered the nature of the government (e.g. violation of the separation of powers doctrine, diminishing of judicial review, etc). Today the court is confronted with a very novel case. The plaintiffs are arguing that an amendment that selectively singles out a suspect class of people (in this case gays and lesbians) for undue discrimination also constitutes a revision. From what I'm seeing of the broadcast of today's oral arguments, it doesn't seem the court is buying this novel interpretation.

This whole 'revision vs. amendment' argument doesn't affect the federal government because the fed doesn't have revisions, only amendments. Also, the US constitution cannot be amended by simple majority of the people, it takes the calling of a constitutional convention by 2/3 of the legislature.

It's very difficult to amend the US constitution, but very easy to amend the California constitution. Our federal constitution has only been amended some 27 times. California's (though much younger) has already been amended more than 500 times.

If a federal amendment were passed banning gay marriage, could scotus overturn it?

No.

I thought only congress or people voting could do that.

Yes and no. The people have no direct power in amending the federal constitution. The only indirect power the people have in amending the federal constitution is through the election of representatives and senators.

Also, related, suppose the country decided free speech wasn't a good idea anymore, and so we voted in an amendment to the constitution to repeal the relevant part of the first amendment.

Funny you should mention this. It's a concern brought up by a few of the court justices in today's oral arguments.

Such a hypothetical situation likely would never happen at the federal level precisely because the common idiot has no direct power in amending the constitution. Also, even among the "enlightened", a super majority is still required.

[bpesta22]

Thanks xixxv!

[JoeTheJuggler]

"You would have us choose between these two rights: the inalienable right to marry and the right of the people to change their constitution," said Justice Joyce L. Kennard, one of those two key judges. "You ask us to willy-nilly disregard the right of the people to change the constitution of the state of California."

Linky (http://www.time.com/time/nation/article/0,8599,1883508,00.html).

Seems to me that the choice is pretty obvious and not at all "willy-nilly"--unless the Judge has a very different idea of what "inalienable" means.

[toddjh]

Linky (http://www.time.com/time/nation/article/0,8599,1883508,00.html).

Seems to me that the choice is pretty obvious and not at all "willy-nilly"--unless the Judge has a very different idea of what "inalienable" means.

And I would say yes, I want them to disregard "the right of the people to change their constitution." I don't believe any such right exists. We live in a republic, not a democracy. The people must be protected from the majority.

Well, not in those words. But the existence of two different procedures to modify the California constitution implies that different standards should exist for each -- which, in turn, implies that some types of change were never intended to be allowed by a simple referendum. I can imagine no change more profound than stripping a protected minority of their fundamental rights. If anything should require the stricter procedure, that would qualify. It absolutely baffles me that they seem to be taking the amendment process seriously.

[The Nimble Pianist]

I just finished the three hour broadcast of the oral arguments.

Linky (http://www.time.com/time/nation/article/0,8599,1883508,00.html).

Seems to me that the choice is pretty obvious and not at all "willy-nilly"--unless the Judge has a very different idea of what "inalienable" means.

After Justice Kannard (the justice to whom that quote is attributed) and Chris Kruger (on behalf of Attorney General Jerry Brown) butchered the pronunciation of the word 'inalienable' a number of times, the question of what exactly 'inalienable' means arose and only Mr. Starr offered one. He stated that in the context of the state constitution, it means "irrevocable except when done so by the proper protocol", or something along those lines. Essentially his entire argument was that the state's constitution is set up in such a way that the electorate may, no matter how unreasonable and irresponsible, revoke any right of anyone as so long as they legally obtained the proper number of signatures to produce the referendum and won the simple majority necessary.

And I would say yes, I want them to disregard "the right of the people to change their constitution." I don't believe any such right exists. We live in a republic, not a democracy. The people must be protected from the majority.

To an extent I agree, but we must remember that this entire case was brought before the state supreme court and was argued that the proposition improperly revised the state constitution and/or violated article 1 section 1 of the state constitution. This same state constitution also affords the people of California with the inalienable right of amending the constitution via referendum. Since the case in no way appeals to federal articles, arguing that we live in a republic is rather irrelevant.

Well, not in those words. But the existence of two different procedures to modify the California constitution implies that different standards should exist for each -- which, in turn, implies that some types of change were never intended to be allowed by a simple referendum. I can imagine no change more profound than stripping a protected minority of their fundamental rights. If anything should require the stricter procedure, that would qualify. It absolutely baffles me that they seem to be taking the amendment process seriously.

And this is almost exactly what Mr. Morocco of the plaintiffs argued, the only problem is that there is absolutely no precedence for striking down a state constitutional amendment on the grounds that the amendment violates the former constitution. I believe he and the other plaintiffs did a decent job of arguing for the understandable nature of their novel interpretation, but it's quite obvious that many of the justices just aren't ready to take such an extrapolation. Though the jurisprudence of the court doesn't necessarily rule out the liquidation of a "fundamental right" as indication of a revision, it also doesn't imply it.

I tend to agree with the attorney general that the stripping of rights does not reflect a constitutional revision, and I agree that a revision is more properly an overhaul or face lift (if you will) of the government itself. I also agree that one can argue the need for the court to invalidate Article 1 Section 7 (though a valid amendment) based on its result of rendering equal protection practically useless (see my earlier post that was dubbed a "slippery slope fallacy" by ponderingturtle. By the way, it's not fallacious. When asked a hypothetical question about other fundamental rights being revoked by similar measure, Mr. Starr basically said that it is his view that such is and should be legal in California).

More to the point, I think this entire fiasco should cause every one of us Californians to rethink (just as some of the justices implied) our use of the referendum for constitutional matters. Seriously, a state that is less than 200 years old that has over 500 constitutional amendments!?

[toddjh]

This same state constitution also affords the people of California with the inalienable right of amending the constitution via referendum. Since the case in no way appeals to federal articles, arguing that we live in a republic is rather irrelevant.

Well, I was intending the republic/democracy dichotomy to provide justification for the novel interpretation I was hoping they'd make: that stripping protected minorities of fundamental rights is too critical an issue to leave to the masses and would necessarily qualify as a revision on that basis. Yes, the guarantee of a republican form of government does reside in the U.S. Constitution, but that doesn't mean that the justices can't consider the reasoning behind it in isolation.

[Travis]

Proposition 8A: Redefining marriage as being between one man, not named Robert, and one woman, not named Alice. We'll call it the "Bob's can't marry Alice's" amendment and get the requisite number of signatures.

In 2010 we'll get an "amputees can't marry non-amputees" amendment proposal on the ballot......and so forth until people realize how stupid it is to put these arbitrary limitations on marriage.

[The Nimble Pianist]

Proposition 8A: Redefining marriage as being between one man, not named Robert, and one woman, not named Alice. We'll call it the "Bob's can't marry Alice's" amendment and get the requisite number of signatures.

In 2010 we'll get an "amputees can't marry non-amputees" amendment proposal on the ballot......and so forth until people realize how stupid it is to put these arbitrary limitations on marriage.

As a Californian, I assume you already know how the logic of many folks here (namely in the valley) runs amok when confronted with inconsistency. I imagine a bunch of talk about functioning penises and vaginas will come in.

"You see, Alice has a vagina, and Robert has a penis (as do the pairs of amputee's presumably) and so there is no violation of "natural law"/"the way God meant it to be"/"common sense" (fill in the blank with preferred silly, personal standard)"

I wonder how they'd apply their standard to a proposition prohibiting eunuch marriage.

I'm a little confused by many of the justices arguments during the hearings too. I understand their concerns about the limitation of their power in overturning an amendment to the constitution when their sole job is interpreting legal statues in light of the constitution. We're definitely in completely uncharted territory here.

What I don't understand is how certain justices were also trying to diminish the need for the nomenclature "marriage" when that is exactly what the May 2008 "In regarding marriages" case that overturned proposition 22 was all about! Mind you the main justice who comes to mind is Justice Kannard who was in the majority during the May 2008 case! How can she in May agree that CA civil unions violate equal protection and that having the term "marriage" equally applied to all registered couples is part of the fundamental right to marriage, but now claim that "all the substantive rights of marriage are found in civil unions, and the nomenclature is not important"? Again, I understand the possibility that overturning prop 8 might be out of their domain, but if that's the position you take Justice Kannard, then stick to it without tossing inconsistent arguments into the mix. Could you imagine what this would sound like with any other "right" and any other "suspect class"?

Imagine, in May of 2008, the plaintiffs argue in "In regarding water fountains" that though Black people get the same water from similar structures that are readily available to them, having them separated from the rest of the population, thus enshrining a state condoned racist judgment about them, is unconstitutional and violates the equal protection they deserve as human beings with dignity. Justice Kannard agrees with them and overturns whatever statute was in place prohibiting Blacks from using White people's water fountains.

Then, in March of 2009 (after the people of California amend the constitution to say "Only water fountains that are racially segregated will be recognized or valid in California") that same Justice Kannard asks the rhetorical questions "Are you really trying to obtain equal rights or are you trying to overhaul California's referendum process? Black people have all the same substantive rights of water drinking in their own water fountains. Does the exact porcelain and stainless steel in the specific fountain really matter?"

To say the least, I was very disappointed with Justice Kannard's logic that day (I'm hoping she was just having an off day). I was more disappointed, if not appalled, by Ken Starr's belief that Californian's are, and should be, endowed with a blank check on civil rights, that the US Supreme Court is sufficient to keep the electorate "in check".

I was delighted, and even chuckled, with Mr. Morocco's "hypothetical amendment" posed to the justices. "What if our passed Prop 8A amendment in 2010 stated 'the office of Supreme Court Justice in California is only recognized and validly obtained by men. Women can be 'court counselors', with the same 'substantive rights', but they have no right to the term 'justice'?" In the process of posing this hypothetical situation, Mr. Morocco accidentally used the term 'judge' rather than 'justice' for which he was quickly interrupted and corrected by none other than Justice Kannard (proving in a very ironic sense Mr. Morocco's point)! Needless to say, none of the justices answered his question.

[Alt+F4]

If I were a smart white supremist leader I would convince every single one of my followers to move to California. Then I'd make nice-nice with similar organizations, get all them to move ou there and hire a slick ad agency. All-white California is a really possibility.

[ponderingturtle]

If I were a smart white supremist leader I would convince every single one of my followers to move to California. Then I'd make nice-nice with similar organizations, get all them to move ou there and hire a slick ad agency. All-white California is a really possibility.

not really. It would be killed by federal courts.

[Bob Blaylock]

Marriage is a union between a man and a woman. That's what it has always been, and that's what it will always be. It was established as such by a higher power than any mortal court or legislative body, and no mortal court can change it.

For a law to be passed, or for a court to rule, that any other union can be called a marriage, would be nonsense, exactly as it would be nonsense for a court ruling or a law to try to force two plus two to equal six.

[Lonewulf]

Marriage is a union between a man and a woman. That's what it has always been, and that's what it will always be.

What it has always been? Is this a lie, or just based in ignorance?

[ZirconBlue]

Marriage is a union between a man and a woman. That's what it has always been, and that's what it will always be. It was established as such by a higher power than any mortal court or legislative body, and no mortal court can change it.

For a law to be passed, or for a court to rule, that any other union can be called a marriage, would be nonsense, exactly as it would be nonsense for a court ruling or a law to try to force two plus two to equal six.

A person would have to try really, really hard to be more wrong than this.

[The Nimble Pianist]

Marriage is a union between a man and a woman.

So says Article 1 Section 7 of the CA constitution.

That's what it has always been, and that's what it will always be.

This coming from a Mormon! :rolleyes:

It was established as such by a higher power than any mortal court or legislative body, and no mortal court can change it.

You mean, just as this 'higher power' "created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." (http://en.wikipedia.org/wiki/Loving_v._Virginia#Facts) ?

For a law to be passed, or for a court to rule, that any other union can be called a marriage, would be nonsense, exactly as it would be nonsense for a court ruling or a law to try to force two plus two to equal six.

You're on a roll! (http://en.wikipedia.org/wiki/False_analogy)

[Shalamar]

Marriage is a union between a man and a woman or is a union between one man and many women.That's what it has always been, and that's what it will always be. It was established as such by a higher power than any mortal court or legislative body, and no mortal court can change it.except when it becomes inconvienient, and we need to change it so we can become a US state.

For a law to be passed, or for a court to rule, that any other union can be called a marriage, would be nonsense, exactly as it would be nonsense for a court ruling or a law to try to force two plus two to equal six. Only within the western judeo-christian culture. All other cultures are to be ignored as they are pagan heathens anyways, and our faith says we must subjugate women, and others who we deem are inferior.

[Redtail]

Marriage is a union between a man and a woman. That's what it has always been, and that's what it will always be. It was established as such by a higher power than any mortal court or legislative body, and no mortal court can change it.

For a law to be passed, or for a court to rule, that any other union can be called a marriage, would be nonsense, exactly as it would be nonsense for a court ruling or a law to try to force two plus two to equal six.

All Christians believe that the affairs of the world are directed by Providence for wise and good purposes. The coming of the negro to North America makes no exception to the rule. His transportation was a rude mode of emigration; the only practicable one in his case; not attended with ore wretchedness than the emigrant ship often exhibits even now, notwithstanding the passenger law. What the purpose of his coming is, we may not presume to judge. But we can see much good already resulting from it--good to the negro, in his improved condition; to the country whose rich fields he has cleared of the forest and made productive in climates unfit for the labour of the white man; to the Continent of Africa in furnishing, as it may ultimately, the only means for civilizing its people.

Richard H. Colfax ;)

[KingMerv00]

Marriage is a union between a man and a woman.

I do believe polygamy was quite popular in the old days.

[Upchurch]

What amazes me, after all this, is that the people actively taking the right to marry away from gay people claim that it is, in fact, their rights that are being infringed on. As if gay marriage somehow prevented them from being able to worship the way they please or will force their church to do something they don't approve of. It is the height of stupidity.

[The Nimble Pianist]

What amazes me, after all this, is that the people actively taking the right to marry away from gay people claim that it is, in fact, their rights that are being infringed on. As if gay marriage somehow prevented them from being able to worship the way they please or will force their church to do something they don't approve of. It is the height of stupidity.

I see you're not acquainted with the "Christian Persecution Complex".

It's even more prevalent in Mormons since they did relatively recently experience actual persecution in the US. Still, it gets old. I attended a Mormon church service a few weeks ago, and the speaker had the audacity to say that the church is taking so much heat over prop 8 simply because "Satan hates Jesus' Church, and would do anything and employ anyone to stop it. Get ready, Hans Mill could very easily repeat". I had never been more disgusted at a Sacrament meeting before in my life. Tis a shame I didn't have the tar and feathers to give the woman the reenactment she expected (and likely desired).

[Travis]

What amazes me, after all this, is that the people actively taking the right to marry away from gay people claim that it is, in fact, their rights that are being infringed on. As if gay marriage somehow prevented them from being able to worship the way they please or will force their church to do something they don't approve of. It is the height of stupidity.

You see, it's making their own marriages worthless....somehow....in a way that they never explain.

[The Nimble Pianist]

You see, it's making their own marriages worthless....somehow....in a way that they never explain.

Actually, come to think of it, I think the "It'll rub off on our children" motif has been resurfacing and is the preferred argument.


This from the Utah based "America Forever" non-profit organization, that is urging Utahans to stop using the term "gay" and "lesbian" and use "anti-species" instead.


http://www.americaforever.com/images/hole_save_innocenc.gif

[Redtail]

Actually, come to think of it, I think the "It'll rub off on our children" motif has been resurfacing and is the preferred argument.


This from the Utah based "America Forever" non-profit organization, that is urging Utahans to stop using the term "gay" and "lesbian" and use "anti-species" instead.


http://www.americaforever.com/images/hole_save_innocenc.gif

:eye-poppi I... I never thought I see something stupider than the "Taste the rainbow campaign (by skittles) is trying to turn kids gay!" argument...

[KoihimeNakamura]

It's not just mormons. My landlord thinks Christians are being prosecuted as well.

[Freddy]

I do believe polygamy was quite popular in the old days.

Yeah, but each of the man's marriages was between him and one woman. :)

[ponderingturtle]

You see, it's making their own marriages worthless....somehow....in a way that they never explain.

Because marriage is the only thing keeping them straight and if they could have homosexual marriage they would go for it in a heartbeat. And they know that would damn them to hell. So really you can't let gays marry with out damning good Christians to hell.

[The Nimble Pianist]

Yeah, but each of the man's marriages was between him and one woman. :)

Actually, not in all them, especially the polygamy we're used to here in the US.

I'm the descendant of polygamous ancestors. Each member of the marriage was married to all other members. Essentially, there was a collective marriage between the man and his wives and the wives between each other.

I've tried pointing out to my family members that this is obviously a form of same-sex marriage (simply without the sex). They cite the lack of sex as evidence that they cannot in any way be seen as a same-sex marriage, which of course backs them into the non-sequitur of "marriage is indicated by the presence of sex". I guess that's news to all the sex-less married couples out there.

[balrog666]

Soylent Green is people!

And it tastes good too!

Can I get that in the California Constitution?

[Alt+F4]

Soylent Green is people!

And it tastes good too!

Can I get that in the California Constitution?

Yes, you can!

[Safe-Keeper]

Actually, come to think of it, I think the "It'll rub off on our children" motif has been resurfacing and is the preferred argument.It also doesn't answer the very basic question why homosexuality is wrong. Unless someone can answer this, it's immaterial whether it "rubs off on" your kids, potted plants, car or cute chick next door.

Oh, and that "gays in the hole" picture is disgusting.

[pipelineaudio]

This is scary stuff! The final nails in the coffin of the Arizona music scene were similar mob rule referendums

I thought one of the major premises of the constitution was to protect the minority from the majority passing laws against them.

These legislators need to start doing their jobs and denying or passing bills on their own, not letting the mindless barbarians knee jerk their whims

[pipelineaudio]

It also doesn't answer the very basic question why homosexuality is wrong.

Rampant homosexuality means more chicks for me, and more money for the arts....

Best of all, gays in the military will be as insulting to fundamentalist enemies as having to face women in the field

sorry, I am having massive trouble seeing any problem with this.

Oh, and that "gays in the hole" picture is disgusting.

It's called "rope". Let them hang themselves with those pictures

[GreNME]

Marriage is a union between a man and a woman. That's what it has always been, and that's what it will always be.

I know this for a fact to be false, but I also know that regardless of the evidences presented to the contrary that those who argue this nonsense are perfectly willing to add modifiers so that they can continually move their goalposts and remain unchanged in their positions.

Which, ultimately, seems to be par for the course in American politics.

[Holler Hoojer]

It's worth noting that homosexuality is observed in many animal species, among those being the Grizzly. Might I suggest that those who oppose gay marriage prove their worthiness to comment by first making the darn Grizzlies stop it!

[pgwenthold]

I see you're not acquainted with the "Christian Persecution Complex".


Definition of Christian Persecution: Not being allowed to use state authority and resources to impose Christianity on everyone else.

Those poor, oppressed Christians...

[applecorped]

So, how much did the ban weigh?

[Travis]

So, how much did the ban weigh?

20 Kilograms which broke down like this:

10 kilos of bigotry

5 kilos of ignorance

3 kilos of apathy

2 kilos of unfounded fear

[Freddy]

Actually, not in all them, especially the polygamy we're used to here in the US.

I'm the descendant of polygamous ancestors. Each member of the marriage was married to all other members. Essentially, there was a collective marriage between the man and his wives and the wives between each other.

I've tried pointing out to my family members that this is obviously a form of same-sex marriage (simply without the sex). They cite the lack of sex as evidence that they cannot in any way be seen as a same-sex marriage, which of course backs them into the non-sequitur of "marriage is indicated by the presence of sex". I guess that's news to all the sex-less married couples out there.

Thanks for the info.