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By Matt Coles, Director, ACLU Lesbian, Gay, Bisexual, Transgender Project, & Chris Hampton, Public Education Associate, ACLU Lesbian, Gay, Bisexual, Transgender Project

On November 19, the California Supreme Court agreed to hear a lawsuit that we at the ACLU, the National Center for Lesbian Rights, Lambda Legal, and Equality California filed the day after the election, asking the Court to strike Proposition 8 down. Here’s what our case is about.

The California Constitution can be altered in two ways. The way most people know about is to simply amend the Constitution. Amendments are meant for less serious constitutional changes and are voted into effect by a simple majority of the voters. Proposition 8 was done as if it were an amendment. The other way to change the California Constitution is through what’s known as a revision, which is what the law requires for major, fundamental changes. Revisions have to be approved by two-thirds of each house of the legislature before the question is put to the voters.

In our case, we’re arguing that Proposition 8 is invalid because it calls for such an immense change in the California Constitution that it must be handled as a revision, rather than through an amendment.

Why is Proposition 8 a major change? Because it jettisons two of the central ideas on which the California Constitution — like the federal constitution — is based. First, the very idea of constitutional government and of the rule of law itself is that everyone is equal before the law, that there is one set of rules for everyone. Equality isn’t just a nice goal in the California Constitution’s Declaration of Rights; it’s a principle that resonates throughout the entire document. The second idea is that the very purpose of a Declaration of Rights (or a Bill of Rights in the federal constitution) is that it lays out rights which can’t be taken away just because a majority of people would like to do that. The guarantee of free exercise of religion means, for example, that unpopular religious groups can’t have their right to worship taken away.

Proposition 8 takes something the California Supreme Court already found to be a fundamental right — the right to marry — away from a historically disadvantaged minority — gay people. To put it bluntly, Proposition 8 put a cherished right of a protected minority up to a popular vote. That, we say, is such a drastic change in what the Constitution allows, a rejection of the very idea of protected rights and equal justice, that it must be treated as a revision of the Constitution, requiring the approval of the legislature before a vote. (You can read more about the case here).

Marriage isn’t the only thing at stake here. If the California Constitution can be amended to take the right to marry away from gay people, then any fundamental right could be snatched away from any group that’s outnumbered at the polling places. As one of the signs seen at the massive protests that have taken place around the country in the wake of Proposition 8 says, "You may not be gay – but you might be next." That’s what we’ll be telling the California Supreme Court when arguments are held next March in our case, Strauss et al v. Horton et al. It’s difficult for me to think of a greater threat to the principles of individual freedom for which the ACLU stands.

To learn more about Prop. 8 and tools for advancing LGBT equality in your community, visit Get Busy, Get Equal!

Originally posted to ACLU on Wed Dec 03, 2008 at 12:45 PM PST.

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    Thanks for reading! To learn more about what you can do for marriage equality, go to

    Because freedom can't protect itself.

    by ACLU on Wed Dec 03, 2008 at 12:47:16 PM PST

    •  Good luck! (41+ / 0-)

      And thank you for you efforts!

      "Rather than being an ancient phenomenon, it appears that homophobia is relatively modern but that traditional values are exploited to justify it."

      by psychodrew on Wed Dec 03, 2008 at 12:48:49 PM PST

      [ Parent ]

    •  While the prospect of "you may be next" is real.. (52+ / 0-)

      The real issue to Americans should be that it IS HAPPENING. Do not be afraid that you may be next, be afraid that it is ongoing.

      People's bigotry can be so embedded that they themselves do not recognize it. The hide behind "tradition" "religion" ""reality"" (double quotes on purpose).

      I have faith in the courts to right this wrong, but the message cannot be silenced. Protests, media, and education will overcome ignorance (the source, in my mind, of bigotry).

      Hope. Peace. Integrity.

      by Random Excess on Wed Dec 03, 2008 at 12:53:20 PM PST

      [ Parent ]

      •  Embedded bigotry (31+ / 0-)

        Very few people recognize their own biases.

        About 20 years ago, I worked with a gentleman named Bob. Bob was a big old southern boy, pretty easy going. He crewed for a pro stock car racer on weekends.

        Bob had gotten called into the EEO office concerning a complaint against another employee, not him.

        At one point the EEO counselor asked him if he was racially prejudiced. Bob said he looked at her and told her,

        "Your damned right I have prejudices. Look, I was raised in Alabama in the 40's, it'd be a miracle if I weren't prejudiced. See, the difference is I know I am prejudiced and I work not to be, its the people who aren't prejudice you gotta watch out for."

        It takes a rare and remarkably insightful person to know that they have prejudices, Bob was pretty cool.

        The flip side is what you said and so true. The most bigoted people I have ever met would stand there and tell you they didn't have nothing against nobody, they were always fair because they had good reasons for not liking certain types of people. Oddly enough they always seem to find more reasons if you debunk the old ones.

        I doubt very seriously that the mormons who backed proposition 8 would see their right to worship freely and another's right to choose their life's partner freely as the same issue but they are the same issue.

        No doubt they have good reasons for not liking that type of person.

        Live to create the world you want to live in.

        by beerm on Wed Dec 03, 2008 at 02:53:42 PM PST

        [ Parent ]

        •  So true. (11+ / 0-)

          That's why bigotry must be fought generation by generation, so that we lose our parents prejudices, and quit passing them on.

          Joe Lieberman is a Chode.

          by dnamj on Wed Dec 03, 2008 at 02:58:42 PM PST

          [ Parent ]

          •  It is a war of attrition (3+ / 0-)
            Recommended by:
            PBen, grada3784, dakinishir

            People grow up with the prejudices of their parents and learn by exposure those prejudices are wrong. I grew up in a small southern-ish town. My father was one of the worst bigots I've ever known. If you weren't straight, white, and protestant, you were on his enemies list. He worked in a federal prison and proudly wore a Klan belt buckle. He said it was a joke just to make the inmates squirm, but I knew better.

            Fortunately for me, I went to school in the era post Brown vs. Board of Ed. My school was integrated and I got to know people who weren't like me. I had blacks and Catholics in my small circle of friends growing up, which really torqued my dad. He used to comment to me, "I don't know why you keep hangin' around with those n----s. They're nothing but trouble and you'll end up in the joint on the wrong side of those bars."

            I knew what he said wasn't true and kids today are just as smart as I was back then. They are more likely to have an even more diverse circle of friends that include multiple ethnicities and even one or more openly gay and/or lesbian people. They know their parents' prejudices are built on misconceptions and stereotypes and as the older generations die their prejudices die with them. That isn't to say some won't be successful in handing their prejudices down to their children through (mostly religious) indoctrination, but they are an ever shrinking minority.

            So many impeachable offenses, so little time... -6.0 -5.33

            by Cali Techie on Thu Dec 04, 2008 at 12:00:53 AM PST

            [ Parent ]

        •  that's straight on (5+ / 0-)

          you have to watch for it constantly.

          I can still remember interviewing candidates for dorm mother in college in 1976. One of our committee's questions was just that; "Are you a racist?"

          Anyone who unhesitantly answered "no" was out of the running.

          "I am infused with the day, even tho the day may destroy me." - John Wiener

          by mieprowan on Wed Dec 03, 2008 at 04:54:55 PM PST

          [ Parent ]

          •  Why? There's a Difference Between Racism (3+ / 0-)
            Recommended by:
            grada3784, irishwitch, mieprowan

            and prejudice, bias, unfamiliarity etc.

            Lots of people are not rac ist who have all kinds of prejudices.

            Am I racist? Of course not. Do I have bias and prejudices that might be a threat to others? Of course I do.

            We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

            by Gooserock on Wed Dec 03, 2008 at 07:18:49 PM PST

            [ Parent ]

            •  the correct answer (2+ / 0-)
              Recommended by:
              grada3784, AntKat

              was more along the lines of "I try very hard not to be, but we all have biases and prejudices that might be a threat to others."

              Most racism that people experience is not anything they would label as racism. The people who say America isn't ready for a black president say they don't think that's racist.

              Being overtly racist is different. But even when people do that, lots of times they try to pass it off as a joke.

              To get a little more on topic, I can't tell you how many times I've heard people say unpleasant things about homosexuals, make bad jokes, call people names, and then insist they aren't homophobic, that one shouldn't take them seriously; "it's just a joke." Bigotry is sneaky.

              "I am infused with the day, even tho the day may destroy me." - John Wiener

              by mieprowan on Wed Dec 03, 2008 at 08:06:07 PM PST

              [ Parent ]

            •  if I'm not making myself clear enough (1+ / 0-)
              Recommended by:

              my point was just that if someone only answers "no, I'm not a racist," that doesn't tell you anything about whether they have any sense about how to even recognize it in themselves. Also, if they get all defensive about it, that tells you something too. If they say "no, I'm not a racist," and then give you some examples of how they are not a racist, that clearly indicate that they are a racist, that's useful information.

              "I am infused with the day, even tho the day may destroy me." - John Wiener

              by mieprowan on Wed Dec 03, 2008 at 08:30:09 PM PST

              [ Parent ]

      •  Prop 8 weakened my marriage (10+ / 0-)

        By writing Jim Crow into our state constitution, my "priviledged" marriage of 23 is actually weaker.

        "Injustice anywhere is a threat to justice everywhere." MLK

        by Mo on Wed Dec 03, 2008 at 04:08:54 PM PST

        [ Parent ]

      •  I'm seriously considering starting an (8+ / 0-)

        initiative drive to make it illegal for registered Republicans to marry in WA.

        Love, baby, that's where it's at. --The B52's

        by Mind That on Wed Dec 03, 2008 at 07:04:19 PM PST

        [ Parent ]

      •  Not to quibble, but I think this is more than (11+ / 0-)

        embedded bigotry.

        I think this is symptomatic of our willingness to create groups of people who stand outside the protection of the constitution.

        Just look at the groups singled out for rights-stripping in the past decade: those who are accused (not convicted, accused!) of terrorist links; political activists; community organizers; people who make less than $20,000 a year; people who had sex with their sweethearts in high school; Latinos. It goes on and on and on.

        Since the emergence of Limbaugh and his ilk in the 1980's, we've seemed to willingly accept that there is always some 'other' that is threatening 'real American' and needs to be slapped down, put away and shut up.

        Ah, the roots of fascism, and we can't even call it what it is anymore.

        •  That is so true. Have a 4. (6+ / 0-)

          Rush Limbaugh cannot exist if he doesn't have an "other" group to spit on.  That is his entire schtick, he doesn't have anything else.  I have been appalled by the popularity of Limbaugh and people like him.  He stirs up the very worst instincts in people.  He actually invites people to hate and sneer.  He makes it okay! Don't fight against your prejudices, don't let reason and understanding hold sway over your thoughts!  Hate, hate away!  Revel in your racism and bigotry! It is disgusting.  It is poisonous.

          You're right. If it isn't gays, it will be some other identifiable group, like latino immigrants, or middle-eastern muslims.  

          "YOPP!" --Horton Hears a Who

          by Reepicheep on Wed Dec 03, 2008 at 08:03:04 PM PST

          [ Parent ]

    •  Prop 8 is the removal of equal protection (42+ / 0-)

      under both the State and Federal Constitutions for all people.  I can hardly see how that is anything but not only a major revision, but completely  in contravention of the documents themselves.  The removal of any umpopular group's rights can be next under this "ammendment" approach.

      •  The whole point of an amendment (any amendment) (4+ / 0-)

        is to be in contravention to the document.

        •  Not so (38+ / 0-)

          An amendment can serve any number of purposes. The most important are that it can address situations for which no clear guidance exists in the underlying document or it can add detail to provisions of the underlying document.
          An amendment which seeks to overturn a portion of the underlying document would have to so state. Prop 8 doesn't do that. It basically adds a sentence which, in fact, contradicts not only the Equal Protection Clause of the state's Constitution but also contradicts the State Supreme Court's recent interpretation of that clause. And it does do so by saying in effect "the Equal Protection Clause shall not apply to a certain class of citizens."

          You must understand that the California Constitution's Equal Protection Clause is far more expansive that the corresponding portion of the US Constitution. For Prop 8 to be viable it would have to overturn or reinterpret the meaning of the Equal Protection Clause. That to me is the very definition of a revision.

          •  The fact that one sentence contradicts (1+ / 0-)
            Recommended by:

            the other is inconsequential.  The 14th Amendment contradicts a whole bunch of sentences in the Federal Constitution.  So?

            Second, the summary of the amendment did state that it will take away extant rights.

            •  That's exactly the issue. (5+ / 0-)

              California law has no concrete definition of the difference between a "regular" amendment and a revision.  Pro-banners will argue that it's a narrowly-defined amendment addressing only a single topic; pro-marriagers will argue that recreating the Equal Protection Clause to create a separate class of people (the effect of taking away extant rights from a single group) is much more substantial, and should be considered a revision.  I hate to say it, but at this point it's a purely academic argument that could go either way.

              Saint, n. A dead sinner revised and edited. - Ambrose Bierce

              by pico on Wed Dec 03, 2008 at 01:41:17 PM PST

              [ Parent ]

              •  Never mind - I saw your discussion below. (2+ / 0-)
                Recommended by:
                grada3784, BentLiberal

                As I said, it's a toss up given this particular court, but fortunately the pro-marriage crowd is already planning for a 2010 challenge (which might be more successful).

                Saint, n. A dead sinner revised and edited. - Ambrose Bierce

                by pico on Wed Dec 03, 2008 at 01:47:27 PM PST

                [ Parent ]

            •  The summary was not written by the petitioners (18+ / 0-)

              It was written by the Attorney General's office. The petitioners screamed like hell about the summary because it said something that the petitioners didn't want to admit to.

              I see considerable merit to your observation about the 14th Amendment. However the procedures for altering the state's constitution are far more specific than those for altering the US constitution so I'm not sure the comparison is entirely valid.

              Two specific sections of the CA constitution are pertinent here:

              First, Article 1, Section 3 b 2

              A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly
              construed if it furthers the people's right of access, and narrowly construed if it limits the right of access.  A statute, court rule, or other authority adopted after the effective date of this
              subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

              Second (and most important, at least in this circumstance) Article 1, Section 7 b

              A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.

              It should of course be noted that there is a new Section 7.5, immediately after the above. It wasn't there a couple of weeks ago. Section 7.5 implements Prop 8. There is an evident contradiction between the two adjacent paragraphs. It is now up to the court to resolve this contradiction.

            •  Actually, I'm not aware of any statements... (1+ / 0-)
              Recommended by:

              in the U.S. Constitution that are contradicted by the 14th Amendment.

              Show me that river...

              by luckyoldsun on Wed Dec 03, 2008 at 08:18:28 PM PST

              [ Parent ]

          •  What's crazy to me is that the constitution (19+ / 0-)

            can be changed at all by nothing more than a simple majority vote.

            •  Why? That Constitution was enacted (2+ / 0-)
              Recommended by:
              grada3784, linkage

              by a simply majority and that is the compact they agreed to.  

              •  If you're talking about the California (5+ / 0-)

                constitution - I don't know the history there - but if you are talking about the US Constitution, you're dead wrong.

                •  Of course I am talking about California (2+ / 0-)
                  Recommended by:
                  grada3784, linkage

                  The US Constitution cannot be amended by a simple majority vote.  California's can be.  Those are the compacts people entered into.  So?

                  •  So its not much of a constitution imo (12+ / 0-)

                    if it is that easily changed.

                    As I understand it, they need a super majority of some sort in the state legislature to pass a budget, but a simple majority popular vote can change the constition.  I think that's bassackwards.

                    •  That may be, but that is the Constitution (0+ / 0-)

                      Californians chose for themselves.  Also, I find it amusing that proponents of a "living Constitution" are upset that a Constitution can be so easily changed.  Isn't that the point of a living Constitution doctrine?!

                      •  There is a difference between a living (15+ / 0-)

                        Constituion and a frenetic and unpredictable Constitution.

                        I lived in a third world country where six guys changed the Constitution almost on a monthly basis.  Some people were citizens one month, the next they weren't.  I don't think that is a great way to live.

                      •  For Me, The Issue Is Not About What (20+ / 0-)

                        constitutes a Constitution or what a Constitution "should" or "should not" be.

                        The issue at hand is RIGHTS.  If people have rights, then they have rights, and those rights should not be merely the whims of 50% +1 of the population.  There are simply too many times in the history of humanity in which the rights of a minority were at odds with the interests of a majority.  Still, rights should trump interests.  

                        There is that saying,

                        Democracy is two wolves and a lamb voting on what to have for lunch.

                        Straight democracy is that way, and that was the purpose of creating a Bill of Rights in the first place.  Jefferson claimed that we are endowed by our Creator (however you wish to interpret that) with certain inalienable rights -- that is, NATURAL rights which cannot be signed away, even voluntarily.  Rights which are simply not dependent on whims, beliefs, customs, or even laws.  I would argue that equal treatment for gays falls under this category and should not be contingent on a 50% +1 vote.

                        You can have your "Under God" back when I get my "Liberty and Justice For All" back.

                        by karateexplosions on Wed Dec 03, 2008 at 02:03:55 PM PST

                        [ Parent ]

                        •  Except that those rights (1+ / 0-)
                          Recommended by:

                          came about because 50%+1 of teh population voted for them.  These rights were not granted on Mount Sinai from a burning bush.  They got enacted by the vote of the people.  Seems to me people can change their mind, especially if they reserved the right to do so in the Constitution itself.

                          •  The government cannot "grant" rights (13+ / 0-)

                            All government can do is restrict and infringe upon rights.  That is the philosophy behind the Constitution, which is a charter for limited government.

                          •  That is a rather interesting approach (1+ / 0-)
                            Recommended by:

                            Since what is being asked for here is access to a list of government created rights (tax, inheritance, etc.)  And it is being asked of the institution established by that government, an institution that is obviously also limited in scope.  No one is prohibiting gays from living together or having any sort of ceremonies.  But certainly you are not arguing that a particular tax benefit is an inherent right?!

                            Furthermore, this Constitution was enacted by the people as a whole, and they as a society, I think do get to decide what rights individuals possess vis-a-vis the society.

                          •  Government Created Rights (9+ / 0-)

                            The Federal Constitution's Bill of Rights enumerates certain rights which are directly related to the way that government works -- for example, your right to be tried by a jury of your peers, your right to not be punished in a cruel and unusual way, your right to be secure in your person and effects from unreasonable search and seizure.  The government does not GRANT these rights, it simply recognizes that as a human being, you possess them.  

                            The California Supreme Court found that people in the state of California have a similar right to marriage.

                            The very nature of rights is such that a simple majority of people should not be allowed to take them away.

                            You can have your "Under God" back when I get my "Liberty and Justice For All" back.

                            by karateexplosions on Wed Dec 03, 2008 at 02:50:40 PM PST

                            [ Parent ]

                          •  You are missing the point that (0+ / 0-)

                            these rights were created by the majority.  They didn't just appear out of thin air.

                            And as for cruel and unusual punishments, Californians actually did overrule the California Supreme Court on that one.  Prop 17 in 1972 reinstated the death penalty even though the Court held that people have a right not to be executed.

                          •  You Are Missing the Point (9+ / 0-)

                            That the majority did not "create" any rights.  Rights are not created.  They don't appear out of thin air, either.  

                            All human beings simply HAVE certain rights, by virtue of being human beings.  Governments and majorities can INFRINGE upon those rights, and be at odds with basic human freedom, and we've seen that happen in the past -- internment camps, suspension of habeas corpus, Jim Crow laws, etc.  However, the fact that the government is engaging in such infringement is not a validation that they are correct -- rather, it is an indication that they are violating human liberty.

                            You can have your "Under God" back when I get my "Liberty and Justice For All" back.

                            by karateexplosions on Wed Dec 03, 2008 at 03:02:50 PM PST

                            [ Parent ]

                          •  Human beings do not have a (0+ / 0-)

                            right to be taxed a certain way or to inheritance simply because they are human beings.  In any event, what is being sought here is not permission to call your union marriage, but to have the government recognize it and confer certain rights on it.

                          •  I Disagree With You Completely (10+ / 0-)

                            as to whether the right to marriage is an inalienable right, but I must admit you're doing a fine job of making the ACLU's point, which is that if it's acceptable for the majority to infringe upon the rights of THIS minority, then it's acceptable for the majority to infringe upon the rights of the NEXT minority.  And you never know when YOU might end up in the next minority.

                            You can have your "Under God" back when I get my "Liberty and Justice For All" back.

                            by karateexplosions on Wed Dec 03, 2008 at 03:22:38 PM PST

                            [ Parent ]

                          •  And remember, we are ALL a minority of one. (2+ / 0-)
                            Recommended by:
                            karateexplosions, JesseCW
                          •  What I find really interesting about this is that (2+ / 0-)
                            Recommended by:
                            karateexplosions, Judge Moonbox

                            the anti-8 crowd is arguing a traditional Republican position. If you presume the Constitution to be dead, and the right to marry is deemed fundamental (SCOTUS has already conceded this point), the opponents of 8 win going away.

                          •  You assume that the federal right to marry (0+ / 0-)

                            means right to marry anyone, as opposed to someone unrelated of the opposite sex.

                          •  I don't assume it, but derive it (4+ / 0-)

                            from the "compelling state interest" test.  AFAIK, no state AG has even tried to argue that the State had a compelling interest in prohibiting SSM.

                            Do you have any thoughts on what a qualifying interest might be?

                          •  Again, you assume that there must (0+ / 0-)

                            be a showing of compelling state interest.  Since no court other than California's Supreme held gays to be a suspect class, there was no need to show compelling state interest.  And no federal court ever found sexual orientation to be a suspect classification.

                          •  Aren't you forgetting something here? (5+ / 0-)

                            We're talking about a fundamental right; IIRC, all you really need is the proverbial "class of one."  A law disadvantaging a suspect class doesn't have to affect a fundamental right for the EPC to kick in.

                          •  And round and round we go (0+ / 0-)

                            You assume that the right extends to marriage to ANYONE as opposed to an unrelated person of opposite sex.

                          •  Marriage is a contract between consenting adults (4+ / 0-)

                            Under the common law of England, all you had to do to get married is to hold yourself out as being married; we still have that rule in Colorado.

                            It's not that I assume anything; I just don't see how you get to the legal limitation on marriage.  If the right to enter into the marriage contract is a fundamental right, everything seems to flow downhill from there. IIRC, EP kicks in if government action infringes upon a fundamental right or negatively affects a suspect class.  

                            I don't have a horse in this race, nor do I pass any moral judgment.  The law is what it is, and I don't have much of a say as to the CA proposition here in the Land of Mork and Mindy.

                          •  Under the common law of England (0+ / 0-)

                            homosexuality was a capital offense.  So the common law of England is a poor source to cite in support of gay marriage.  In any event, the Supreme Court has already ruled on the matter in Baker v. Nelson.

                          •  The common law is ever-changing (0+ / 0-)

                            Marriage wasn't open to same-sex couples at common law for that reason, but that doesn't mean that our analysis is over.  Our law has answered the question of consensual sodomy in a manner Coke or Blackstone never dreamed of (England was a de facto theocracy).

                            Now that the disability against homosexual relations has been removed -- much as the prohibition against miscenegation has been -- where is the government's compelling interest in prohibiting SSM?

                            As I see it, the only argument you can make on the State's side of the room is that marriage is sui generis.  It would be weak in any neutral court, but we don't really have neutral courts.

                          •  From what I understand (0+ / 0-)

                            the law in California extended to "any consenting adult" and made no specifications about that adult's gender.  Prop 8 revises that to mean "opposite sex."

                            "YOPP!" --Horton Hears a Who

                            by Reepicheep on Wed Dec 03, 2008 at 08:19:36 PM PST

                            [ Parent ]

                          •  not an assumption (1+ / 0-)
                            Recommended by:

                            It's been ruled on in "In Re: Marriage Cases".

                            But you either haven't read that or you are a right-wing troll.  Reading through your past comments, I am guessing the latter.  

                          •  And as I said, (0+ / 0-)

                            under federal law, no court has held that sexual orientation is a suspect class.

                          •  The court is wrong in this case. (3+ / 0-)
                            Recommended by:
                            AntKat, JesseCW, dakinishir

                            They have been wrong before.  The infamous Dred Scott decision that being property, Mr. Scot could not petition before the court, did not actually change the fundamental fact that he was a human being and not property.

                            The court can rule that I'm not a mammal.  It would not make me sprout wings and fly.

                            "YOPP!" --Horton Hears a Who

                            by Reepicheep on Wed Dec 03, 2008 at 08:24:23 PM PST

                            [ Parent ]

                          •  Well, of course when trying (0+ / 0-)

                            to figure out what the law is, I am forced to follow binding Supreme Court precedent, not the opinion of Mr. Reepicheep.  And the law is that there is no federal right to gay marriage.

                          •  Judicial Passivism. (0+ / 0-)

                            Since no court other than California's Supreme held gays to be a suspect class, there was no need to show compelling state interest.

                            When Maryland's Court of Appeals ruled in their Same Sex Marriage case, I said of their logic: "Is there an elephant in this room? If it was a judge's job to make that determination, law schools would have courses in zoology."

                            There was enough pretzel logic in the majority decision that it's hard not to suspect that they were writing from an agenda to deny gays the right to marry. I had diaried a critique of that decision, and I think it disproves your contention.

                            The court did not find that gays aren't a "suspect classification," just that the relevant laws did not speak to them as a class. For instance, they differentiated the Conaway v. Deane and Polyack decision from the Loving v. Virginia case in that the Virginia law didn't ban all interracial marriages, just where one spouse is White. Had Maryland law forbade gays but not lesbians from marrying people of the same sex, that would have met their test.

                            Proud Citizen of Barackopolis.

                            by Judge Moonbox on Wed Dec 03, 2008 at 06:58:11 PM PST

                            [ Parent ]

                          •  Which isn't at all relevant in California (0+ / 0-)

                            Here, Sexual Orientation is a protected class.

                            That's all that matters.

                          •  read "In Re: Marriage Cases" (1+ / 0-)
                            Recommended by:

                            This point is addressed at length in the May 15th decision, which is not affected by the voters' opinions on Prop 8.  

                            And it's not only about federal rights to equal protection, but about rights explicitly recognized as belonging to ALL citizens in the California Constitution.

                          •  Until that Constitution was amended. nt (0+ / 0-)
                          •  Wrong again. (3+ / 0-)
                            Recommended by:
                            scott5js, Mayken, IwishUwell

                            Voters can make minor amendments, but not substantial revisions.

                            As the petitioners point out, Prop 8 would be a substantial revision.  

                            Thus the court will be addressing whether Prop 8 underwent the appropriate process to become part of the Constitution.

                            If you're not a troll, try reading the actual documents involved before spouting off on them.  You don't appear to know what you're talking about.  

                          •  I fail to see how this is (0+ / 0-)

                            different from 1972's Prop 17.  In any event, every single court to consider this amendment/revision argument in context of gay marriage rejected it.

                          •  The context that matters is CALIFORNIA's laws. (0+ / 0-)

                            Other states' proceedings are irrelevant.  

                          •  You don't see the difference between (0+ / 0-)

                            defining "cruel and unussual" on the basis of public perception and whether or not a bare majority can trash the equal protection and equal acess clauses?


                          •  Untill some tried to pass of a revision (0+ / 0-)

                            as an ammendment.

                            This is not the U.S. Constitution.

                          •  This is where you and I don't see eye-to-eye (6+ / 0-)

                            You are missing the point that these rights were created by the majority.  They didn't just appear out of thin air.

                            Actually, they did.  Everything that you can do if you are stranded on a desert island is a part of your portfolio of rights.  Brutus spoke of "the state of nature," and that is where you start when looking at the Constitution the way the Framers did.  They were heavily influenced by the "deistic heresy," and the corollary of natural law.

                            In a state of nature, if I am bigger and stronger than you, you don't have any rights, as I can take them away by force.  We agree as a society to give up certain of those rights in order that we can gain the benefits of living in that society.  To wit:

                            We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men,

                            The residuum of rights we retain (the first nine Amendments) are isolated from the tyranny of the majority by the BoR.  We give up certain rights in order that we may stand a better chance of retaining the remainder.

                            When we talk about statutory rights, we are talking about benefits accruing from our entry as parties into the covenant we call the Constitution.

                          •  If you are on a deserted island (0+ / 0-)

                            you cannot marry anyone.  If there is a mate, you obviously cannot have any sort of government recognition of your union.  What is being asked for here is government recognition, and therefore it follows that the rights we are talking about are government created.

                          •  But then, there is that pesky 14th Am (0+ / 0-)

                            If one couple's marriage is recognized (and the right to marry is fundamental), then every couple's marriage must be recognized, absent a compelling state interest in not recognizing some marriages.  Whether recognition gives rise to "statutory rights" is beside the point.

                            Close cousins can't marry, on the grounds that such unions produce mentally deficient offspring. If there is a similarly compelling reason for banning SSM, I'm not aware of it.  

                          •  not a good analogy (3+ / 0-)
                            Recommended by:
                            scott5js, texcubsf, dakinishir

                            The death penalty amendment clarified the meaning of the people's right to be free from cruel and unusual punishment, a right which may be adjusted according to the wishes of the majority.

                            Unlike that amendment, Proposition 8 if enacted would remove the fundamental right to marry, which the court has recognized as part of the rights to privacy and liberty from just one suspect class of citizens (imagine if we had reinstated the death penalty only for Mormons!), and more importantly, would remove the entire arena of equal protection under the law from the purview of the courts and place it at the whim of the majority.  The whole point of equal protection is that it is NOT subject to the whims of the majority.  

                            In other words, Prop 8 is an illegal attempt to completely restructure the balance of powers in California and make substantial and far-reaching revisions to the Constitution.

                          •  That's just word games (0+ / 0-)

                            The death penalty proposition REMOVED a fundamental right not to be subject to cruel and unusual punishment that ends your life.  I too can play that game.

                            And nothing in California's Constitution states that all of the Constitution is subject to the initiative amendment process, but the EPC.  Which means that EPC is also subject to majority's amendments/

                          •  Are you a US citizen? (0+ / 0-)

                            Rights are imbued in us by our Creator, dude.

                            Back to school with ya!

                            Want more smartass? Read my blog.

                            by PhoenixRising on Wed Dec 03, 2008 at 05:18:39 PM PST

                            [ Parent ]

                          •  Ummm... yes I am... (0+ / 0-)

                            And really?  The right to inheritance and specific tax rate is imbued by a Creator?  And to the extent that they are, I thought courts can only interpret legal documents, not Creator's actions.

                          •  Obviously you don't know the difference between (2+ / 0-)
                            Recommended by:
                            karateexplosions, AntKat

                            rights, priveleges and responsiblities.

                            The country's founders believed (as do I) that RIGHTS are imbued by the creator and are of the very essence of human dignity. Since these RIGHTS are an inextricable part of our humanity, they cannot be legitimately withdrawn by any government. Among these are the right to free speech, the right to confront accusers, the right to be free in one's papers, property and person, the right to have charges under law enumerated when the government wishes to confine you, etc.

                            PRIVILEGES are not legitimately bestowed by law. They are social constructs that society allow because one is exceptionally productive, heroic or does special service to the community. Captains of industry, for example, are permitted by society to accumulate great wealth because they find ways to create wealth and lift society.

                            RESPONSIBILITIES are the shared obligations we have to each other, to the nation and society, and to the creator. These are shared equally by everyone. Using your example, all must share the responsibility to pay taxes; but we have decided that those who have great privilege have a greater responsibility, so our income tax is progressive.

                            Yeah, methinks you need to go back to school.

                          •  Well, then if anyone is confusing the (0+ / 0-)

                            terminology, it is those who talk of "rights" flowing from marriage.  Since that is now the adopted shorthand, I see no need to qualify my every post with an appropriate footnote.

                          •  No, but some clear thinking would be welcome. n/t (1+ / 0-)
                            Recommended by:
                          •  The right to equal access and equal protection (0+ / 0-)


                            Review a few of this courts recent decisions.  They will overturn Prop 8.

                            The rest?  Sound and Fury, signifying nothing.

                          •  Are they rights? (5+ / 0-)

                            Consider the Earned Income Credit.  It is a gift from the government (all of us) to individuals, pursuant to statute (which is the only way the government can act).  Once you cash the check, it is your property, but the government can discontinue the program at any time.  Do you have a right to the EIC next year?

                            Take the "right" to practice law.  Is it a right, or something else?  Anyone can contract with another to represent him; we call the relationship an agency, and the individual who is representing him, an agent or attorney-in-fact.  Statutes limiting entry into these contracts (most notably, the right to represent others in a court of law) are restrictions upon the freedom of contract.  But yet, we call it the "right" to practice law.

                            Every constitution I have seen has something in it, either explicitly or implicitly, to the effect that

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

                            For a right to be "inalienable" -- and, for that word to have meaning -- it can't be given to you by the government.  The Framers made this clear in the DoI.

                          •  No, sorry, you're wrong. (2+ / 0-)
                            Recommended by:
                            AntKat, chiefscribe

                            The courts have long upheld that a majority does not have the power to interfere with the rights of a minority.  If that were acceptable, then a group of people could petition that Drgrishka should not be allowed to work, or adopt children, and that the state may consider Drgishka's Drgrishkaness in deciding whether she can keep her own children.  They could vote that Drgrishka cannot own property or go to school.  You, Drgishka, would shout "You can't do that, I have rights!"  But the majority could reply, "Ah, you used to.  But we just voted your rights away, and we are taking all of your stuff too.  Nice car."

                            "YOPP!" --Horton Hears a Who

                            by Reepicheep on Wed Dec 03, 2008 at 08:14:17 PM PST

                            [ Parent ]

                          •  It's not an "interesting approach" (1+ / 0-)
                            Recommended by:
                            Cali Techie

                            It's the entire basis of our form of government.

                          •  Do you find trying to explain our basic (0+ / 0-)

                            government to people who claim to be progressive to be exhausting?

                          •  Actually it was not 50% + 1 of the (4+ / 0-)

                            population that voted for it.  It wasn't even 50% + 1 of those that voted, rather it was 50% + 1 of those that voted on the issue.

                            There is a reason for the Bill of Rights in the US Constitution.  There is a reason that it is so hard to amend the US Constitution.

                            CA government is a joke.  The recall of a newly elected governor was too easy, the changing of the state constitution is too easy, the initiative process is too easy, etc...

                            We seriously need to fix the CA Constitution and how we run our state.

                          •  Well, Decisions Are Made By Those Who Show Up (0+ / 0-)

                            That said, I understand what you're saying.

                            You can have your "Under God" back when I get my "Liberty and Justice For All" back.

                            by karateexplosions on Wed Dec 03, 2008 at 05:59:13 PM PST

                            [ Parent ]

                          •  Time to reform the system (0+ / 0-)

                            Yes, the recall, referendum and initiative system in our state is crazy. There was a time and a place for it but now it's become exactly the opposite of what it was put in place for. Time to reform the system.

                        •  I would opine that (1+ / 0-)
                          Recommended by:

                          marriage falls under "pursuit of happiness".  Then again, the whole argument that 50%+1 controls in all acses is, at best, legalistic quibbling.

                          But what the hey, I've only worked in the legal system 26 years - I know nothing.  :)

                        •  In California, rights aren't subject to (1+ / 0-)
                          Recommended by:

                          a 50% + 1 vote, as you'll see in March.

                      •  No, it's not (7+ / 0-)

                        The idea of a "living constitution" is that where interpretation is required, the constitution should be interpreted in accordance with contemporary values, which naturally evolve over the course of time.  It has absolutely nothing to do with the question of changing the language of the constitution, or of how easy it should be to make such changes.

                        As far as the question of Californians being able to vote in changes to their consititution by simple majority vote, the whole idea of having a constitution in the first place is to have a foundational set of laws that address fundamental rights, responsibilities, and other matters that shouldn't just be changed at the drop of a hat.  Allowing the constitution to be amended by simple majority vote makes a mockery of the idea of even having a constitution.

                        •  What better way of knowing (0+ / 0-)

                          "contemporary values" then to ask the contemporaries?!

                          In any event, the "living Constitutionalists" believe in changing (though the call it "interpreting") the Constitution.  They care not that the federal Constitution EXPLICITLY provides for teh death penalty.  On THREE separate occasions.  That is of no consequence.  The believe they can ignore that language and "interpret" the C&U clause to declare the death penalty unconstitutional.  You can call it "interpreting," but that doesn't change the fact that you are changing it.

                          •  Sorry, you're wrong. (6+ / 0-)

                            In any event, the "living Constitutionalists" believe in changing (though the call it "interpreting") the Constitution.  They care not that the federal Constitution EXPLICITLY provides for teh death penalty.  On THREE separate occasions.  That is of no consequence.  The believe they can ignore that language and "interpret" the C&U clause to declare the death penalty unconstitutional.  You can call it "interpreting," but that doesn't change the fact that you are changing it.

                            You're entitled to your personal opinion about whether or not a particular interpretation of the constitution is correct, but you're not entitled to your own personal definition of the words "change" and "interpret."  And it is a fact that the death penalty is not explicitly provided for anywhere in the constitution, and the question of whether the death penalty constitutes "cruel and unusual punishment" under the Eighth Amendment is certainly open to interpretation.

                            Incidentally, I think it's funny that you and your fellow right-wingers, who spend so much time whining about "living constitutionalists" who "change" rather than "interpret" the constitution, choose to ignore altogether the Equal Protection Clause of the 14th Amendment when it comes to the issue of gay marriage.

                          •  Please read your Constitution (0+ / 0-)

                            Death Penalty is explicitly provided for in 4 places in the Constitution.  The 5th Amendment (capital crime), and again there (jeopardy of life), and again there (deprived of life); 14th Am (deprived of life).

                            So in your world, if the Court "interprets" the 35 year old requirement to actually mean 50 years old (because now people live longer) it is not a change so long as the Court calls it "interpretation."  And if the Court "interprets" the First Amendment Free Exercise Clause to mean "except Shintoism" that too is an "interpretation" and not a change?  If so, then words lose all meaning.  


                          •  You're deliberately torturing (6+ / 0-)

                            the language of the constitution to suit your own personal agenda, which is pretty hypocritical considering your hysteria about "living Constitutionalists" who change rather than interpret the law.  None of the instances you mentioned explicitly empowers the use of capital punishment, they merely place restraints on its hypothetical application.  And the use of capital punishment is still subject to the "cruel and unusual punishment" provision of the Eighth Amendment, which, depending on interpretation, might prohibit all capital punishment, or merely prohibit it under certain conditions.

                            This is one of those places where the idea of a "living constitution" comes into play.  Most people in the time of the founders, for example, might not have thought it "cruel and unusual" to execute a person for participating in consensual gay sex.  But most people in our time would definitely consider it "cruel and unusual" to do so.  Most people in our time, here in America anyway, would say that there are at least some cases where capital punishment is appropriate.  But future generations may see capital punishment as universally cruel and unusual.

                            So in your world, if the Court "interprets" the 35 year old requirement to actually mean 50 years old (because now people live longer) it is not a change so long as the Court calls it "interpretation."

                            Apples and oranges.  The constitution clearly states that a person has to be 35 years old to run for president, so there's no ambiguity there that requires interpretation.  It does not, however, specifically provide for the use of capital punishment.

                            And if the Court "interprets" the First Amendment Free Exercise Clause to mean "except Shintoism" that too is an "interpretation" and not a change?  If so, then words lose all meaning.  

                            The court is, in fact, empowered to determine whether Shintoism is a religion and thus subject to the Free Exercise Clause.  Of course, the court would have to seriously torture the definition of what constitutes a religion to exclude Shinto, and I doubt that it would ever do so.  But that wouldn't necessarily be the case if we were talking about, say, Scientology instead of Shinto - many would argue that Scientology is not a legitimate religion, but a predatory cult that was artifically created with the purpose of exploiting people.

                          •  That is nonsense (0+ / 0-)

                            The 5th and the 14th Amendment explicitly permit capital punishment because they permit deprivation of life provided there is due process.  The 8th Amendment cannot possibly prohibit that which the 5th explicitly allows.  The Fifth specifically mentions capital offenses.  The fact that it does not state which offenses are or must be capital does not mean that the state does not have a right to have a list of those.  Otherwise the word "capital" would have no meaning and be mere surplassage.

                            There need not be an ambiguity in order to "interpret" a "living" Constitution.  Since everything must be interpreted with reference to today's mores and circumstances (but somehow without asking people what those more are), it is perfectly permissible to conclude that 35 year floor is anachronistic and needs to be interpreted as a % of total life expectancy.  (Much like many people suggest we "interpret away" the 2d Amendment).

                            But I see you are not averse to "updating" the Constitution via courts whenever you find a group that doesn't suit your fancy.   Like, for instance, Scientologists.  Who knows, maybe Mormons or Catholics or some other religious sect that you dislike is next.

                          •  Like all right-wingers, you start with your (3+ / 0-)
                            Recommended by:
                            Ivan, JesseCW, chiefscribe

                            conclusion and go searching for justificaton. That's the rewriting you accuse others of.

                            Interpretation begins with the constitution and asks what it means today. Right wingers are incapable of interpretation because their ideology does not allow the asking of questions; only the assertion of truths, for which support must be found because they are, tautalogically, truths.

                            THAT is why, even if you read the Declaration of Independence, you cannot understand it; for it does not declare truths with which you are comfortable, or truths which you recognize as universal.

                            So, it's ok to identify certain groups as "lepers" and "untouchable" by justice. It's ok to deprive some of their right to counsel, habeas corpus, right to face their accusers, right to treatement with dignity, etc., because, after all, rights are only the privileges the ruling elite has allowed by virtue of stating it's own truths.

                          •  Wrong. (2+ / 0-)
                            Recommended by:
                            scott5js, JesseCW

                            The 5th and the 14th Amendment explicitly permit capital punishment because they permit deprivation of life provided there is due process.  The 8th Amendment cannot possibly prohibit that which the 5th explicitly allows.  The Fifth specifically mentions capital offenses.  The fact that it does not state which offenses are or must be capital does not mean that the state does not have a right to have a list of those.  Otherwise the word "capital" would have no meaning and be mere surplassage.

                            Torture the text all you want, but the 5th and 14th Amendments, like the rest of the constitution, do not explicitly delegate Congress or the states the power to use capital punishment.  You could certainly say that there's an implied right to use capital punishment, and the 10th Amendment relegates powers not specifically given to Congress to the states or the people.  But that implied right is subject to the explicit limitations against cruel and unusual punishment imposed by the 8th Amendment.

                            There need not be an ambiguity in order to "interpret" a "living" Constitution.  Since everything must be interpreted with reference to today's mores and circumstances (but somehow without asking people what those more are), it is perfectly permissible to conclude that 35 year floor is anachronistic and needs to be interpreted as a % of total life expectancy.  (Much like many people suggest we "interpret away" the 2d Amendment).

                            Please cite specific examples where people have used the "living constitution" argument to call for ignoring any clearly worded language in the Constitution by "interpreting away" its meaning.

                            As far as the Second Amendment is concerned, I disagree with those who interpret the part about "a well regulated Militia, being necessary to the security of a free State" as implying a collective, rather than individual, right to keep and bear arms.  But I do acknowledge the fact that there's enough ambiguity there to justify the debate.  The idea that this debate is nothing more than an attempt to "interpret away" the Second Amendment is intellectually dishonest.

                            But I see you are not averse to "updating" the Constitution via courts whenever you find a group that doesn't suit your fancy.   Like, for instance, Scientologists.  Who knows, maybe Mormons or Catholics or some other religious sect that you dislike is next.

                            Yeah, I see your point - we should just do the strict constructionist thing and go by the Constitution's definition of what constitutes a religion.  Oh, wait, that's right, there's not one.  And this has nothing to do with whether I like a particular group or not, and everything to do with whether a particular group is treated like a religion or a business.

                          •  I'm sorry you took a jump that I (0+ / 0-)

                            didn't follow.  Are you saying that the courts have taken away the rights of Scientologists and Mormons?  Or are you saying that opponents of Prop 8, if they had their way, would take away the rights of a religious sect they don't like?

                            I have not heard of any anti-Scientology legislation being passed.  If it were, I guarantee you that the ACLU you be there fighting against it tooth and nail.

                            I can't speak for everyone else, but when I say "Imagine if we said mormons couln't marry anybody but Protestants," I am using exaggeration and absurdity to make my point.  I would be vehemently against any kind of legislation that sought to take away the rights of a religious group.  

                            "YOPP!" --Horton Hears a Who

                            by Reepicheep on Wed Dec 03, 2008 at 08:36:19 PM PST

                            [ Parent ]

                          •  I've sparred with Doc a few times (3+ / 0-)
                            Recommended by:
                            trueblueliberal, JesseCW, IwishUwell

                            (and yes, it's always been friendly), and can attest that he is no right-winger.  

                            As for the EP clause, for me it is dispositive of the issue, as marriage is a fundamental right (Loving v. Virginia).  That triggers strict scrutiny, and no AG has argued that there is a compelling state interest in banning SSM.  But as a practical matter, that and a dollar won't buy you a latte at Starbucks, for reasons I have blogged on before.  (And of course, I don't get a vote.)

                            It's not that we don't agree that SSM should happen but rather, a practical question of how we get there within the framework of law.

                          •  He's no right-winger? (1+ / 0-)
                            Recommended by:

                            Please! He's an Olin Fellow and a Federalist Society member.

                            "Lash those traitors and conservatives with the pen of gall and wormwood. Let them feel -- no temporising!" - Andrew Jackson to Francis Preston Blair, 1835

                            by Ivan on Thu Dec 04, 2008 at 05:26:46 AM PST

                            [ Parent ]

                        •  Whoever came up with that silly idea?! (1+ / 0-)
                          Recommended by:

                          A constitution is no different from any other law, except with regards to its primacy.  It is a dead document ... and like any other law, needs to be interpreted, as opposed to rewritten by judges on a whim.

                          Let's call the "living Constitution" what it is: a judicial coup d'etat.

                          •  Yes, of course it needs to be interpreted. (5+ / 0-)

                            But there is a legitimate question about whether it should be interpreted in accordance with the values and/or intent of the people who wrote the law, or in accordance with contemporary values, or in accordance with some higher set of ethical precepts, or in accordance with precedents established in English common law and/or Roman civil law, or some combination of all of the above.  The constitution doesn't establish firm requirements, or even guidelines, about how it, or any other law, should be interpreted.

                            In any event, interpreting the constitution, or any law, where there is ambiguity about its meaning, is absolutely not a "judicial coup d'etat."

                          •  It doesn't have to (1+ / 0-)
                            Recommended by:

                            Rules of judicial interpretation evolved from English common law.  First and foremost, a statute means what it says and says what it means (the "plain meaning" rule), with exceptions for certain ambiguities.  The Framers didn't need to lay this out, but their CA counterparts did (art. I, sec. 26: "The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise").

                            The danger in entrusting statutory construction to the discretion of the courts is that the courts will tend to substitute their own provincial values for those of the authors.  While this may work to your benefit today, it may work to your detriment tomorrow.

                            I want as much discretion as possible removed from the hands of individual judges, and the authorities of the day (Coke, Blackstone, and Hamilton in the Federalist) agree.

                          •  Plain meaning (0+ / 0-)

                            Rules of judicial interpretation evolved from English common law.  First and foremost, a statute means what it says and says what it means (the "plain meaning" rule), with exceptions for certain ambiguities.

                            Of course, which is why I included the caveat "where there is ambiguity about its meaning."  If the constitution specifically states something, there's no need for interpretation, it's just a matter of enforcement.  But if the constitution is ambiguously worded, or if it contradicts another part of the constitution that hasn't been repealed, then interpretation comes into play.  And unfortunately (or perhaps fortunately, depending on your outlook), our founders didn't see fit to establish requirements or guidelines governing how law should be interpreted.  Moreover, they did see fit to include the Ninth Amendment, which opens up the whole question of what non-enumerated rights are retained by the people and how they should be applied.

                          •  Actually, there is another rule (0+ / 0-)

                            that the last expression of the sovereign controls.  As such, if there was a law on the book legalizing SSM, and another law repealed it either directly or by implication, the earlier law is deemed repealed.

                            As I see it, the remedy lies in federal court, but the risk of getting it is compounded by the fact that our judges don't often follow the law.

                          •  To be clear (1+ / 0-)
                            Recommended by:

                            when I said this:

                            [...] if it contradicts another part of the constitution that hasn't been repealed, then interpretation comes into play.

                            What I meant was that when two rights contradict each other, it's a matter of interpretation which right wins out.  For example, the Constitution guarantees free exercise of religion, but it also implies the right to life, which is generally interpreted as a more fundamental right.  So if someone kills a person under the pretext of sacrificing them to their god(s), their right to free exercise doesn't protect them from being prosecuted for murder.  My statement above was poorly worded, so I apologize that my point wasn't clear.  But what you say about "the last expression of the sovereign controls" certainly reflects my layman's understanding of the law, though I've never heard it phrased that way before.

                            With regards to same-sex marriage, here's my layman's take: the Constitution doesn't explicitly give Congress the right to regulate marriage, so under the 10th Amendment, this right would devolve to the states, or the people.  However, the 14th Amendment prohibits states from making or enforcing any law that deprives citizens of equal protection under the law.  If judges follow the law correctly, then I think that they'll apply this interpretation and allow gay marriage.  I do think you're right that there's a risk that judges won't follow the law, but I think this risk comes not from the people subscribing to the idea of a "living constitution," but rather from those who call themselves "strict constructionists."

                          •  Strangely enough, you're right (0+ / 0-)

                            I'm an originalist in the Scalia mold (Scalia is not faithful to originalism, and if he was, I think that a lot of people here would like him a lot more).  It leads to a very libertarian jurisprudence on social issues, and a narrow view of government powers.

                            The fundamental problem with those who adhere to the "living constitution" theory is that they have no principles upon which to rely.

                            My concern is that the courts could see marriage as being sui generis (roughly, a class of one), and that the fundamental right only extends to relations with the opposite sex.  Scalia and Thomas will certainly do this, even if they have to be unfaithful to their originalism to get there.

                          •  The rules of interpretation are clear (0+ / 0-)

                            What I meant was that when two rights contradict each other, it's a matter of interpretation which right wins out.

                            This is true when the provisions are passed at the same time, as in the enactment of a constitution.  It isn't true in case of a constitutional amendment, the very purpose of which is to alter the constitution.  There, the rule that the last expression of the sovereign is controling applies.

                          •  For what its worth (0+ / 0-)

                            I know that in CT, Supreme Court ruling in "Doe vs Doe" roughly 1998 the court ruled divorce jurisprudence is totally a creature of statute, created and governed by the legislature.

                  •  I think the point is that amendments (4+ / 0-)

                    of basic laws by referenda and majority points are idiotic.  California could have a constitution calling for a legislature of monkeys, too, and hardly have more of a circus then we already see with its overuse of referendums and recalls and propositions and assorted bull.

              •  No, our Consitution was not created by simple (0+ / 0-)

                majority vote.

                In order to create our current Constitution, first 2/3rds of our legislature called for a convention.

                Then we elected delegates to represent us at that convention, who voted to present the constitution to us.

                Then we voted to pass it.

              •  Excuse me, I was under the impression that (0+ / 0-)

                a majority vote could change the constitution of California, but it seems pretty explicit that our judges have sworn an oath to review any change that violates the Equal Protection Clause in the 14th amendment, protect the rights of minority groups, and overturn the law in question.

                It isn't their choice and it isn't legislation. It is what they swore an oath to do.

                The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"

                More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgment by state leaders, and governments, even including some rights that arguably were not protected from abridgment by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means, of course, has been the subject of great debate, and the story of the Equal Protection Clause is the gradual explication of its meaning.


                Apparently I am way behind in my understanding of this situation. I know I came late to this blog discussion, but can some one please clear up for me how this all got so complicated?

                I just figured that the pro 8 people had played upon the lack of education of their voting block, leaving out the very relevant fact that a majority vote does not justify a discriminatory law under the constitution of the United States.

                Can someone post a link to whatever I have missed?


                I resent the Joe Sixpack thing. I am Jenny Box-Wine.

                by Azubia on Thu Dec 04, 2008 at 07:11:01 AM PST

                [ Parent ]

            •  that's the point of the lawsuits (3+ / 0-)
              Recommended by:
              Big Tex, craigkg, trueblueliberal

              Is that it can't be CHANGED by a simple majority vote.  It can only be AMENDED.

              A CHANGE (aka revision) requires a 2/3 vote of legislature.

              •  "Changed at all" (1+ / 0-)
                Recommended by:

                I am including amendments in my "changed at all" sentiment.  And I specifically said with a "simple majority vote" too.  Meaning that I if they are going to allow a popular vote to do anything at all with respect to the CA Constitution it seems crazy that it only takes a simple majority vote.

            •  Ammended, not revised (0+ / 0-)

              And the stripping of recognized rights is revision.

              A simple majority doesn't allow revision.

          •  Thank you. (0+ / 0-)

            I resent the Joe Sixpack thing. I am Jenny Box-Wine.

            by Azubia on Thu Dec 04, 2008 at 06:35:05 AM PST

            [ Parent ]

        •  Not really true. (8+ / 0-)

          The first ten amendments of the federal constitution are an enumeration of rights - supplementing the constitution as it was originally written.  They were not added in contravention, but instead to explicitly affirm certain rights.

          There was a really interesting debate in Congress at the time about whether or not to include them too.

        •  Welcome back, Doc (0+ / 0-)

          I look forward to your treatment of -- or rejection of? -- the notion of "fundamental rights" in your discussion of how easily a constitution should be able to be amended.

          So far, you don't make a lot of sense in this thread.

          The netroots is what the Letters to the Editor page wanted to be when it grew up.

          by Seneca Doane on Wed Dec 03, 2008 at 06:08:32 PM PST

          [ Parent ]

        •  Not necessarily (0+ / 0-)

          Most amendments (see the Bill of Rights in the US Constitution) expand and clarify the document not contravene its basic meaning.

          Prop. 8 clearly guts the equal protection clause in the CA Constitution, which is a fundamental change, and therefore should be treated as a revision not an amendment.

          So many impeachable offenses, so little time... -6.0 -5.33

          by Cali Techie on Thu Dec 04, 2008 at 12:05:05 AM PST

          [ Parent ]

      •  What it the eaiest way to make sure that we all (0+ / 0-)

        have "due process" regarding this issue?

    •  I have every hope that the CA Supreme court (1+ / 0-)
      Recommended by:

      will do right by the people of CA, and overturn this bigoted garbage.

      If they do, can the bigots take the case to the US Supreme court?  Or, since it's a CA constitutional issue, is the CA supreme court the final word?

      I'm worried about a possible 5-4 SCOTUS decision... in the bigots favor.

      "My greatest strength, I guess it would be my humility. Greatest weakness, it's possible that I'm a little too awesome." -Barack Obama 10/16/08

      by Hopeful Skeptic on Wed Dec 03, 2008 at 01:25:13 PM PST

      [ Parent ]

    •  While I'm sympathetic to the argument (0+ / 0-)

      and hope it's successful, I can't help but wonder if there really is a practical threat to anyone besides the glbt community. While in theory, an unpopular religious group could have it's rights revoked, as a practical matter, that would not be permitted under the federal Constitution no matter how someone might interpret the California constitution. Has anyone come up with a truly plausible group that might be impacted other than the glbt community? I think it would be very useful to identify a scenario that could actually play out and present that both to the court and the public in the effort to roll back prop 8.

      •  single people? (5+ / 0-)

        In my experience, people don't like to listen to slippery slope arguments, however true they may be.

        But as another commenter suggested, single people may be next in line, as they could be discriminated against in the areas of adoption, reproductive healthcare access, inheritance, etc.

      •  I agree it's not a great argument (2+ / 0-)
        Recommended by:
        AntKat, texcubsf

        in the real world at this moment in time.

        More realistically, Prop. 8 is just the start of further gay-bashing by the bible thumpers. Just look at one of the pro-H8 ads, claiming that a vote against 8 was a vote for teaching homosexuality to kids. Technically, no, but logically (at least logic as perceived by a wingnut), yes. It will be all the easier to get passed further anti-gay propositions banning gays from adopting children, teaching children, etc., if Prop H8 is upheld.

      •  in Arkansas, legislation based on this type (7+ / 0-)

        of bigotry is already going to hurt hundreds if not thousands of kids who are in need of homes.

        This is not speculation, it's happening.

        "My greatest strength, I guess it would be my humility. Greatest weakness, it's possible that I'm a little too awesome." -Barack Obama 10/16/08

        by Hopeful Skeptic on Wed Dec 03, 2008 at 02:26:07 PM PST

        [ Parent ]

      •  These things are never worded (1+ / 0-)
        Recommended by:

        as as negatives. They are always worded in the positive, as "protecting" or "preserving" or "defining" something. E.g. Prop 8 is worded as refining the definition of marriage, not as the negative "gay marriage is illegal". (Even though we all know the intent and effect are the same.)

        I'm sure the lawyers here could come with a positive wording of an amendment that would effectively ban fluffy cats as house pets.

        The W ... it stands for Wrong.

        by nosleep4u on Wed Dec 03, 2008 at 02:32:47 PM PST

        [ Parent ]

      •  I don't know about you, (3+ / 0-)
        Recommended by:
        lotlizard, AntKat, dakinishir

        but I'd rather not have my constitutional rights solely in the hands of Antonin Scalia, Clarence Thomas, Samuel Alito, John Roberts, and Anthony Kennedy. A viable state-constitutional system standing between me and those five jerks would appear to be of tremendous value, actually.

        Obviously there are numerous groups that are more or less as despised by electoral majorities, in California or elsewhere, as GLBTs are. Off the top of my head, how about atheists, Muslims, recent immigrants (documented or not), single mothers, welfare recipients, polygamists, gang members, illegal-drug users, criminal defendants, convicts, or people who park illegally in handicapped spaces? It's not exactly difficult to imagine 50% + 1 of the California electorate voting to sell out the constitutional (or indeed human) rights of any of those groups.

        The "don't worry, you still have the federal courts as a backstop" argument smells pretty bad in light of the five men who rule that system.

        •  No one likes to have their constitutional rights (1+ / 0-)
          Recommended by:

          in the hands of those RATS.


          The next Supreme Court appointee should be quite unlike them :-)

          Suppose you were an idiot. And suppose you were a Republican. But I repeat myself. - President Harry Truman

          by notrouble on Wed Dec 03, 2008 at 04:20:30 PM PST

          [ Parent ]

        •  I agree with you... (0+ / 0-)

          but the argument is being made in the abstract when it needs to be made in concrete and specific terms. It's another failure of the no-on-8 campaign that they didn't make more of this potentiality and make in scary terms. Yes, I know about fear-mongering and even exaggeration but it works and I wouldn't have been above using it to instill doubt in voters' minds about passing such a disgusting prop.

          •  Wait, though. (0+ / 0-)

            I don't think you've thought this through sufficiently.

            but the argument is being made in the abstract when it needs to be made in concrete and specific terms.

            But how could that possibly work?

            The hypothetical "concrete and specific" argument you want to see seems logically impossible to me: "Hey, Californians! If Prop 8 stands, that'll mean that Group X could have their human rights taken away!"--except that, by hypothesis, Group X is a group that Californians are willing to deprive of their human rights. So the hypothesis itself ensures that any relevant concrete example will, by definition, fail to bother Californians. If it bothered them, it would therefore be irrelevant!

            "You should worry about attacks on people who, by this very hypothesis, you support attacking"? Seems to me you're setting up a test that can't possibly be met.

            Let's try an actual concrete example to show the internal contradiction in what you're looking for. How about we consider hypothetical Proposition 8.1: "Any parent who does not believe in God and/or does not provide religious instruction for his or her children shall immediately lose custody of those children." (BTW, this is not actually a particularly farfetched idea; it mirrors the real (and flagrantly unconstitutional) practice of numerous courts adjudicating divorce cases.)

            Would Californians support Prop 8.1? I don't know. If they would, then atheists should be afraid--but by the same token, the argument "atheists are at risk!" won't be effective to convince Californians that Prop 8 is dangerous, because we've just presumed that Californians think Prop 8.1 is a good idea. By being a relevant concrete example, hypothetical Prop 8.1 fails to be a convincing argument to Californians.

            The other possibility is that Californians wouldn't support Prop 8.1. In that case, the 8.1 hypothetical is irrelevant fear-mongering; it's actually not the case that atheists are at risk for this kind of provision, so the concrete example is no help to make the case that Prop 8 is dangerous.

            By contrast, stating the anti-8 argument in the abstract ("Will you be next?") allows everyone, at least in theory, to substitute a group that they do sympathize with. Everyone is a member of some minority or other, and everyone knows (or is related to) members of lots of other minorities. As a result, abstraction can't help but be a better tactic in this context.

      •  Why not red-heads (0+ / 0-)

        or the left handed?

        No court has recognized either group as a suspect class - it would be even easier to deny them equal access to marriage contracts.

        Why not the infertile?  Women who have hysterectomies?  After all, the bigots claim the "purpose of marriage is to protect children" and that those who can't biologically produce children "the traditional way" have no right to be getting married.

    •  A small suggestion... (5+ / 0-)

      Bring up the Schiavo case.  If this is allowed to stand, then a majority of Californians can 'vote' to interfere with your personal family business - because there is nothing in the US Constitution that would prevent them from doing so.

      "I think I speak for most Americans when I say, anybody mind if he starts a little early? Would that be a problem?" - David Letterman

      by RichM on Wed Dec 03, 2008 at 01:56:54 PM PST

      [ Parent ]

    •  Why should two people of any sex have rights (2+ / 0-)
      Recommended by:
      Samer, esquimaux

      that two other people don't. Under what circumstance does this NOT violate the "due process" clause?

    •  Distribute (0+ / 0-)

      "You're going to be on all the TV? Are you going to interrupt my TV?" -Malia Obama to her father as quoted by her mother

      by waitingforvizzini on Wed Dec 03, 2008 at 03:34:59 PM PST

      [ Parent ]

    •  Thanks, and a question. (0+ / 0-)

      I know that the court said it was, but can someone explain why marriage (of any kind) should be a fundamental right?  Not all progressives view it that way; just look at Norway, where 50% of all children are born out of wedlock because the couples don't think it's important to be married.

      •  not sure anyone is saying that (1+ / 0-)
        Recommended by:

        It crosses into civil rights territory because you're treating different classes of people in a different way.  But I don't think anyone is saying that marriage is a fundamental right.

        I think it's my right to marry my girlfriend because of the status and legal privileges that come with marriage, and it makes me really angry that straight people have that privilege and I don't.  

      •  In California (1+ / 0-)
        Recommended by:

        We have an equal access provision as well as an equal protection clause.

        If the government offers a contract service, they can't restrict access on the basis of Gender.

        One of two things happens in March -

        1. Prop 8 is overturned as a revision.
        1. Marriage goes away, keeping our constitution consistant.
        •  I understand that, but... (0+ / 0-)

          playing Devil's Advocate here, technically speaking, gays still have the right to marry.  They'd just have to marry someone of the opposite gender.  So I'm not sure if the restricting access argument works for gender here.

          •  That's exactly the same argument (0+ / 0-)

            those in favor of anti-miscegination laws made.

            "Well, blacks can marry each other, just not whites."

            Didn't hold water then, doesn't hold water now.

          •  Equal protection is about the class (0+ / 0-)

            You can not avoid equal protection anlaysis through shell games such as you describe or else it would render the analysis meaningless. Do you have a background in law? It does n't sound like it? I am not trying to be a jerk, but some of these mind games are getting old.

        •  what about option #3? (0+ / 0-)

          My preference would be to get the State out of the marriage business entirely - gay, straight, or otherwise.

          Let the State grant the legal contract of civil unions, and leave marriage out of it.

          If the argument is about sanctity of marriage, than it absolutely shouldn't be granted by the State.

          or is this what you mean by your option #2?

          •  Marriage, for all of our history (1+ / 0-)
            Recommended by:

            as a nation, has had both a civil and a religious meaning.

            Each Religion has always defined for itself what the Religious meaning and eligibility requirements are, while the Civil Government has always decided what legal rights, responsibilities, privleges, and immunities it confers, and placed restrictions on who can access it in a civil context.

            Which word would we allow to be defined away by Prophets and Popes next?  "Life"?

          •  that's already what hte state does (0+ / 0-)

            you are just arguing semantics. The problem here is not that we are not talking civil marriages. it is that we are talking creating two civil institutions- one civil marriage (with more rights) and one domestic partnership/civil unions (with less rights). There is no way around this issue because of the de facto realities of how the law and private sector work.

    •  Judicial realism (0+ / 0-)

      The talk around the state is that the Justices may not want to follow the obvious implication of their May decision because they don't want what happened to former Chief Justice Rose Bird and her colleagues -- being voted out -- to happen to them.

      I don't like judges's seats being up for a vote in general because it encourages just this sort of catering to monied interests who feed on prejudice and antipathy for the rights of the accused.  But if we are playing a political game rather than arguing on the merits, so be it.  We need to be sending the message that if the Justices take away these fundamental rights in an unprincipled way -- leaving open the possibility that there is some principled way to do so, which I cannot currently imagine -- then the Left is going to decide that they are unfit for office and will pursue their ouster.

      This is not the way judicial decisions ought to be made.  And yet, a Justice who, having recognized a constitutional right as fundamental, would allow it to be abrogated by a simple majority vote, would have displayed such a profound lack of respect for the concept of fundamental rights that I do not see how they deserve to remain in office.

      The netroots is what the Letters to the Editor page wanted to be when it grew up.

      by Seneca Doane on Wed Dec 03, 2008 at 06:05:28 PM PST

      [ Parent ]

      •  It took two tries to get rid of Rose Bird (1+ / 0-)
        Recommended by:
        Seneca Doane

        and there was a hell of a lot more anger about her.

        Prop 8 only passed by 4 points.

        73% of the state was strongly in favor of capital punishment.

        20 point gap in public opinion.

        •  So is your argument that the Justices (0+ / 0-)

          don't have to be afraid of recall by other side?

          That's great, if they see it that way.  I'm not afraid of a fair contest.  I am afraid of an unfair one -- which is why I'd want to balance out the forces.

          The netroots is what the Letters to the Editor page wanted to be when it grew up.

          by Seneca Doane on Thu Dec 04, 2008 at 01:50:43 AM PST

          [ Parent ]

          •  Don't get me wrong (1+ / 0-)
            Recommended by:
            Seneca Doane

            we need to have their backs if it comes to that.

            The first time they tried to take Bird down, after a fairly expensive (for the day) campaign, she retained her seat with 52% of the vote.  It was only because she kept on "finding excuses" to overturn every single death penalty for 6 years after that vote that they were finally able to oust her.  It's like she was a constant irritation - eight or nine times a year "she" was overturning the death penalty for some heinous murderer and the media was reporting it statewide making her a household name.

            This is one ruling.  Voting out justices won't actually change anything, since either Arnie or a Democrat will be replacing them.  

            Also, precedent will already be established, and the anti-marriage equality forces will have a hell of a time manufacturing any standing to bring a case trying to overturn the Courts up-comming March ruling.  They will be after nothing but empty vengance.

            Only one Justice is up for a retention vote in the next four years, he's old, and he's said he won't let fear of losing influence him.

            If they try for recall, they have to burn a substantial ammount of money just on getting the signatures.  They can't "bundle" a recall effort, they have to get signatures for each justices recall individually.

            Focus on the Family is going broke, the Churches can't fund attacks on elected office-holders, and the Mormons aren't looking for more bad press.

            Lastly, we have to remember that a lot of people who voted yes on 8 just aren't that heated up about Gay folks getting married.  This became very clear to me when I was out in October talking to them.

            They believed lies claiming that their church would be forced to marry gays, and when that doesn't happen, they won't have F-all in terms of motivation for revenge on Justices.

            So, yes, if the other side gets an effort underway, we need to fight back - but remember that Churches are much more restricted in how they can advocate for or against candidates than in how they can advocate for or against Initiatives.

            •  My suggestion was that *if* Justices are (0+ / 0-)

              hearing the footsteps of a recall campaign if they vote to overturn Prop 8, leading them perhaps to abandon their May decision, then it makes sense that we should be rumbling about a recall campaign if they validate it.

              Such threats make for bad law, but may make for good politics.  Happily, if you're right that they don't have to worry about being removed from office, then they should vote to block Prop 8 and we don't have to talk about such unsavory prospects.

              The netroots is what the Letters to the Editor page wanted to be when it grew up.

              by Seneca Doane on Thu Dec 04, 2008 at 08:43:40 AM PST

              [ Parent ]

            •  Even the Christian right leadership (0+ / 0-)

              is split on this. With some saying it would be inappropriate to threaten recall. I don't think there is any real threat here, but the judges have to realize that.

  •  Let's hope they listen to reason... (8+ / 0-)

    any new developments or timelines on this front?

    By giving us the opinions of the uneducated, [journalism] keeps us in touch with the ignorance of the community. - Oscar Wilde

    by The Laughing Man on Wed Dec 03, 2008 at 12:47:52 PM PST

  •  I hope this case does well (9+ / 0-)

    the rights of gay people are riding on it.

    Semper avarus eget.

    by Avarus on Wed Dec 03, 2008 at 12:47:56 PM PST

  •  Thank you for all your work (12+ / 0-)

    Of course I'm biased, but when I try to view your argument objectively it seems to be legally quite solid.  (But I'm not a lawyer or judge...)

    My fingers are crossed that the state supreme court makes the sensible ruling that such a change to the CA constitution must be done via a revision rather than a bare-majority vote.

  •  Tipped and rec'd. (8+ / 0-)

    It's a glaringly obvious point to make, but still, it can't be made too many times.

  •  Stop the rot. Rights have to be fought for.nt (5+ / 0-)
    Recommended by:
    MBNYC, CA Nana, linkage, TokenLiberal, JesseCW

    Literature is strewn with the wreckage of those who have minded beyond reason the opinion of others. ~Virginia Woolf

    by LaFeminista on Wed Dec 03, 2008 at 12:51:19 PM PST

  •  Well, really, what's next? (12+ / 0-)

    An amendment to strip blacks of their voting rights? People seem to think that this only hurts gays; it doesn't. If my rights are up for being rescinded at a simple majority vote, so are yours, and everyone's.

    I trust Barack Obama.

    by MBNYC on Wed Dec 03, 2008 at 12:53:56 PM PST

    •  Well, if that amendment is enacted (2+ / 0-)
      Recommended by:
      Ice Blue, linkage

      you can challenge it on teh grounds taht it conflicts with the Federal Constitution.  Up until 1996 Alabama Constitution had a provision banning interracial marriage.  But it was unenforceable due to federal constraints.  If you want to argue that Prop 8 violates teh Federal Constitution, be my guest.  (But I don't think you will prevail).

      •  praytell in what way is an anti gay marriage (1+ / 0-)
        Recommended by:

        amendment/statute different from the anti miscegenation laws that were struck down?

        •  One was a statute the other is a part (1+ / 0-)
          Recommended by:

          of the Constitution.  

          •  huh, the q is how does any anti gay marriage (1+ / 0-)
            Recommended by:

            law or amendment differ from anti miscegenation laws

            •  Again, Prop 8 is part of the Constitution (0+ / 0-)

              therefore it cannot violate the Constitution.  The anti-miscegenation laws were not part of the Constitution.  That's a difference.

              Second, even the California Supreme Court did not suggest that ban on gay marriage does not survive rational basis scrutiny.  The anti-miscegenation laws wouldn't survive even that level of scrutiny.

              •  Please Restate Your Second Paragraph in English (1+ / 0-)
                Recommended by:

                The first sentence is impossible for me to parse.

                Although I see you are explicitly arguing the pro-Prop H8 side, so maybe I don't want to hear how this taking away of my civil rights (I AM married, right now) is perfectly OK in your book.

                I guess we'll be in the back of the bus as usual, until you throw us under the wheels-- as usual.

                by CajunBoyLgb on Wed Dec 03, 2008 at 01:46:40 PM PST

                [ Parent ]

                •  taking away your marriage (1+ / 0-)
                  Recommended by:

                  would seem to violate the bans on ex-post-facto laws.

                  I don't think drgishka1 is doing anything except playing the devil's advocate here. No need to get upset, he's helping you understand the other side's arguments and viewpoints.

                  •  Ex post facto ban (0+ / 0-)

                    applies only in criminal context.  But it may violate "obligations of contracts" clause/

                    •  in california (0+ / 0-)

                      they're all covered under Article 1, Section 9:

                      SEC. 9.  A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.

                      •  Yes, but EPF clause is applicable (0+ / 0-)

                        to criminal matters only.

                        •  ????? (0+ / 0-)

                          Contracts, in the ordinary way of things, are NOT criminal matters - they are civil or commerce matters. Once "contracts" are even brought up, you're out of the narrow range of "criminal matters".

                          Yes We Did! Yes We Will!

                          by TheOtherMaven on Wed Dec 03, 2008 at 03:57:08 PM PST

                          [ Parent ]

                        •  You are an idiot (0+ / 0-)

                          I know its late and this comment probably will never be read but I don't care.  You are a fucking moran.  

                          Up thread you cite the fact that an ammendment to the US constitution may controdict another part of the US constitution, best example is prohibition by the way dumbass, as a reason that an ammendment to the CA constitution my controdict another part of the constitution.  However, these things are not equal, but you seem to be too dumb to realize this.  There is only one way to change the US constitution, ammendment.  There are two ways to alter the CA constitution ammendment and revision.  The meaning of ammendment in these two contexts are not equal.  The ACLU arguement is that to take away a right already guaranteed by the CA constitution requires a revision, the higher bar for altering the constitution and not simply and ammendment as was done.  This has nix to do with the US constitution.

                          Now you are arguing about that EPE only applies to crimminal matters when that is not the case in CA.  Go fuck yourself troll.  I won't put HR's on something this inactive but I'll be sure to be watching for you in future diaries on this topic.

                          Fucking dumbass troll.

                          "It was believed afterward that the man was a lunatic, because there was no sense in what he said." "The War Prayer" by Mark Twain

                          by Quanta on Thu Dec 04, 2008 at 03:29:13 AM PST

                          [ Parent ]

                •  I opposed and continue to oppose Prop 8 (3+ / 0-)
                  Recommended by:
                  ibonewits, dmhlt 66, oaktownadam

                  I support gay marriage.  I think gay marriage is a conservative value because it encoruages people to take responsibility.  But I do not think that the Constitution mandates it.  And I certainly don't think that the Californians acted illegally on November 4 (thoug they did act unwisely).  Now, that you know where I am coming from, I will try to explain the 2d paragraph.

                  All laws that are enacted must at the very least be "rational."  That does not mean that they must be perfect.  So, for instance Medicare law gives seniors government-subsidized health care.  It is justified on the grounds that seniors cannot afford healthcare on their own.  Of course the law is a) discriminatory, b) overinclusive and c) underinclusive.  It is discriminatory because it treats old folks differently from young folks.  It is overinclusive because it covers very wealth old folks who very well can pay their own way.  It is underinclusive because it does not cover young folks who cannot pay their own way.  But it IS rational, beacuse it is rational to conclude that seniors as a group generally speaking need the help, while others do not.  (It is rational to so believe even if the facts point in an opposite direction).

                  Extending benefits only to heterosexual couples is similar.  It is rational to believe that the benefits should go to couples most likely to have children.  And while some hetero couples will not have children and some gay couples will (over/under-inclusive here) it is not irrational to extend benefits only to those who are more likely to have kids.  

                  The same argument cannot be made with respect to interracial marriage.  

                  •  You're conflating parenting with matrimony (1+ / 0-)
                    Recommended by:

                    Using your logic, then the laws should be written so those benefits accrue to people who are parents, not simply to people who are married.

                    •  You must not have read what I said (0+ / 0-)

                      Yes, some laws use one status as a proxy for another.  The question is is it rational.  Medicare laws use age as a proxy for wealth.  Rational though not perfect and over/under inclusive.  Marriage laws use hetero/gay status of the couple as a proxy for parentage.  Over/under inclusive but rational.

                      •  More than rationality is required (1+ / 0-)
                        Recommended by:

                        when dealing with classes of people, such as homosexuals.  If you have a problem with that, take it up with the court, since it already ruled against you.

                        •  My point is that not even CA Sup Ct (0+ / 0-)

                          found that rational basis review would invalidate opposite sex marriage only. And that is the difference between anti-miscegenation laws and bans on gay marriage.

                          •  And that was because (2+ / 0-)
                            Recommended by:
                            Samer, CajunBoyLgb

                            rational basis review was irrelevant to the subject.  And that's because they deployed a different standard of review.

                          •  That still does not change the (0+ / 0-)

                            answe to the question.  Anti-miscegenation laws do not survive even the rational basis review.  Anti-gay marriage laws do.

                          •  Antimiscegenation was struck down in Loving v. (1+ / 0-)
                            Recommended by:

                            Virginia under strict scrutiny, I thought, not rationality review.

                          •  Grrr. The point is they survive NEITHER (0+ / 0-)

                            while anti-gay marriage laws survive RBR but not SSR.

                          •  Nonsense. (1+ / 0-)
                            Recommended by:

                            Why do antimiscegenation laws fail RR? I'm sure you could come up with some research that suggests that interracial marriages are less likely to last, or subject the children of the marriage to a higher amount of prejudice, etc.

                            EVERYTHING survives rationality review except in animus cases. And one of the three animus cases was about gay people.

                          •  I cannot see rational (0+ / 0-)

                            defense to an antimiscegenation law. And not everything survives rational basis.  See Lawrence.

                          •  Lawrence was decided on Due Process grounds. (1+ / 0-)
                            Recommended by:

                            It was only O'Connor's non-binding concurrence that went into EPC, as I remember.

                          •  Due Process still calls (0+ / 0-)

                            for applying some level of scrutiny.  Lawrence applied rational basis.

                          •  As I recall, (1+ / 0-)
                            Recommended by:

                            it judged marriage to be a fundamental right, then did not specify the level of scrutiny but struck the law down anyway.

                            It's not for nothing that con law professors teach that rational review is a free pass much like strict scrutiny is the kiss of death. The three animus cases -- Cleburne, Moreno, and Romer -- are the only three cases where the Court has claimed to apply rational review and then struck down the law anyway.

                          •  Lawrence did not deal (0+ / 0-)

                            with marriage.  And it applied rational basis.  

                            The Texas statute furthers no legitimate state interest

                            That's rational basis review right there.

                          •  You omitted the latter half of that sentence. (0+ / 0-)

                            The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

                            It's not rationality review. If it were, there would have been no reason to spend 60% of the opinion exploring whether private intimacy is a fundamental liberty.

                          •  "Legitimate" is the key word (0+ / 0-)

                            Otherwise they would use "compelling" (strict scrutiny)or "substantial" (intermediate scrutiny).

                          •  No, "rational basis" is the key phrase. (0+ / 0-)

                            And it doesn't appear. In fact, the word "rational" appears nowhere except when discussing Romer v. Evans -- which was one of the three RR cases in which the law was struck down.

                            Look, I don't have time to argue this point forever, so I'll hand it off to Eugene Volokh:

                            Moreover, under the traditional rational basis test, the law in Lawrence would be upheld as applied, simply as a public health measure: A ban on homosexual anal sex would be rationally related to the eminently legitimate interest in preventing sexually transmitted diseases. There is at least credible evidence (that's all the rational basis test requires) that such sex is more dangerous than other forms of sex. That the law is potentially overinclusive in that it also applies to oral sex (including oral sex among lesbians, which as I understand it is really quite safe) and to sex using condoms is irrelevant, since such overinclusiveness is generally not unconstitutional under the rational basis test (and at most it would require the law to be struck down as to oral sex). That the law is potentially underinclusive in that it excludes unprotected heterosexual genital sex is also generally not unconstitutional under the rational basis test (especially since a legislature might reasonably conclude that such sex is, under current facts, less dangerous per incident than homosexual anal sex). And the existence of less restrictive alternatives -- such as a condom requirement -- would also not invalidate the law under the rational basis test (in part because such alternatives may themselves be not as effective as a total ban, partly because condoms aren't perfect and partly because such a law would be even harder to enforce than a total ban). Finally, the fact that preventing disease may not have been the actual purpose of the law is generally irrelevant under the rational basis test; it's enough for the law to be rationally related

                                So the Court upheld a law even though it would have passed muster under the rational basis test. Moreover, as you can tell from this description of the rational basis test, rights that are subject to protection only under a rational basis test aren't really meaningfully "rights" at all. You can say "You have the constitutional right to ingest anything into your body that you like, unless the government has a rational basis for restricting that," but it doesn't mean much, since under the rational basis test the government can impose pretty much whatever restrictions it pleases. In reality, you don't actually have such a constitutional right. And that's even true if the test were a so-called "rational basis with teeth" or "active rational basis" test, which the Court has at times used in some Equal Protection Clause cases (e.g., City of Cleburne v. Cleburne Living Center, Romer v. Evans): A right subject to even "active rational basis test" scrutiny isn't even a right, because the government would be free to pretty much abolish it almost at will.

                                Thus, when the Court says that laws restricting sexual conduct "seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals," I don't think it means "within the liberty of persons to choose without being punished, unless the government has a rational basis to punish them." When the Court says that "[petitioners'] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter," it doesn't mean that they lack the "full right," and "the government may . . . enter" that "realm of personal liberty" whenever it has a rational basis for doing so. And when the Court goes on to say that "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," I don't think the reference to "legitimate state interest" means that any rational relationship to a legitimate state interest is enough to restrict the "full right." Rather, only "legitimate state interests" that are strong enough to "justify . . . intrusion into the personal and private life of the individual" would suffice.

                          •  I know it has been an (0+ / 0-)

                            ongoing debate in academia.  But the consensus is that sexual orientation is not entitled to heightened scrutiny and is in fact reviewed under rational basis.  Although it is inescapable that this is a more searching scrutiny than traditional "rational basis."  So some started calling it "rational basis with teeth."

                          •  No one ever tested your claim (0+ / 0-)

                            before either the U.S. Supreme Court or the California Supreme Court.

                            Either way.

                            You can claim that anti-miscegination laws fail a reasonable standard test, but there are no court cases to support your argument.

                      •  There is no comparison (1+ / 0-)
                        Recommended by:

                        Between medicare and access to marriage.

                        Marriage doesn't carry with it any hand-out by the Government, but rather a unique bundle of rights, privledges, and immunities.  

                        To bar two people of the same sex from marrying is no different than barring them from forming an LLC or jointly purchasing a home.  It's an unjustifiable restriction of the right to contract.

                        A better comparison would be the attempt to pass an ammendment barring women from forming a Business without a male investor, under the supposedly "rational" case that men are more likely to run a successfull business, and that the purpose of allowing people to register a business is to facilitate economic success.

                  •  Except... (2+ / 0-)
                    Recommended by:
                    DaleA, Predictor

                    ...I take issue with the rationale that marriage benefits should only go to the couples more likely to have children. There is no requirement in marriages to raise children. And really, marriage is not solely for procreating and raising children. It also involves hospital visitation, probate, and a host of other factors.

                    And on those issues, denying same sex couples the same privileges is discriminatory.

                    As far as Medicare, there is no enumerated right to government sponsored healthcare, the way that the Supreme Court stated that there is a fundamental right to marriage. And furthermore, seniors have paid for that privilege, through payroll deductions etc. You can therefore make the same case that as taxpayers, same sex couples should be entitled to the same rights as other taxpayers.

                    (1) D.I.E.B.O.L.D.: Decisive In Elections By Ousting Liberal Democrats.
                    (2) R.A.T.S.: Roberts, Alito, Thomas, Scalia.
                    (3) -8.75, -8.10

                    by Archangel on Wed Dec 03, 2008 at 02:17:10 PM PST

                    [ Parent ]

                  •  As a practical matter, (0+ / 0-)

                    ANY law can be defended in the framework of rationality review. To my knowledge, no laws at all have been struck down under the federal constitution on pure rationality review except arguably the three animus cases -- and it's hard to see how a ban on gay marriage is anything but animus. In fact, one of the three animus cases is Romer v. Evans, which was about gays.

                    The reason antimiscegenation laws could be seen as different is because race is the favored child of the Fourteenth Amendment thanks to the political background in which it was ratified.

              •  wrong. (0+ / 0-)

                the question that the court will consider this Spring is whether Prop 8 will or will not become part of the Constitution.

                And read the decision if you have any confusion about whether marriage to the person of your choosing is a fundamental right, and whether LGBT citizens are a suspect class.

                Here it is:

              •  It's not legally a part of the Constitution of (0+ / 0-)

                the State of California, and it certainly is no part of the Constitution of the United States of America.

                The California Supreme Court has never ruled one way or another as to whether or not denying equal access to marriage contracts regardless of gender could stand the rational basis test.

  •  I'll tell you who's next (31+ / 0-)

    single people. Already in some places it's illegal for an unmarried person to adopt or even foster. These rules are often used to discriminate against gays, but the collateral damage of straight singles getting caught too is a bonus to the fundamentalists. Arkansas is an example - singles who cohabitate with someone else can't adopt. Well, a lot of singles cohabitate before marriage - in fact most people do live together before marriage these days. Others prefer not to get married for whatever reason. Single people are reviled by the religious right for our refusal to marry the first caveman that wanders by our door - and, perhaps, for defining fulfillment in life as more than marital procreation.

  •  Looks good. Hard to argue against (8+ / 0-)

    What is the opposition going to say.

    "Uh the constitution does not give rights to everyone."

    "Of course rights can be taken away, especially from a minority group"

    "It is not that a big change to say that there is not equality under the constitution"

    I will be watching for reports of this case and cases like them. Good luck. Work hard.

  •  I find it interesting that (3+ / 0-)
    Recommended by:
    burrow owl, VClib, kayak58

    your argument is that a bare majority could grant the rights in the California Constitution, but apparently can't change their mind thereafter.  That simply is nonsensical and unsupported by any provision of the California Constitution.  

    The Constitution when it was written was subject to ratification by the majority.  The rights therein are only those that majority (bare or otherwise) agreed to.  These are not the rights that were decreed from on high.  So if teh majority could promulgate those rights, it could also withdraw them.

    Second, nothing in the California Constitution requires a special process for changing "fundamental" (as opposed to some other) Constitutional rights.  The amendment process that reenacted the death penalty in California is a pretty good example.  

    Third, this argument has been rejected in all courts in all states where a similar amendment/revision process exists.  And the rejection relied on California law and judicial rulings.  

    You are essentially arguing that the Equal Protection Clause of the Claifornia Constitution is unamendable.  While I agree that it SHOULDN'T have been amended, I can find no support for the proposition that it CANNOT be.    

    •  it's not unamendable (3+ / 0-)
      Recommended by:
      seaprog, TokenLiberal, JesseCW

      its just that it requires a vote by the legislature as well as a popular vote, which is also the method by which the constitution was ratified to begin with.

      •  First of all, (1+ / 0-)
        Recommended by:
        burrow owl

        that is not the argument.  The argument is that because this is a "fundamental" right, it cannot be withdrawn.  But even if your reading were correct, where in the California Constitution do you find a provision that all amendments to the EPC are automatically revisions?!

        •  no, it's not (9+ / 0-)

          go back and read the diary.

          In our case, we’re arguing that Proposition 8 is invalid because it calls for such an immense change in the California Constitution that it must be handled as a revision, rather than through an amendment.

          And I'd agree with the ACLU, that anything which changes the EPC is a major change to the structure of our democracy.

          A person may not be deprived of life, liberty, or
          property without due process of law or denied equal protection of the laws except if they're gay

          •  Well, I am not arguing (1+ / 0-)
            Recommended by:
            burrow owl

            that it is a good policy.  But nothing in the California Constitution supports the argument that all changes to EPC are automatically revisions.  Why just to EPC?  Why not also to C&U Clause?

            •  C&U clause? (0+ / 0-)

              which one is that again?

            •  Let's Try This Then... (2+ / 0-)
              Recommended by:
              Predictor, JesseCW

              This particular amendment doesn't DIRECTLY nullify the EPC. But, in its exercise, an exception must be assumed to exist in the EPC to withdraw equal rights for a suspect class of law-abiding California citizens. That is, equal rights for ALL except Teh Gay and Teh Lesbos. Separate AND unequal. Yet the EPC guarantees equal protection. And equal access to the rights and responsibilities enumerated in the CA Constitution and the laws of the State of California. Nothing about "but not for Teh Gay and Teh Lesbos". So there IS an implicit revision to the EPC.

              The inherent contradiction is obvious to anyone but the willingly obtuse or the bigoted.

              I guess we'll be in the back of the bus as usual, until you throw us under the wheels-- as usual.

              by CajunBoyLgb on Wed Dec 03, 2008 at 01:36:20 PM PST

              [ Parent ]

            •  Some distinctions (6+ / 0-)
              1. Lack of inhibitory feedback: Every voter could be subject to the death penalty [1], but many voters will never want to enter into a same-sex marriage. Thus, there's always some inhibitory feedback -- governed by self-interest -- in changes to the CU clause, while there's often none in changes to the EP clause, particularly with this change. This kind of inhibitory feedback is important in maintaining some kind of balance between majority power and minority rights.
              1. Modifications to the EP clause are more basic to governmental structure than are modifications to the CU clause. Equal-protection concepts underlie everything judges and juries do: from stare decisis (the precedent system), to the detection and prevention of bias, to the broader concepts of due process (everyone is "due" substantially-similar "process"), to even our legal treatment of speech (content-neutrality). Redefining the EP clause implicitly redefines a core concept underlying our legal system.
              1. There's no logical limit to majority-plus-one modifications of the EP clause. This is the slippery-slope argument that the diarist raised. As other posters noted, if we accept Prop. 8 as a valid amendment, nothing prevents a majority of California voters from adding any number of other exceptions to the EP clause, such as ones disadvantaging single people, people between the ages of 35 and 45, people living in certain towns, or even people of a certain race. BTW, it doesn't matter, for purposes of California's Constitution, that some of these discriminations might (or might not) violate the federal EP clause.

              [1] Yes, it's unlikely that any individual voter will ever be subject to the death penalty, and each voter has a great deal of control over her likelihood of being so subject, but innocent people do -- not infrequently -- end up on Death Row.

            •  Why just to EPC? Because the whole point of EPC (6+ / 0-)

              is to protect discrete and insular minorities against the tyranny of the majority. It has no other function. To allow a bare majority of the electorate to rescind the equal protection of a minority is to read the EPC out of the Constitution altogether. And that requires a revision.

              •  Exactly (1+ / 0-)
                Recommended by:

                The framers knew that most bad laws would eventually fall because transient majorities would shift over time making it likely the oppressed group will eventually gain power and get rid of the law oppressing them. That's how they saw the political process and how it is supposed to work, but the Equal Protection clause is a recognition that there are discrete and "insular minorities" which will never attain that level of power through the political process. This is the lineage begun under the Footnote Four rationale in Carolene Products.

                There are 10 kind of people in the world: Those who understand binary and those who don't.

                by craigkg on Wed Dec 03, 2008 at 04:08:34 PM PST

                [ Parent ]

          •  Is a marriage license property? (2+ / 0-)
            Recommended by:
            ogre, DaleA

            Or the benefits associated with that status? A bit of a stretch, perhaps, but if the argument can be made, then you now have gay people "deprived of property" without due process of law.

            It is not the business of the state to help its citizens get into heaven, nor to save them from hell.

            by DanK Is Back on Wed Dec 03, 2008 at 01:33:23 PM PST

            [ Parent ]

            •  the benefits of marriage include the right of (5+ / 0-)

              inheritance so yes this deprives gay people of property imho ymmv

              •  adult adoption and other belt/suspender tactics (0+ / 0-)

                It's been a few years, but I recall the estate planning and family law tactics WRT same sex couples was to adopt each other.  Now, that may be a way to achieve certain goals under applicable laws regarding property rights and family relationships.

                But even the necessity of these devices is bullshit.  

                Make our courts grow a pair and declare that all constitutional rights, especially equal protection, be determined expansively.  Any other approach and any bill of rights (federal or state) necessarily includes implied wiggle-words like "except where provided otherwise."  

                Again, bullshit is the first word that comes to mind.  

            •  I think it is a contract (2+ / 0-)
              Recommended by:
              DaleA, ibonewits

              So Prop 8, to the extent that it affects marriages already performed may "impair the obligation of contacts" in violation of the federal Constitution.  But it only goes to the marriages taht already exist.

              •  Upholding Prop 8 but not invalidating marriages (2+ / 0-)
                Recommended by:
                DaleA, Predictor

                would create a huge legal and logistical nightmare from the standpoint of divorce proceedings.

                Suppose you married your (same sex) partner while that was legal. Then Prop 8 was passed and upheld. Now the two of you want a divorce. But Article 1 Section 7.5 of the State Constitution (that's the current citation) says that only a marriage between a man and a woman..." and so forth. So how could a court grant you a divorce when it doesn't recognize your marriage?

                Overall the court will avoid a great deal of trouble by simply striking Prop 8. Much simpler.

                •  I don't think it would be THAT much of (0+ / 0-)

                  a problem.

                  There is precedent for this sort of thing.  When people of close relation got married and the state subsequently banned such marriages (think cousins) those who were already married remained such and could access divorce and other proceedings.

                  •  Well it was worth a shot anyway (2+ / 0-)
                    Recommended by:
                    Predictor, cgirard

                    I assume you are an attorney, or a legal scholar of some sort whereas I'm a real estate appraiser with a BA in Philosophy. So I know just enough to get me into trouble, but not enough to get me out of trouble.

                    •  My (lay) understanding is that (0+ / 0-)

                      people have fretted about this sort of thing when Canada got marriage equality, but it never really presented much of a problem. Courts had no problem divorcing gay couples like any other couples since no one seems to care when it happens. I guess evangelicals have no problem with gay families collapsing, only with them starting...

                      •  Oh I think you misunderstood my point (0+ / 0-)

                        Which apparently wasn't all that impressive anyway.

                        I hypothesized that if the court didn't strike down Prop 8 but also didn't invalidate the marriages that had been contracted before Prop 8 passed, perhaps there would be a problem should any of the lucky 18,000 couples decided later on to get divorced because, ya know, only hetero marriages are recognized so we can't give you a divorce because...anyway, that fella up there shot my argument all to hell, it seems.

                        I hate to say this but if I were involved in litigation, I sure wouldn't want him to be the opposing attorney. He's too good and in fact I find his arguments, while depressing, entirely too plausible to ignore.

                        •  No, I got your point. (0+ / 0-)

                          U.S. states had no problem going through divorce proceedings with gay couples who married in Canada even though their marriages were not recognized in the state.

                          Don't be too impressed with him. He's dead wrong about a number of things, most obviously his assertion that antimiscegenation laws would not have survived rational review.

                          The ACLU knows what it's doing, and this amendment/revision argument is a really good argument. It's all the other arguments here on dkos, among people who have never been to law school, that are easy to demolish. The most common misconceptions are (1) that Prop 8 is invalid because it conflicts with a CA Supreme Court ruling (which is a categorical error) and (2) that we could pass a CA constitutional amendment to mess with the LDS Church (we couldn't, at least not an obvious one, because of the US Constitution). There are others too -- they're easy to shoot down for someone who's familiar with the law, but the ACLU's argument is a decent one. Will it work? Who knows; I'd guess not, but the politics of the situation are so interesting that it's more about reading the mindset of seven California justices than about legal reasoning.

                          •  well, we COULD pass an ammendment to mess (0+ / 0-)

                            with the LDS.

                            They would just have to rely on "activist judges" to block it from taking effect.

                            It would be funny as hell, but it's not worth the cost of getting the signatures.

              •  Nope (3+ / 0-)
                Recommended by:
                Drgrishka1, DC Scott, ibonewits

                See Maynard v Hill, 125 US 190 (1888):

                Assuming that the prohibition of the federal constitution against the impairment of contracts by state legislation applies equally, as would seem to be the opinion of the supreme court of the territory, to legislation by territorial legislatures, we are clear that marriage is not a contract within the meaning of the prohibition. (emphasis added)

                There are 10 kind of people in the world: Those who understand binary and those who don't.

                by craigkg on Wed Dec 03, 2008 at 02:10:00 PM PST

                [ Parent ]

    •  No one's "rights" should be decided by (2+ / 0-)
      Recommended by:
      Timbuk3, AmericanRiverCanyon

      a popular vote.  

      It's the protection, stupid.  That's the whole point of Constitutions.

      A jackass can kick down a barn but it takes a carpenter to build one.--Sam Rayburn (D-TX)

      by Ice Blue on Wed Dec 03, 2008 at 01:43:57 PM PST

      [ Parent ]

      •  That is a bizarre statement (0+ / 0-)

        The only reason there are ANY rights (at least beyond the federal ones) in California is precisely BECAUSE the people of California enacted those rights via a popular vote.  

        •  Not really (9+ / 0-)

          See the Supreme Court's ruling in West Virginia Board of Education v Barnette:

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

          Other decisions support this claim. The vote on an initiative simply does not rise to the level of importance attached to the establishment and enactment of a constitution. The very purpose of constitutionalism is to restrain both the democratic and republican (little "d" and little "r" aspects of our government, and  to define and establish protections against what can only fairly be described as lynch mob mentality sometimes expressed by the actions of democracy (mob of the people) and republicanism (mob elected by the people).

          There are 10 kind of people in the world: Those who understand binary and those who don't.

          by craigkg on Wed Dec 03, 2008 at 02:15:53 PM PST

          [ Parent ]

          •  you are citing a federal Supreme Court's (0+ / 0-)

            opinion on a federal Constitutional issue in support of an argument on state Constitution in front of a State Supreme Court?!  Not convincing.

            Unlike the federal Constitution with its onerous amendment process, the California Constitution was designed to be easily amendable.

            •  The principle still applies (4+ / 0-)
              Recommended by:
              DaleA, lotlizard, Ice Blue, JesseCW

              There's that whole incorporation doctrine of the 14th Amendment to deal with. See for example Bd of Regents of Univ of Wisconsin v Southworth and Sante Fe Ind School District v Doe for recent application of the principle. It doesn't matter that its a state constitution. The Federal Constitution sets a benchmark of protections that the states cannot go below. They are free to grant greater freedom but not less. Californians can no more vote whether to summarily execute all blacks than they can vote whether gays have the right to marry. Such rights"depend on the outcome of no elections."

              There are 10 kind of people in the world: Those who understand binary and those who don't.

              by craigkg on Wed Dec 03, 2008 at 02:45:15 PM PST

              [ Parent ]

              •  Again, you are confusing (0+ / 0-)

                federal rights under federal Constitution with state rights under state Constitution.

                You think that the federal Constitution guarantees a right to gay marriage?  Try it out in federal courts, see how far that will take you.

                •  We'll try it after President Obama... (4+ / 0-)

                  ... replaces Scalia and one or two of your other friends on the SCOTUS.

                  We are the change we've been waiting for.

                  by MJB on Wed Dec 03, 2008 at 03:03:41 PM PST

                  [ Parent ]

                  •  Scalia is not going anywhere. (0+ / 0-)

                    Neither is anyone else for the foreseeable future.  Even Stevens is unlikely to retire before 2011.

                    •  Stevens is 88. Scalia is 72 and overweight. (0+ / 0-)

                      Roberts has had two seizures. And I keep hearing ominous rumblings regarding Ginsberg's health, though I don't know what their basis is.

                      You seem very certain about a great number of things that no one should be certain about.

                      •  Stevens has pretty much made it (0+ / 0-)

                        clear that he intends to die in his chair.  And he is pretty healthy.  And he wants to break Douglas' and Holmes' records.  Scalia will not leave under a Democratic administration.

                        •  Scalia could have a massive heart attack tomorrow (0+ / 0-)

                          and drop dead unexpectedly. People rarely give four years' warning before dying.

                          •  So can Obama. Or anyone else (0+ / 0-)

                            But Scalia is unlikely to leave anytime soon.  Certainly not during Obama presidency.

                          •  Scalia is 72 and obese. Obama is in his (0+ / 0-)

                            forties and is in great physical shape. If you can't distinguish between the two, you're being disingenuous.

                            "Leave" does not necessarily mean retire. Rehnquist certainly held onto the gavel for all he was worth, but humans are mortal, and four years is a long time. It's rare that you can see a person's death coming four years in advance. As far as the public knew, Rehnquist wasn't terminally ill four years before he died. You have to go by basic demographic information: age, weight, oncological history and so on. Scalia, Stevens, and Ginsberg are all very likely near the end of their lives. The statistics also aren't optimistic about someone who has had two serious seizures, so it's also really anyone's guess what's going on with Roberts.

                          •  Given that Stevens is 88 (0+ / 0-)

                            and Scalia is only 72, that means Scalia has another good 15-20 years left in him.  It's not like the work is very taxing.  

                            As for heart attacks, some Olympinas in their 20s fell and died on the spot.  I bet they were in better shape than either Scalia or Obama.  

                            You can of course hold on to your morbid hopes, but I am willing to wager $100 that Obama will not be replacing either Roberts or Scalia or likely anyone in his 1st term.  To the extent he will replace anyone, it will be from the liberal wing.

                    •  Stevens is almost certainly gone (0+ / 0-)

                      in the next four years.

                      Any actuarial table will tell you that.

                •  Pro-8 not a slam-dunk under federal constitution (0+ / 0-)

                  While Lawrence v. Texas, 539 U.S. 558 (2003), , formally overturned Texas's antigay sodomy statute on substantive due process grounds and not EP grounds, the underlying analysis is quite similar. As the Court noted, "Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests."

                  And 5 of the Lawrence majority are still on the Court.

                  •  Except Lawrence noted that (0+ / 0-)

                    it's logic does not extend to gay marriage.  Slip op. at 18.

                    •  I don't see that in the Court's opinion (1+ / 0-)
                      Recommended by:
                      DC Scott

                      It appears to be your inference from something in O'Connor's concurrence. I don't have the slip opinion, so perhaps you can cite to the U.S. Reports.

                    •  Privacy is no shelter (0+ / 0-)

                      Lawrence doesn't help because it speaks to personal privacy; the EP clause is not implicated in that case.  That doesn't mean that the argument can't be made, but as a practical matter, the justices will not hesitate to rewrite the Constitution in their own image because they are working from a clean slate.

                      Ours is a dead Constitution in theory, but a living one in practice.

                      •  Well, EP was implicated (2+ / 0-)
                        Recommended by:
                        DaleA, lotlizard

                        But only in O'Connor's concurrence. Indeed her concurrence is the first opinion to really explicitly try to lay out a mode of Equal Protection jurisprudence the Court has used for years, but never really explained: what has been called by some the anti-caste principle. What I'm refering to is O'Connors statement:

                        We have consistently held, however, that some objectives, such as "a bare ... desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

                        Lawrence was indeed a Due Process case because Bowers v Hardwick had to go. Despite Bowers having been a Due Process case as well, it had become a malignant cancer in Equal Protection jurisprudence. All any court wanting to rule against gays had to do was say "It is permissible to discriminate against gays because the activity that defines them can be made criminal. Bowers v Hardwick." No deeper analysis necessary. And that was unacceptable. Romer was supposed to even the playing field, but the wingnuts simply ignored Romer and that is what lead the Court to removing the Bowers case from the arsenal of the anti-gay crowd.

                        There are 10 kind of people in the world: Those who understand binary and those who don't.

                        by craigkg on Wed Dec 03, 2008 at 03:54:57 PM PST

                        [ Parent ]

                      •  Actually, there is absolutely a privacy question (0+ / 0-)

                        although it hasn't been raised.

                        What business is it of the Government to inquire as to our gender when we request access to a civil contract, and who shall determine what ones gender is?

                        After all, any two "men" in California can be legally married if one of them believes "himself" to be female and legally changes "his" gender.

                    •  Majority sop to Scalia's homophobia. (3+ / 0-)
                      Recommended by:
                      DaleA, lotlizard, JesseCW

                      Every now and then, I need to refresh my memory of Scalia's vicious anti-gay dissent and unequivocal 2003 clarion call to ban homosexual marriage coast to coast that ensured GW Bush's 2004 re-election.  Here you go, just for fun.  Who says the Court doesn't read the Wall Street Journal and vice-versa?

                      At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid. Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

                      HERE (emphasis supplied).  Quite the guy, that Nino.

                      "Lawyers, I suppose, were children once." To Kill A Mockingbird

                      by DC Scott on Wed Dec 03, 2008 at 03:38:41 PM PST

                      [ Parent ]

                  •  Federal Courts (0+ / 0-)

                    won't be deciding the case, and the ACLU is not advancing arguments based on the Federal Constitution or Federal Law.

                •  No, using the federal minimum standards (5+ / 0-)
                  Recommended by:
                  DaleA, Ice Blue, Pender, JesseCW, chiefscribe

                  You think that the federal Constitution guarantees a right to gay marriage?

                  Not anymore than it guarantees a right to interracial marriage, deadbeat dad marriage, penal marriage, interfaith marriage, red-and-yellow polka dots on green marriage, etc. It does protect the fundamental right to marry the mutually consenting adult of your choosing just as it protects our right to privacy in all of the most important intimate and personal choices a person could make in their lifetime, such as the choice of whom to marry.  See generally Planned Parenthood of SE Pa vs Casey:

                  It is conventional constitutional doctrine that, where reasonable people disagree, the government can adopt one position or the other. That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Thus, while some people might disagree about whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled, we have ruled that a State may not compel or enforce one view or the other. See West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943); Texas v. Johnson, 491 U.S. 397 (1989).

                  Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Our precedents "have respected the private realm of family life which the state cannot enter." These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

                  The State of California isn't just obligated, it is required under our Federal Constitution to uphold the fundamental rights of all individuals. California can pass an amendment re-enslaving African-Americans. It only takes a majority. Are the California courts obligated to enforce such an amendment. You think the California Supreme Court would uphold that?

                  This is no different. This is exempting a discernible group of individuals from the political process, removing a right to equal protection under the law and restricting a fundamental human right the Court has affirmed on numerous occasions. Colorado tried to do the same in the early 90's and got slapped down. Read Romer v Evans:

                  The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.

                  Prop 8 does both. It burdens the gays ability to marriage, a fundamental right. It also interferes with the California Supreme Court's finding that sexual orientation is a suspect classification and gays and lesbians are a suspect class.

                  There are 10 kind of people in the world: Those who understand binary and those who don't.

                  by craigkg on Wed Dec 03, 2008 at 03:39:08 PM PST

                  [ Parent ]

                  •  Nope (0+ / 0-)

                    The US Supreme Court has a precedent on gay marriage.  And the precedent is that there is no such federal constitutional right.  Baker v. Nelson.

                    •  The Court didn't hear Baker (1+ / 0-)
                      Recommended by:

                      It dismissed the appeal without hearing the case. Moreover, any precedential value it might have had back in the early 70's has been vitiated by the long mountain range of contrary precedent in the right to privacy. See Roe v Wade, Zablocki v Redhail, Tunrer v Safley, Planned Parenthood of SE PA vs Casey, hell even the fundamental rights unfriendly Washington v Glucksberg!

                      There are 10 kind of people in the world: Those who understand binary and those who don't.

                      by craigkg on Wed Dec 03, 2008 at 08:17:16 PM PST

                      [ Parent ]

                      •  Since it was a (0+ / 0-)

                        dismissal "for want of a substantial federal question" it is adjudication on the merits and is binding precedent (unlike denial of cert).  Unless and until Supreme Court says otherwise, Baker is binding precedent on all lower courts insofar as the federal constitution is concerned.  (Even California Supremes acknowledged that).

            •  Ah, but -- (0+ / 0-)

              relevant to craigkg's claim that some rights are not dependent upon popular vote.

              "If they can get you asking the wrong questions, they don't have to worry about the answers" -- Thomas Pynchon

              by Cassiodorus on Wed Dec 03, 2008 at 02:55:48 PM PST

              [ Parent ]

              •  No it isn't relevenat (1+ / 0-)
                Recommended by:
                burrow owl

                Because while in one document they may not be, in another they may well be.  Citations as to how the federal constitution treats popular will tells me nothing about how Cali Constitution treats it.

                •  Na. State Supreme Courts, including CA's... (1+ / 0-)
                  Recommended by:

                  ...very often have used the federal Supreme Court's interpretations of federal provisions in interpreting analogous state provisions (e.g., freedom of speech).

                  •  Yes, but the mode of amending CA Constitution (1+ / 0-)
                    Recommended by:
                    burrow owl

                    is not remotely analogous to the mode of amending the federal one.

                    •  If some rights do not depend upon popular vote (0+ / 0-)

                      in the US, then they also don't depend upon popular vote in CA.  QED.

                      "It all makes perfect sense/ Expressed in dollars and cents/ Pounds, shillings and pence" -- global anthem, from Roger Waters' song "Perfect Sense"

                      by Cassiodorus on Wed Dec 03, 2008 at 03:31:26 PM PST

                      [ Parent ]

                      •  True, but (1+ / 0-)
                        Recommended by:

                        in order to get there, you have to run the gauntlet of the federal courts, and it eventually ends up on Scalia's desk.  Scalia and Thomas talk a good game when it comes to originalism, but they don't let a little thing like the law get in the way of doing what they want to do.

                      •  But you are assuming that (0+ / 0-)

                        the Federal Constitution prohibits popular vote on gay marriage.  No federal court has agreed with that statement.

                        •  Wrong assumption (2+ / 0-)
                          Recommended by:
                          Ice Blue, Cassiodorus

                          The question this raises is not whether Californians can vote to ban gay marriage, but rather can the people of any state vote to deny the right to marriage to any minority. Can Iowans vote and ban interracial marriage? Can Texans ban Hispanics from marrying? Can Wyoming ban Democrats from marrying? Can Alabama ban left-handed people from marrying each other? Can Florida vote to require that Jews must marry Christians? These are all the same question: Can the fundamental right to choose your spouse in marriage be limited by the state in manner that is unsupported by a narrowly tailored compelling state interest?

                          There are 10 kind of people in the world: Those who understand binary and those who don't.

                          by craigkg on Wed Dec 03, 2008 at 04:00:40 PM PST

                          [ Parent ]

                          •  Well, no federal court held that (0+ / 0-)

                            they cannot vote to deny marriage rights to gays.  In fact, every federal court that considered the issue ruled that they can.

                            And since in federal law gays are not a suspect class, there is no need to show compelling interest or narrow tailoring.

                          •  Not true (3+ / 0-)
                            Recommended by:
                            DaleA, Cassiodorus, chiefscribe

                            See the district court ruling on Nebraska's gay marriage ban. That district court did rule the ban unconstitutional using Romer. It didn't say federal law required same sex marriage, but it did rule that the Constitution prohibits the Nebraska Amendment just as Romer did. It was overturned by the Appeals Court and the group challenging the ban decided not to take it to the Supreme Court, but a federal court has ruled against these elective bans.

                            There are 10 kind of people in the world: Those who understand binary and those who don't.

                            by craigkg on Wed Dec 03, 2008 at 04:29:24 PM PST

                            [ Parent ]

                          •  Reversed 3-0 which means (0+ / 0-)

                            that that decision was in error, cannot be relied on and did not state the law correctly.

                          •  Not necessarily (2+ / 0-)
                            Recommended by:
                            Ice Blue, Cassiodorus

                            It can also mean that the Courts have been stacked with right wing ideologues hostile to any minority claims of discrimination. The Appeals Courts even ruled in favor of the vehemently anti-gay Cincinnati law after Romer v Evans was handed down despite the law being nearly identical. Appeals Courts can be wrong too. The plaintiffs made a strategic decision not to appeal to the Supreme  Court. Given their argument and the Court's previous ruling in Romer, if the Court took the case, it would have stood a better than even chance of winning, but would have likely generated a backlash.

                            P.S. Don't judge the district court's opinion unless you've read it. Judge Bataillon did a very good job on the opinion laying out not just one, but several avenues of how the ban was unconstitutional.

                            There are 10 kind of people in the world: Those who understand binary and those who don't.

                            by craigkg on Wed Dec 03, 2008 at 04:54:36 PM PST

                            [ Parent ]

                          •  I actually read the opinion (0+ / 0-)

                            back when it was issued.  It seemed to be extraordinarily weak.  Especially the section on Bill of Attainder.  That was just nonsense.

                            In any event, given our hierarchial system of courts, since the appellate courts reversed Judge Batallion, it follows that his opinion was legally erroenous, cannot serve as precedent, and did not state the law correctly.

                          •  The Bill of Attainder section (0+ / 0-)

                            was relied on by the Supreme Court, though not explicitly, in Romer. The Romer opinion closely mirrors the line of thinking of an amicus brief in Romer filed by several very highly regarded law professors (Larry Tribe, Kathleen Sullivan, John Hart Ely and others). The principle is there, but the Court didn't expressly attribute the principle to the Bill of Attainder clause.

                            There are 10 kind of people in the world: Those who understand binary and those who don't.

                            by craigkg on Wed Dec 03, 2008 at 06:10:57 PM PST

                            [ Parent ]

                          •  Huh?! (0+ / 0-)

                            Romer was handed down almost a decade before this opinion.  How exactly was judge Battalion's opinion relied on by the Supreme Court?!

                          •  Not Battalion's opinion, the amicus brief (0+ / 0-)

                            When the Romer case made it to the Supreme Court, a group of several very highly regarded law professors (Tribe, Ely, Sullivan are the ones I can remember off the top of my head) filed an amicus brief with the Supreme Court in support of striking down Amendment 2. The jist of the brief was that Amendment 2 basically repealed the equal protection clause for gay and lesbian Coloradans denying them protections of any kind whatsoever unless the Colorado Constitution was amended further. While technically a bill of attainder comes from the legislature, Amendment 2 essentially served the same function, inflicting real harm to the civil rights of gay and lesbian Coloradans. Tribe, et al argued that the Constitution prohibits this sort of law under the Attainder Clause. The Court picked up on this line of thinking, but they analyzed it under the Equal Protection Clause (it fits into both really).  But the Court's opinion in Romer is functionally equivalent to the Tribe, et al amicus brief. Battalion's went further in picking up on it and made explicit mention of it in his ruling, probably because it was expressly argued by the plaintiffs. In doing a quick look at the opinion again, it looks like Battalion also picked up on a law review article by Akhil Reed Amar on this. I found Amar's article online here.

                            There are 10 kind of people in the world: Those who understand binary and those who don't.

                            by craigkg on Wed Dec 03, 2008 at 06:47:03 PM PST

                            [ Parent ]

                          •  Except SCOTUS (0+ / 0-)

                            never endorsed the view that this is somehow a Bill of Attainder violation.  Instead, IIRC, they struck Am. 2 down on simple rational basis review.

                    •  But the mode of revising it is not (0+ / 0-)

                      dissimilar to the modes of amendment of the federal constitution, and very likely similar concerns underlie the distinction between revision and amendment. I'd have to examine the CA framers' writings to say much more.

                    •  God you are an idiot (0+ / 0-)

                      This statement is correct but you were inferring the exact opposite elsewhere in this thread.

                      In principle, a constitution should require more than a simple majority to alter.  CA has two methods to altering their constitution.  One for ammending the constitution and one for revising it.  Amending the CA constitution is the lower standard and "is not remotely analogous to amending the federal [constitution]".  Revision is the higher standard.  The ACLU's arguement is that to take away a right guarenteed by the state's equal protection clause requires a revision and not an ammendment.  Thus, requires the higher standard which was not met by prop 8 and therefore is invalid.

                      "It was believed afterward that the man was a lunatic, because there was no sense in what he said." "The War Prayer" by Mark Twain

                      by Quanta on Thu Dec 04, 2008 at 03:57:02 AM PST

                      [ Parent ]

                    •  "Ammendment" also doesn't mean the (0+ / 0-)

                      same thing in California that it does in regard to Constitution of the United States.

                      Why do you willfully refuse to admit that?

                  •  That's not binding though. (0+ / 0-)

                    And that's the only question.

                    We are building a team that is continuously being built. - Sarah Palin

                    by burrow owl on Wed Dec 03, 2008 at 05:58:21 PM PST

                    [ Parent ]

          •  Rights are inherent and inalienable (2+ / 0-)
            Recommended by:
            Ice Blue, Endangered Alaskan Dem

            Governments cannot grant them to you; they can only restrict them.

        •  Not true. (2+ / 0-)
          Recommended by:
          Ice Blue, ibonewits

          Some rights (i.e. freedom of expression, freedom of religion, etc.) are basic human rights that supersede written law, and any laws addressing these rights are merely guaranteeing their protection by the government, not granting them.  This is alluded to in the Ninth Amendment of the US Constitution:

          The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

          •  I agree (1+ / 0-)
            Recommended by:
            Ice Blue

            I think there are rights that supersede even constitutional law, what many term natural rights, and that their mention in the Constitution is a recognition and acknowledgement of the. The rights listed do not owe their existence to their enumeration in the Constitution. The 9th Amendment confirms the Founder's belief in the natural character of these rights, but the the danger is determining what those natural rights are. The danger in not naming them is that they won't be protected. It is very much a paradox the founders struggled with and they felt the 9th, and to a certain extent the 10th, Amendment was the saving grace of the attempt to enumerated these important rights. They well understood that no enumeration could ever be complete and that no extensive attempt at enumeration  would allow the constitution to survive. Our time would be spent on nothing but arguments over whether Right Z should be included or not.

            There are 10 kind of people in the world: Those who understand binary and those who don't.

            by craigkg on Wed Dec 03, 2008 at 02:33:29 PM PST

            [ Parent ]

          •  Not very relevant (1+ / 0-)
            Recommended by:

            to the state Constitutional issues.  If you want to challenge Prop 8 on federal grounds, you can.  (But you will lose).

            Furthermore, even if some rights "supercede" written law, that does not mean that a court that was created by written law is empowered to enforce those rights.

            •  Depends on the framers' intentions (0+ / 0-)

              We know from the Annals that Madison intended the Ninth Amendment as a catch-all amendment.  There is no analogue in the California Constitution (or, at least, of which I am aware).  I'm not sure that art. I, sec. 1 (which mimics its original Massachusetts counterpart, and which can be found in most state constitutions) would be interpreted as protecting a fundamental right to marry.  Prop 8 might be more of a clarification than a revision.

              As for the hopelessness of relying on federal law, this is a function of the fact that federal judges don't even pretend to interpret the law any more.  The better rule is that a judge will only follow so-called binding precedent when it takes him where he already wanted to go in the first place.

            •  Of course it's relevant. (0+ / 0-)

              You said that the only reason that rights exist at the state level is because they were enacted by popular vote - I maintain that some rights are so basic that they cannot rightfully be overturned by government at any level.  I merely cited the Ninth Amendment to show that this philosophy was reflected in the federal constitution.

              As far as a challenge to Prop 8 on federal grounds losing is concerned, if the 14th Amendment is correctly interpreted and applied, such a challenge would be successful:

              No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

              Finally, regarding this point:

              Furthermore, even if some rights "supercede" written law, that does not mean that a court that was created by written law is empowered to enforce those rights.

              The US Constitution does not explicitly state whether or not courts are empowered to enforce natural rights.  However, since it acknowledges the existence of these rights in the Ninth Amendent, it seems logical that any court dealing with constitutional matters would be empowered to enforce natural rights in accordance with its mandate to interpret the Ninth Amendment.

              •  Courts don't have jurisdiction over natural right (0+ / 0-)

                At least, Article III says federal courts don't, and courts say courts don't.  Rather, arguments about what is or is not a natural right are to be made in legislatures or const. conventions and put into un-natural law.

                •  Where does Article III (0+ / 0-)

                  say that federal courts don't have jurisdiction over natural law?  And if courts say that courts don't have jurisdiction over natural rights, then where did they come up with the right to privacy, which isn't explicitly mentioned in the constitution but was applied in at least two landmak cases, Griswold vs. Connecticut and Roe vs. Wade?

                  •  Article III Section 2 (0+ / 0-)

                    The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority

                    Nothing about natural law, which, by definition, is what's not already in a statute, treaty, constitution, etc.

                    Where did they get the right to privacy?  According to the opinions, the consitution.

                    •  But Article III doesn't explicitly state (0+ / 0-)

                      that courts don't have jurisdiction over natural rights.  Of course, it doesn't explicitly state that they do, either.  But the Ninth Amendment refers to natural rights as a check on the power of the government, making the question of defining natural rights a matter of constitutional interpretation.

                      •  the ninth amendment (0+ / 0-)

                        doesn't refer to natural rights, and doesn't say that the federal courts have the power to find them and enforce them.  Rather, it says the enumeration of rights in the federal constitution DOES NOT contain an implication of other rights, merely telling us how to construe the constitution--and instructing us to construe it as limited to enumerated rights.  

                        •  Did you make a typo? (0+ / 0-)

                          The Ninth specifically tells us that our rights are not limited to those enumerated.

                          That's the whole point of it.

                          •  The constitution is limited to enumerated rights. (0+ / 0-)

                            It's that whole federalism thing.  There are rights that are not enumerated in the constitution......something we know to be true, since states grant rights and have powers all of their own, if you read the ninth and tenth as a set.... and the federal consitution is neutral and the federal government is without jurisdiction over them.  It's simply restating the federal constitution as a setting up a government of enumerated powers.

                            Nothing gives a federal constitutional right to unenumerated rights, nothing gives the federal court jurisdiction to determine and enforce unenumerated rights.

                            So you may believe there's a natural right to do something or other, but there's no federal court that will hear the case.  You'd be told to take your argument to Congress to put the natural, unenumerated right in a statute, since federal courts can rule on and enforce statues, or to take it to a state court or legislature.

                            None of this is controversial, by the way.

                •  I must respectfully disagree (1+ / 0-)
                  Recommended by:
                  Big Tex

                  On June 8, 1789, James Madison proposed twelve amendments to the Constitution -- the foundation for our modern Bill of Rights.   However, apart from an explicit protection of the four pillars of freedom -- the soapbox, the ballot box, the jury box, and the ammo box -- he consciously avoided attempting to enumerate rights retained by the people, under the rationale "that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure." 1 Annals of Congress 456 (1789).  His embryonic version of our Ninth Amendment read as follows:

                  The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

                  Id. at 452 (emphasis added).

                  As the Court has the power to enforce the Ninth Amendment, it can enforce what might otherwise be called "natural law."

                  •  The ninth doesn't allow any enforcment at all. (0+ / 0-)

                    Amendment IX

                    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

                    Amendment X

                    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

                    These are simply restatements of the federal government as one of enumerated powers.  It's the exact opposite of a theory that the federal government can find, and enforce, rights based on what a court thinks is natural, since that would be a vast expansion of the powers that the tenth say are reserved to the states and to the people.  For example, because the federal constitution did not require states to provide equal protection of the laws, and because it did not give congress the power to eliminate slavery, no federal court could strike down the state laws allowing it or remove the right to own a slave if state law granted it.

                    •  For every right, there must be a remedy (1+ / 0-)
                      Recommended by:

                      Madison intended that the rest and residue of the portfolio of rights be retained by the people.  How can you enforce a right to privacy or the right to marry without a Bivens-style right to recourse?

                      •  Not a remedy from the federal government. (0+ / 0-)

                        The federal government is a government of enumerated powers.  Asserting a jurisdiction to enforce an unwritten "natural" right is an assertion of an unenumerated power.

                        What the consititution tells you, and what any federal court would tell you, is that you should take your argument about a natural right to Congress; since the court has jurisdiction over statutes, it can hear cases arises out of statutes under Article III.  Or to take your argument to state court or the state legislature.  

                        It's that whole federalism thing, built out of the fact that there's a government of supreme, but enumerated, powers and state governments of inferior, but general, powers.   The ninth and tenth make that clear.

                        •  If the Ninth Amendment (0+ / 0-)

                          guarantees you the enjoyment of certain unenumerated rights, and the government acted in such a way as to infringe upon those rights, then by definition, the incident raises a federal question.  As the federal courts have a plenary statutory jurisdiction over federal questions, they have an obligation to hear such claims.

                          •  Actually, it doesn't guarantee the enjoyment (0+ / 0-)

                            of anything, along with the tenth, makes it plain that, from the constitution, one can't make inferences on either the existence of a right or the power of a state to remove it.  

                            If the ninth did guarantee a right, or forbid states from denying certain rights, you'd have the fourteenth amendment.

                            And I suppose a federal court would hear a claim that there were unenumerated rights that became equal to enumerated rights incorporated via the ninth amendment, but the answer would be, no there aren't.

                          •  The Ninth is only effective wrt the federal govt (0+ / 0-)

                            the Fourteenth corrected the error, and made the BoR a minimum standard as to what a citizen's rights are.

                            And I suppose a federal court would hear a claim that there were unenumerated rights that became equal to enumerated rights incorporated via the ninth amendment, but the answer would be, no there aren't.

                            Have you looked at the legislative history of the Ninth Amendment?  Madison makes it crystal clear that unenumerated rights are the same as enumerated ones.

                          •  That's simply not so. (0+ / 0-)

                            The concept that the ninth is the same as the fourteenth is contrary to language, history, and common sense.  

                            Since you are the first person in history to ever make such a claim you have no citation to any support that suggests that the ninth means something other than what it says, much less that it managed to outlaw race based discrimination some seventy years prior to the civil war, but nobody knew it til today.

                          •  Citation to the legislative history (0+ / 0-)

                            On June 8, 1789, James Madison proposed twelve amendments to the Constitution: the foundation for our modern Bill of Rights.   However, apart from an explicit protection of the four pillars of freedom -- the soapbox, the ballot box, the jury box, and the ammo box -- he consciously avoided attempting to enumerate rights retained by the people, under the rationale "that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure." 1 Annals of Congress 456 (1789).  His embryonic version of our Ninth Amendment read as follows:

                            The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

                            Id. at 452 (emphasis added).

                            The Ninth recognized rights as they pertain to relations with the federal government; the states had their own bills of rights restricting state action.  Colorado's constitution was written prior to the doctrine of incorporation and therefore, it promulgated its own bill of rights.

                            As for the right to own slaves, it was dealt with in the original Constitution: If you were property, you didn't have liberty.  The Thirteenth fixed that problem.

                            The Fourteenth declares what the states cannot do.

                          •  You realize that source supports me, (0+ / 0-)

                            whatever it is.  It confirms that the Ninth just tells you how to read the constitution, not to make a substantive grant of rights or a grant of any  federal power to enforce rights not found in the federal consitution.  In fact, the ninth and tenth read together...with the history you cite....confirms that the ninth and the tenth restated that the federal consitution didn't  negate anything by implication, including state power over its own residents.

                            The Fourteenth declares what the states cannot do.

                            And the ninth does not. That's what makes the fourteenth a grant of rights and not the ninth; a right is the flip coin of a prohibition on state power, that is, a right to not be a slave corresponds to a diminution of state power to enforce slavery.

                            Really, all this is in sources that you can look up for yourself, if common sense and reading doesn't convince you.

                          •  The government doesn't GRANT rights (0+ / 0-)

                            Common sense tells me this, as does the DoI:

                            We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalien- able Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

                            It just doesn't get any clearer than this.

                          •  Those would be the unenumerated rights. (0+ / 0-)

                            It might be common sense, it might even be the declaration of independence, but it's not in the constitution, and the federal government was not empowered to guarantee them.  If it wasn't included in the federal constitution, then it's not so clear, is it, and indeed there was a wide variety of opinion on what were "men", "liberty" and so on that the founders purposely avoided addressing in the federal much so that they included the ninth and tenth amendments to make explicit that when something wasn't addressed, we couldn't take any implications from it.

                            So, your assertion that "it couldn't be any clearer" has to be taken state legislators or courts, and see if they agree on "common sense" and that the rights existed.  While people agree there are rights that exist without being granted by government, they don't agree on what those rights are.  Is there a natural right to life in the embryo?  Is there a natural right to same sex marriage?  The people who say yes to one say no to the other.  That's what happens before the rights are put into a un-natural state of being in the law.

                            None of this is new.  It's not even Wikipedia level analysis.  I commend you to your own study, something you should have done in the first instance.  I'm not running a remedial course.

                          •  That's spectacular nonsense, Counselor (0+ / 0-)

                            Counselor, is it possible for a lawyer to disagree without being disagreeable?  Really, the personal attack was uncalled-for.

                            I can find four SCOTUS justices who see it the way I do.  By way of example:

                            My job is to apply the Constitution. And here’s a useful lesson: You hear people talk all the time about the Bill of Rights. But you should always keep in mind that the Bill of Rights was an afterthought. That’s why it’s made up of what are called amendments. It was not in the original Constitution. The rights in the Bill of Rights were originally assumed as natural rights, and some people at the time thought that writing them into the Constitution was redundant. Read the Declaration of Independence.  We should always start, when we read the Constitution, by reading the Declaration, because it gives us the reasons why the structure of the Constitution was designed the way it was.  And with the Constitution, it was the structure of the government that was supposed to protect our liberty. And what has happened through the years is that the protections afforded by that structure have been dissipated. So my opinions are often about the undermining of those structural protections. [cite]

                            The Constitution is a blueprint for limited government.  Articles I-III define what the federal government may do, and the Bill of Rights articulates what it may not do to achieve that end.  What is indisputably clear from the legislative history (which is controlling here) is that the Ninth Amendment was intended to protect a panoply of substantive and/or procedural rights, under the theory that failure to name them would result in the presumption that they were not retained by the people.

                            Exactly what those inalienable rights are may -- at least at the corners -- be fodder for legitimate debate, but the alternative you suggest is frightening in its scope, for if the government can grant rights, it can also take them away, and the concept of rights itself is obliterated.  What you suggest is that we have only a tenancy at will in liberties.

                          •  Welcome to a constitutional republic. (0+ / 0-)

                            for if the government can grant rights, it can also take them away,

                            That's what the federal constitution was.  An entire reordering of rights and powers.  Rights were given up, and a new federal government was given power over the People.

                            Whether surrendering rights to the federal government was worth it or not, it is, in fact, what happened.  And it could happen some more: as the ninth makes clear, and the power of amendment makes clear, the people retain rights to give up rights.

                            Scared by that?  By the thought that ultimately, the people decided what was in the constitution, what was not, and are still able to make that determination?  I don't know what else to tell you.  I find it more comforting than you thinking you are the one who gets to decide what's fodder for legitimate debate on some undisclosed basis ( and a citation to Hillsdale College, of all the places in the world that you found to actually research.  Doesn't your computer get wikipedia?).  But if you would like a different system, put it up for a vote.  I don't mind.    

                          •  Associate Justice Clarence Thomas is a (0+ / 0-)

                            fairly respectable source on constitutional theory (he represents 4/9ths of the Court), but you won't find him giving interviews to the Huffington Post.  He doesn't do away games. :)

                            The operative phrase you use is "rights were given up."  This vindicates my position, as does the plain language of the Ninth Amendment. Other rights were "retained by the people," and it is a matter of rational constitutional interpretation as to what they were. Remember, it cannot be presumed that any clause in the constitution is intended to be without effect (Marbury v. Madison).

                            When a statute or constitutional provision is ambiguous on its face, where do we go? To the legislative history, of course!  And in that history I dug up, Madison tells exactly what was on his mind when he wrote what eventually became the Ninth Amendment.

                            Of course, we surrender a portion of our portfolio of rights to preserve the others.  But exactly what portion of those rights did we surrender?  The Ninth Amendment answers this question for us.  Yes, the courts are charged with its interpretation, but that is true with respect to any other phrase contained in the Constitution. There are neutral rules of decision, which the conscientious judge is obliged to follow.

                            What makes us a republic, as opposed to a democracy?  Structural limits on the power of the government.  The BoR is a limit on governmental power.  Law defines what that limit is.

                            To be honest, I can't figure out what your theory of constitutional law is.  It seems to me -- and please do correct me if I am wrong here -- that you have adopted the old Soviet model, wherein the almighty State is the source of all rights and blessings.  If you are right, then we have no rights at all, because the majority can take them away on an ad hoc basis at any time and for any reason.  While some governments are organized in that way and under that philosophy (e.g., the PRC), it cannot be said that ours was.

                          •  Well, obviously. (0+ / 0-)

                            To be honest, I can't figure out what your theory of constitutional law is.

                            If you think it's "my theory", then you certainly lack in understanding.  It is what they call "black letter law".  It's not my understanding.  It's the Supreme Court's understanding and the understanding of every respectable source.

                            But exactly what portion of those rights did we surrender?  The Ninth Amendment answers this question for us.

                            No, the ninth (and tenth) amendment begs the question for us, since it doesn't tell us anything at all about what the rights and powers are or are not that the people or states retain, respectively. The answers are found in places other than the federal constitution, for example, political debate.

                            If you are right, then we have no rights at all, because the majority can take them away on an ad hoc basis at any time and for any reason.

                            The federal constitution has in its own text the ability to be amended to take away rights.  Right there, right in it. See, you're confused...your logic is, rights are good, the federal constitution is good, ergo, the federal constitution guarantees rights of any type forever and ever and ever and can never be changed.  You aren't looking at the constitution, you are looking at your own personal ideal and pretending like it's the law.  Sorry to bring you down to earth, but your ideals aren't the law.  But feel free to argue your ideals in what we call the democratic know, the sort of process where the law isn't just what one guy says it is, like Stalin and Mao.

                          •  Not so fast, compadre! (0+ / 0-)

                            (I was going to use "my friend," but John McCain has forever spoiled that phrase.)

                            You: The federal constitution has in its own text the ability to be amended to take away rights.  Right there, right in it.

                            On this, we agree entirely.  But it is not easy to take a fundamental right away.  It can only be done via a constitutional amendment, which requires such a broad consensus that it almost never gets done.

                            You: [T]he federal constitution guarantees rights of any type forever and ever and ever and can never be changed.

                            Again with respect, you're building a house of straw.  It is possible for a super-majority to take rights away, but the hill to be climbed is a daunting one, and if you change the Constitution, you re-write the overall contract.  The Civil War Amendments effectively gutted the Tenth Amendment, radically changing the relationship between the federal government and the individual states.  When something like that happens, all bets are off, as we are essentially interpreting a new document.

                            What I am saying here is that, by virtue of the Ninth Amendment, there is a reservoir or inalienable rights reserved to the people.  Thus by definition, they are untouchable through the enactment of statutory laws (see, Reid v. Covert in re: supremacy of the Constitution).

                            You: No, the ninth (and tenth) amendment begs the question for us, since it doesn't tell us anything at all about what the rights and powers are or are not that the people or states retain, respectively.

                            The legislative history answers that for us, albeit not precisely. Structural protections that Englishmen enjoyed are presumptively available: the writs of habeas corpus and scire facias, the right to private prosecution, and many other rights including the right to marry (Loving) and educate your children as you see fit (Pierce).  And that is hardly the end of the list.  Article I of the Massachusetts Constitution of 1780 states:

                            All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness. [cite]

                            Our Constitution doesn't say anything about the right to acquire property, or to defend our lives and liberties, but it is fair to say that it can be found in the Ninth Amendment, if you really have to look.

                            Article V of that document states:

                            All power residing originally in the people, and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive, or judicial, are the substitutes and agents, and are at all times accountable to them.

                            All power resides in the people, except that which we cede to our agents in order that the rest of our rights will be protected.  This is the premise upon which our Constitution is built: government is limited by its structure.  Our government has only those powers we have delegated to it, and no more.

                            I'm still trying to figure out where we're talking past each other.

              •  A right without a remedy is a contradiction in (1+ / 0-)
                Recommended by:


            •  In all discussions of natural law (0+ / 0-)

              and rights under natural law, that's where it comes up short: nobody has empowered a court to enforce natural law.  All arguments about what is or is not natural should be taken to the legislature, where, if they are so natural that we all recognize them, they can be put in a statute.

              •  Cuz natural law is teh stupid. (0+ / 0-)

                I think NL is one thing, Catholic conservatives another.  It's just a lazy man's way of saying "I think X is good policy."

                We are building a team that is continuously being built. - Sarah Palin

                by burrow owl on Wed Dec 03, 2008 at 05:57:27 PM PST

                [ Parent ]

  •  Because it must be quoted..... (9+ / 0-)

    "In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist;

    And then they came for the trade unionists, And I didn’t speak up because I wasn’t a trade unionist

    And then they came for the Jews, And I didn’t speak up because I wasn’t a Jew;

    And then . . . they came for me . . . And by that time there was no one left to speak up."

    Quick to judge, Quick to anger, Slow to understand; Ignorance and prejudice and fear walk hand in hand. -- Neil Peart

    by JRandomPoster on Wed Dec 03, 2008 at 01:09:16 PM PST

    •  You almost took the words from my mouth.... (1+ / 0-)
      Recommended by:
      Cali Techie

      First they came for the Muslims,
      And I didn't speak up;
      I wasn't a Muslim.

      Then they came for the gays,
      And I didn't speak up;
      I was straight.

      Then they came for the Hispanics,
      And I didn't speak up;
      I was a gringo.

      And then they came for me,
      And there was no one left to speak up.

      Osama has killed his thousands, and Bush his tens of thousands.

      by Sura 109 on Wed Dec 03, 2008 at 09:13:35 PM PST

      [ Parent ]

  •  This is one of the things that scared me (14+ / 0-)

    most about Prop 8 - not only was it wrong, wrong, wrong - but also the fact that there will always be another group who will be a target. And another and another. I was talking to a co-worker on election day and she was planning on voting yes because she said she was just so tired of "them" being so in-your-face. I asked her how "they" had gotten in her face and she had no answer. Then she brought up how pastors/priests/etc. would be forced to marry "them". I explained that that simply wasn't true and that they don't have to marry straight people now if they don't want to. And, of course, I mentioned the who's next matter and why should anyone have any greater or lesser rights than she and I currently enjoy. I'm sure she blithly closed her mind and voted yes anyway, assured in her own small-minded way that she'd never be in danger of someone coming after her.

    Best of luck with the lawsuit.

    •  A great quote from a comment in earlier diary (5+ / 0-)

      regarding oppression by religious people- I think it is applicable in a political sense as well:

      People who believe in Hell require someone to populate it.

      One of the ways many politicians have always risen to power is but creating a public enemy and riding a tide of rhetoric against them. President Andrew Shepard in the American President was right

      He is interested in two things and two things only: making you afraid of it and telling you who's to blame for it. That, ladies and gentlemen, is how you win elections. You gather a group of middle-aged, middle-class, middle-income voters who remember with longing an easier time, and you talk to them about family and American values and character. And wave an old photo of the President's girlfriend and you scream about patriotism and you tell them, she's to blame for their lot in life, and you go on television and you call her a whore.

      There are 10 kind of people in the world: Those who understand binary and those who don't.

      by craigkg on Wed Dec 03, 2008 at 02:23:20 PM PST

      [ Parent ]

  •  I was idly thinking of proposing a ballot (17+ / 0-)

    initiative to prohibit divorced people from marrying. I think much of the logic used to pass Prop 8 holds.

    Traditional marriage certainly does not include 2nd marriages. 2nd marriages are bad for kids. Churches could be forced to marry divorced adults when its against their religion. I certainly don't want my children learning about divorce.

    I don't think anything about prohibiting second marriages conflicts with the US Constitution.

  •  An equal protection clause with exceptions (16+ / 0-)

    is neither equal nor protection.

    Discuss amongst yourselves.

    What does the scouter say about his power level? - It's over NINE THOUSAAAAAAAND!

    by youseeit on Wed Dec 03, 2008 at 01:15:58 PM PST

  •  Well, if this is gotten away with, I suggest (16+ / 0-)

    putting it in action right away.

    One could have a referendum to place a 25% tax on all California state income of the Mormon and Catholic Churches.

    That's not impinging, by the way, on "freedom of religion".  Catholics and Mormons would still be free to worship as they choose.  

    If the game is how we get to the narrowest possible interpretation of human rights, let's play.

    The Great Orange Satan's Winged Messenger! (-6.62, -6.26)

    by AndyS In Colorado on Wed Dec 03, 2008 at 01:17:10 PM PST

  •  Good luck. (3+ / 0-)

    I'm very optimistic that the Court will agree.  

    Hope you enjoyed it, Sarah, 'cause we just kicked your silly winking folksy lipsticked ass back to Alaska. Now shut the fuck up and stay there. Also.

    by Kaili Joy Gray on Wed Dec 03, 2008 at 01:18:37 PM PST

  •  Thank Heaven for the ACLU (12+ / 0-)

    You do the heavy lifting for all of us.  Gracias.

    Right-wingers who clamor for war and oppose universal health care are not "pro-life" and don't get to say they're "pro-life." It's a lie. Night Train

    by peterborocanuck on Wed Dec 03, 2008 at 01:26:23 PM PST

  •  Glad to see this framing, but we need to test it (7+ / 0-)

    ... out with the fundagelical Republicans and see how they react to it.

    I've learned that what seems to make perfect sense to me, they quickly manage to come up with another completely twisted Bible or popular culture meme phrase to refute it with.

    It's like playing written whack- a- mole with the blog minders.

    We really don't need Churches using the CA state Constitution as a firewall to keep their ex members from "sinning" and we surely don't need them funding local Republican candidates thru this back door method that allows out of state million dollar contributions.

    "Toads of Glory, slugs of joy... as he trotted down the path before a dragon ate him"-Alex Hall/ Stop McClintock

    by AmericanRiverCanyon on Wed Dec 03, 2008 at 01:39:30 PM PST

  •  Lets Support the ACLU thru Orange to Blue (4+ / 0-)

    Why don't we put an opportunity to financially support the ACLU's work through the ACT BLUE link on the DAILY KOS homepage?

    What do we need to do that as a community?

    Gay Agenda: 1. Equality 2. See #1

    by skip945 on Wed Dec 03, 2008 at 01:43:38 PM PST

  •  little by little rights to privacy, rights in (2+ / 0-)
    Recommended by:
    smellybeast, CajunBoyLgb

    court, right of immigrants, rights of minorities, etc. are being chipped away.
    Keep up the good work.

  •  Is it not a serious Idea that (1+ / 0-)
    Recommended by:
    p a roberson

    someone put forth a proposition to make baptism for the dead illegal in California?
    What are the problems with that?
    fire with fire

    Politicians are the same all over. They promise to build a bridge even where they is no river. ~Nikita Khrushchev

    by dashat on Wed Dec 03, 2008 at 01:48:49 PM PST

  •  Is there any case law (1+ / 0-)
    Recommended by:

    that establishes that whether its a revision depends on the substantive impact/importance of the change as opposed to simply the amount of text that is being changed?  I think your argument is probably correct, I'm just curious about what the case law says.

    The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

    by TomK002 on Wed Dec 03, 2008 at 01:54:06 PM PST

  •  Prop 8 - The Musical (7+ / 0-)

    <div style="text-align:center;width: 464px;">See more Jack Black videos at Funny or Die</div>

    Happy little moron, Lucky little man.
    I wish I was a moron, MY GOD, Perhaps I am!
    -Spike Milligan

    by polecat on Wed Dec 03, 2008 at 01:55:14 PM PST

  •  "You may be next" ? (3+ / 0-)

    Anything that is anti egalitarian is hurting everyone .
    What holds someone else down ,
    holds me down at the same time .
    It offends me .
    I cannot partake in a system that is anti .

    "I don;t need to , because I don't give a shit who YOU are" MAORCA ***mean people suck***

    by indycam on Wed Dec 03, 2008 at 01:57:56 PM PST

  •  Good take away my rights (2+ / 0-)
    Recommended by:
    Joes Steven, ibonewits

    It is that simple. I should NOT have rights that others don't just becuase I'm married. Take them away then we don't have an issue.

    Then two people of the same sex or three people of mixed sexes or any people that want to join together can and they can call themselves what ever they fucking want!!

    I'm sick of this argument. Take away the rights of married people is the only solution.

    Why should two people of any sex have rights that two other people of any sex have?


  •  Why can't Prop 8 also be challenged based upon (8+ / 0-)

    the fact that it attempts to arbitrarily define classes of human beings (man and woman) based upon inadequate phenotypic stereotypes?

    Let me be more plain: how does Prop 8 assign individuals who are not "clearly" male or female as being a man or woman? Is it based upon appearance? The presence of external genitalia? Chromosomes???

    Who gets to assign transgender individuals (especially those in transition, which can take many years), and how is it proposed that this be done? How about hermaphrodites? Do these people have to file a lawsuit and have a judge decide which gender they are in order to marry? Why isn't this a priori absurd?

    I'm rather surprised that I've seen virtually no public discussion of what would appear to be a such an obvious and huge disqualifying problem for Prop 8. Will these concerns be included in the California Supreme Court challenge?

    "But there is so much more to do." - Barack Obama, Nov. 4, 2008

    by flitedocnm on Wed Dec 03, 2008 at 02:16:17 PM PST

    •  just takes one brave person... (2+ / 0-)
      Recommended by:
      ibonewits, flitedocnm

      This is a good idea. I'm guessing this hasn't happened yet because of the huge disruption and exposure a lawsuit would bring to that person's personal life.  

    •  Dualism again (and again and again) (8+ / 0-)

      The black or white thinking of Dualism is the default setting for western logic. "Male or female" is one of the basic binary pairs associated with "white or black" (see my Dualism chart for others).

      American culture is especially dualistic to the extent that it has been influenced by conservative monotheistic faiths. Everything "must" be 100% one extreme or 100% the opposite extreme. This is why gay, transgendered, and intersexed people are threats to fundamentalists. Anything that diverges from the 100%/100% divide implicitly attacks their dualist worldview, and therefore must be a plot by the Forces of Evil™.

      The so-called "culture wars" of the last few decades have essentially been between dualists and pluralists. The election of Barack Obama was a victory for the pluralists -- we're now several percent more than half of the electorate.

      AS our kids grow up in an increasingly diverse and pluralistic world, the ranks of the dualists will gradually shrink -- but they will do plenty of damage before they go extinct, if we let them.

      Won't it be nice to have a SMART President?

      by ibonewits on Wed Dec 03, 2008 at 02:45:24 PM PST

      [ Parent ]

      •  Very perceptive and succinct characterization (1+ / 0-)
        Recommended by:

        "Dualism vs. pluralism" puts a lot of issues in a nutshell.

        See the national finals of Dutch children's chorus Kinderen voor Kinderen's 2008 Song Contest December 14 in Hoorn!

        by lotlizard on Wed Dec 03, 2008 at 10:28:29 PM PST

        [ Parent ]

      •  ibonewits (1+ / 0-)
        Recommended by:

        I have your a copy of your Real Magic sitting on my shelf that I'm looking forward to reading.  It's great to see you on this forum!

        I'm Rahm Emanuel and I approve this message.

        by politis on Wed Dec 03, 2008 at 11:42:36 PM PST

        [ Parent ]

      •  I think misogyny adds to the dualism (1+ / 0-)
        Recommended by:

        A lot of people still think of women as defective men. In this view, if someone is complete, they are a man; if someone is incomplete, they are a woman. Logically, if F just means ~M then one is either M or F. Because F does not mean ~M one can logically be F and M, ~F and M, F and ~M, or ~F and ~M.

        That's why people puzzle over the motives of trans women and don't puzzle over those of trans men.

        A second problem, which is more relevant to most but not all IS and TS issues is that one can be M in one sense and F in another. Male genes, female body in AIS. Male body, female brain structures or female body, male brain structures in pre-transition TS.

        •  Much of misogyny is rooted in dualism (0+ / 0-)

          Starting with the whole Adam & Eve fable, where "original sin" is committed by Eve first. Dualism defines women as inferior and part of the Forces of Evil™ because they are supposedly more "fleshly" than men.

          Won't it be nice to have a SMART President?

          by ibonewits on Thu Dec 04, 2008 at 11:57:42 AM PST

          [ Parent ]

    •  This has been brought up (3+ / 0-)

      Though not nearly as much as it should have been.

      On November 15th, San Francisco's rally against Prop 8 included a speaker (genetically XYY, I believe) who addressed this very topic.

    •  Cuz that's a dumb argument. (1+ / 3-)
      Recommended by:
      Bouwerie Boy
      Hidden by:
      Tonal Crow, Pender, JesseCW

      That's why that won't work.

      We are building a team that is continuously being built. - Sarah Palin

      by burrow owl on Wed Dec 03, 2008 at 05:55:21 PM PST

      [ Parent ]

      •  This is where you crossed the line from hostility (1+ / 0-)
        Recommended by:

        to trolling.

        •  Strong defense of the initial argument. (1+ / 0-)
          Recommended by:
          Bouwerie Boy

          I especially appreciated how you pointed out how the original comment wasn't completely irrelevant, and wasn't at all inane.

          We are building a team that is continuously being built. - Sarah Palin

          by burrow owl on Wed Dec 03, 2008 at 06:46:10 PM PST

          [ Parent ]

          •  I'm not defending the initial argument. (3+ / 0-)
            Recommended by:
            smellybeast, JesseCW, Marja E

            Like you, I know it wouldn't work. But if you want to say that it's dumb, you should at least explain why. If a post is going to be rude, it had better have content; and if it doesn't have content, it had better not be rude. At the very least, you could have stated the point respectfully. Watch: "California already allows transgender people to transition and be treated as the gender of their choice, so transgender issues don't really undermine the marriage concept." That took me about five seconds. You should be able to do the same.

            •  ok, what about people who are not one gender or (0+ / 0-)

              the other?  Thanks!

              •  I don't know, but I imagine they have to choose (1+ / 0-)
                Recommended by:

                which to be identified as, and then the marriage rights come from that.

                Maybe that's not fair. Maybe we shouldn't force people to choose. I'm open to that. But it's not a good legal argument that anti-gay marriage laws are vague.

                •  Not vague, just impossible to truly implement (2+ / 0-)
                  Recommended by:
                  JesseCW, Marja E

                  as written.  

                  Theoretically, I could find a cooperative physician, have them fill out a form that allows me to change my gender on my state issued ID, and then go get a license to marry someone of the same sex.  What is the clerk going to do when presented with two "women" but one of them has ID that says "male"?

                  I possibly might be committing fraud, but I would still get a marriage license.  Gender categories are not something that can be enforced.    

                  •  Fine, but that doesn't by itself mean that the (1+ / 0-)
                    Recommended by:

                    ballot initiative was invalid. You could also find a cooperative physician to prescribe you all sorts of medicine you aren't supposed to have, but that doesn't invalidate the laws requiring prescriptions for certain medications. The courts' position would rightly be that perfect enforceability of a law is not a prerequisite to its validity.

                •  I know someone (2+ / 0-)
                  Recommended by:
                  JesseCW, Marja E

                  who had both sets of genitals. This person used to identify as both and would wear which ever gender identifying clothes s/he felt like wearing. He could be a male in the morning and then she would be female for a party that evening. The state tried to force this person to pick a gender for ID purposes, but since there were state laws against transvestism my friend refused and the space describing gender on this person's state issued ID is blank, which I thought was pretty damn progressive considering the state where this person lived, Oklahoma.

                  Usually though, when a baby is born with both sets of genitals they usually remove the penis and force the kid to grow up as a girl.

                  So many impeachable offenses, so little time... -6.0 -5.33

                  by Cali Techie on Thu Dec 04, 2008 at 12:19:36 AM PST

                  [ Parent ]

  •  Please stop using fear as a tactic (3+ / 0-)
    Recommended by:
    VClib, bandersnatch, shann

    I was an Independent.

    I came to the Democratic Party because it seemed that the Party was embracing a candidate and a message that fear as a tactic used against us to act in ANY way is just plain wrong.

    I believed that this was the sane party and joined it.

    There are far better arguments than this against Prop 8 and I understand the anger right now about the results.

    But, for the Left to start engaging in fear of another kind, is just as wrong as when the Bush Admin. did it.  It's manipulative.  I'm tired of people trying to pull my strings.

    Be better than the "they can do it to you" argument.

    It makes me want to recoil.

    "What Washington needs is adult supervision." --BARACK OBAMA

    by broui on Wed Dec 03, 2008 at 02:25:07 PM PST

    •  If someone said to you (7+ / 0-)

      "If the Republicans win, they will appoint another Supreme Court justice, and then YOUR right to choose could be taken away", would that be fearmongering?  

      If you think it is, then have fun finding a political movement that never speaks like that, because all movements/parties use fear of the things that could happen if the other side wins as a motivator.

      How are you supposed to campaign against someone if you can't say "If he wins, he'll raise taxes" or "If he wins, we'll stay in Iraq forever"?  The problem isn't fearmongering per se, it's the lying.  See the difference between: "If the Court rules in favor of Prop 8, there will effectively be no more equal protection clause" and "The gays are coming for your children!!!"

      See what I mean?

      •  I DO see what you mean but (1+ / 0-)
        Recommended by:

        came to this party willingly to for FOR something and someone.

        I did not come to vote AGAINST a damn thing.

        A negative cancels a negative.  It's simple math.

        Admittedly Barack Obama did his share of making the case AGAINST John McCain, he did not win because he was NOT John McCain.

        Barack Obama was far more effective selling his own positive message of hope and change and concrete ideas than his opponent.

        He had a clear argument and backed it up with supporting argument that even the simplest among us could understand.  He presented himself as reasonable despite his Progressive leanings.  As a result, people in the middle were not afraid of him nor were many on the right - only the far right.

        Fear divides.  Fear makes us enemies.  Fear makes people in the middle disengage from issues that don't concern them directly and in a way that protects their own self interests when the issues do.

        But fear, when used as a tactic in a political argument only make short term gains at best.  Then, the pendulum swings.  It always does.

        Appealing to reason and decency, while slower and requiring a great deal more patience is the only permanent way to effectively make meaningful political change.

        This is the lesson of history.  

        "What Washington needs is adult supervision." --BARACK OBAMA

        by broui on Wed Dec 03, 2008 at 03:52:51 PM PST

        [ Parent ]

    •  I keep saying posters like you do not understand (2+ / 0-)
      Recommended by:
      Predictor, chiefscribe

      equal prptection analysis or con law. I don't care whether you were indpendent or not. I do care that you don't understand legal precedent. Here's how precedent in legal cases work: a court makes a ruling, that ruling becomes the basis for similar cases inteh future. that's it. It's not fear. It's what precedent and case law (something they teach us in first year law school) are suppose to do. Unfortunately this sort of situation requires you to understand legal analysis.

  •  If the Calif Supreme Court ruled it was (2+ / 0-)
    Recommended by:
    Cali Techie, trueblueliberal

    Unconstitutional to deny the marriage to the same sex. It seems to me only a constitutional amendment would be required or at least must have 67% of the voter to over rule the Court on constitutional ruling.

    "The Conservatives definition of torture: Anything that provides death or false information from its captive." Me 2007

    by army193 on Wed Dec 03, 2008 at 02:38:37 PM PST

  •  Manzanar ........... n/t (3+ / 0-)
    Recommended by:
    Dave925, lotlizard, ibonewits

    'Thank goodness we Aussies got the criminals and the 'mericans got the Puritans."

    by KenBee on Wed Dec 03, 2008 at 02:47:12 PM PST

    •  Earl Warren, who later became Chief Justice and (1+ / 0-)
      Recommended by:

      … presided over Brown v. Board of Education, was a vociferous proponent of Japanese relocation, arguing that

      "When we are dealing with the Caucasian race we have methods that will test the loyalty of them. But when we deal with the Japanese, we are on an entirely different field."

      See the national finals of Dutch children's chorus Kinderen voor Kinderen's 2008 Song Contest December 14 in Hoorn!

      by lotlizard on Wed Dec 03, 2008 at 10:38:12 PM PST

      [ Parent ]

    •  Manzanar, for those who don't know (0+ / 0-)

      Was one of the largest camps to which Japanese Americans were sent during WWII.

      They have, btw, finally completed both the memorial and the museum there.  It's fascinating, educational, free, and just happens to be a nice place to get out and stretch and pee on your way from Los Angeles to Mammoth.

      You will also learn about the forced relocation of the Paiute away from Manzanar, and how the purchase of nearly all of the Owens Valley water by the City of Los Angeles effectively forced the relocation of the farmers and ranchers who had previously displaced the Paiute.

  •  Thank you ACLU. (n/t) (2+ / 0-)
    Recommended by:
    p a roberson, ibonewits

    39 Years Of Yellow-Dogging And Then 1 Year Of WTF

    by Larry Bailey on Wed Dec 03, 2008 at 02:47:42 PM PST

  •  I would argue that the next ballot initiative (10+ / 0-)

    be, if you were previously married and divorced, you cannot get married again. One shot, that's all you get.

    For those relying on the bible for their guidance. Might I offer Matthew 31-32. Jesus' own words " 31: It was also said , whenever a man divorces his wife, he must give her a decree of divorce." 32: "What I say to you is: everyone who divorces his wife-lewd conduct is a separate case-forces her to commit adultery. The man who marries a divorced woman likewise commits adultery".

    I guess if you are a divorced man marrying an unmarried woman you are golden. Note the hypocrisy.

    I will say this again. Churches do not allow or deny hospital visitations, distribution of property, adoption of children, taxation, etc. No church will be forced to marry same sex couples. No preacher will be jailed for saying homosexuality is a sin. All these things are governed by the state and it is time that the state refuses to acknowledge church marriages and insist that those wishing the benefits of marriage MUST BE married by the state. The churches can have their marriages, but I want to the state take back their marriages.

    No church or preacher will decide who I will love and who I will marry, that is none of their business.

    Those who are willing to sacrifice liberty for safety deserve neither. (Paraphrasing B. Franklin)

    by p a roberson on Wed Dec 03, 2008 at 02:52:15 PM PST

    •  The California Constitution should be amended (4+ / 0-)

      so that the religious institutions can not hold shares in corporations.    Then lets see what the Mormon church says.

      •  I like that idea. I have a difficult time ... (1+ / 0-)
        Recommended by:

        understanding how churches and those who lead them use their poisitions within the community to enrich themselves. Kind of hard to claim mixing business with faith is an expression of religious freedom when Jesus kicked the "money changers" out of the temple a couple of thousand of years ago.

        Those who want to get biblical, I can bring it too.  <g>

        Those who are willing to sacrifice liberty for safety deserve neither. (Paraphrasing B. Franklin)

        by p a roberson on Wed Dec 03, 2008 at 04:05:05 PM PST

        [ Parent ]

      •  That would fail the First Amendment. (0+ / 0-)

        Ya can't single out churches.  If ya wanna say no not-for-profit can hold investments, great.  

        We are building a team that is continuously being built. - Sarah Palin

        by burrow owl on Wed Dec 03, 2008 at 05:54:21 PM PST

        [ Parent ]

        •  Nope (2+ / 0-)
          Recommended by:
          bruh1, MahFellaMerkins

          We give religious Non-Profits a free pass on full financial disclosure.

          We can absolutely pass an ammendment saying that if they own shares in any for profit corporation, then regular Non-Profit rules will apply.

          Salt Lake certainly isn't interested in having to comply with the same disclosure rules that the Sierra Club must abide by.

  •  Hey ACLU! (8+ / 0-)

    As a card-carrying member, I'd like to suggest yet another additional argument to use against letting Prop 8 stand: it violates the nonestablishment of religion clause in the First Amendment of the US Constitution (and any equivalent in the California one).

    Just because a majority of California voters belong to religions that disapprove of same-sex marriage doesn't mean that these faiths' particular doctrines on the topic should trump the different religious doctrines of other faiths and belief systems on the topic. My religious beliefs as a Neopagan say that any adult can be married to any number of other adults regardless of gender. Members of my faith community in California are now forbidden to follow their beliefs because of the tyranny of a religious majority.

    You could probably get Americans United for Separation of Church and State to join you in the argument.

    And yes, I know this approach could lead to a number of "crimes without victims" being declared unconstitutional.. That's not a bug, it's a feature. :-)

    Won't it be nice to have a SMART President?

    by ibonewits on Wed Dec 03, 2008 at 02:58:58 PM PST

  •  It's an interesting king of bigotry. (1+ / 0-)
    Recommended by:

    It's not necessarily anti-gay, it's more specifically pro-closet. What these Modern-Day Anita Bakers are doing is trying to force GLBT people back into the closet by making their lives more difficult.

    It's not like racial bigotry, where it's specifically meant to maintain an unfair advantage, since closeted gay people are presumably free to live miserable fearful lives pretending to be straight, hence maintaining their disadvantage.

    the underlying hatred is the same, though. And I will accept zero bullshit about how Marriage is some kind of special right, different from all the others.

    Joe Lieberman is a Chode.

    by dnamj on Wed Dec 03, 2008 at 03:02:46 PM PST

  •  I have no confidence that the California (1+ / 0-)
    Recommended by:

    Supreme Court will find the proposition to be a revision.  If they find it to be a revision, it will mean preventing the Supreme Court from upholding the numerous "tough-on-crime" propositions, which the state is so crazy about.

    The California Supreme Court wants to uphold the voters right to lock everybody up or put them to death and give more rights to victims than to persons accused of crimes.  If they find that Prop 8 is a revision, it will make it harder to continue with their "mandate" to affirm convictions and promote the death penalty.  

    Unfortunately, this is a big obstacle.

    "Speak out, judge fairly, and defend the rights of oppressed and needy people." Proverbs 31:9

    by zdefender on Wed Dec 03, 2008 at 03:16:03 PM PST

  •  You wanna know who's next? (5+ / 0-)
    Recommended by:
    Dave925, tonyahky, john07801, JesseCW, zekeaz

    I'll tell you who's next.  Gay families with children...that's who is next.  They will pass a constitutional "amendment" to prohibit children in gay households.  They will uproot 100s of 1000s of children.  And you know who is next after that?  Single people with children...

  •  If prop 8 stand, who's to say anti-miscegenation (5+ / 0-)
    Recommended by:
    DaleA, Dave925, craigkg, Predictor, Aristodemus

    cannot again be legitimized?

    Someone with a better legal mind than mine can explain to me the big difference (which I don't see at all) between the arguments that allowed anti-miscegenation laws to stand in whatever state that wanted them until Loving v. Virginia made them unconstitutional in (can you believe it was this recent?) 1968 -

    it seems to me if prop 8 stands, then we're working our way backwards, and again establishing the ludicrous precedent that one group of people can decide for themselves who amonst the whole are worthy of the rights they themselves enjoy.

    As a heterosexual, it is for this logical objection that I take up the cause of defending the rights of homosexuals to marry; for if one group can be so self-righteous as to dictate what another group is and is not entitled to, we're not just turning the clock back, we're turning the entire idea of equality inside-out all over again...

    George Orwell is banging on the lid of his coffin and screaming, "1984 was a cautionary tale, you dolts, not a motivational speech!"

    by snafubar on Wed Dec 03, 2008 at 03:58:27 PM PST

    •  Generally speaking (2+ / 0-)
      Recommended by:
      snafubar, Predictor

      Anti-miscegenation laws were statutory; they were not incorporated into state constitutions.

      Statutes can be overturned quite readily; constitutional amendments generally must be overturned by other amendments (as was done with Prohibition).

      I am far from being a constitutional scholar, but it seems to me that the idea of placing the sort of prohibition included in Prop 8 in a state's constitution rather than simply in a statute is a relatively recent phenomenon. To my way of thinking, including very specific strictures of any sort on a constitution is very problematic for just the reason I stated above. It takes an arguably transitory concern and enshrines it into the basic foundation of the law which is not at all a wise thing to do in the long run.

      •  However, the California constitution of 1879 did (0+ / 0-)

        … contain all manner of racially discriminatory provisions directed against persons of Chinese ancestry. See citations in an earlier comment of mine here.

        See the national finals of Dutch children's chorus Kinderen voor Kinderen's 2008 Song Contest December 14 in Hoorn!

        by lotlizard on Wed Dec 03, 2008 at 10:45:21 PM PST

        [ Parent ]

      •  I'm really shocked at how uncontrollably furious (0+ / 0-)

        I am over this, because I have no dog in this fight. I'm not gay, and I can't say I'm comfortable contemplating the intimate acts of two people who are.

        But that's what makes me so goddamn mad - the very people who think that sex is something that should never be talked about, photographed, videotaped, written about and percieved only to take place when babies are delivered by stork are these fanatical Christians and the disingenuous Republicans who have co-opted their paranoid self-righteousness who have reduced the entire contribution of the LGBT population to nothing more than their sexual behavior.

        All that a person does in their life - their job, their family, their contribution to the economy, military, or any other place they hold in the community no matter how influential or essential can somehow be ignored because of their sexual behavior....something that you and I and the very people who make these arguments know that exceptionally few of them have ever seen or know a thing about.

        Makes you wonder if there was a God and he really was concerned with liars and frauds, the Republican party and Christian Conservatives in general would be hit by lightning just about every time they draw breath...

        George Orwell is banging on the lid of his coffin and screaming, "1984 was a cautionary tale, you dolts, not a motivational speech!"

        by snafubar on Thu Dec 04, 2008 at 01:42:23 PM PST

        [ Parent ]

    •  The US Constitution prohibits antimiscegenation. (0+ / 0-)

      Doesn't matter what CA voters say at the ballot box.

      •  Except... (0+ / 0-)

        That based on our State Constitution, Perez was decided 18 years before Loving.

      •  So....if we can't deny rights because someone is (0+ / 0-)


        This one is seeming pretty obvious to me, it is just a matter of staggering hypocritical duplicity amongst those who support and write these wretched laws?

        (I already know the answer to this)

        George Orwell is banging on the lid of his coffin and screaming, "1984 was a cautionary tale, you dolts, not a motivational speech!"

        by snafubar on Thu Dec 04, 2008 at 01:33:58 PM PST

        [ Parent ]

  •  If it is not struck down (2+ / 0-)
    Recommended by:
    Dave925, irishwitch

    then how about an "amendment" to make it illegal to proselytize door to door in California.....maybe I will make that my "mission".

    Time waits for no one, the treasure is great spend it wisely.

    by mojavefog on Wed Dec 03, 2008 at 04:08:17 PM PST

    •  I'd love to see that (1+ / 0-)
      Recommended by:

      and a number of other direct democracy actions to pin the LDS Church to the wall.

      Unfortunately, the U.S. Constitution explicitly protects religions in a way that it does not (yet) protect gay people. Anything that specifically targets them will lose on U.S. constitutional grounds. So they can really throw whatever ballot bombs they want and then hide behind the U.S. Constitution to avoid return fire.

    •  If U can pass laws to bar aggressive panhandling (1+ / 0-)
      Recommended by:
      Cali Techie

      you can surely pass laws to bar aggressive proselytizing.

      "Some people pay for what others pay to avoid." -- Howard Devoto

      by droopyd on Wed Dec 03, 2008 at 11:20:08 PM PST

      [ Parent ]

  •  Your case seems so (0+ / 0-)

    intuitively correct that I fail to see how the opposition can coherently respond. Although, the lack of a coherent argument hasn't kept the anti-marriage folks from succeeding as of yet.

    God is good, God is great, because he lets us use him for our hate.

    by RfrancisR on Wed Dec 03, 2008 at 04:29:09 PM PST

  •  diary mis-characterizes amendment/revision diff (0+ / 0-)

    Amendments ALWAYS require approval by a SUPERmajority, ALMOST EVERYwhere.  THAT is the default.  What is happening in California is INITIATIVE AND REFERENDUM.  The fact that it amends the constitution IS AN AFTERTHOUGHT.  It's a DETAIL.  THE POINT is to have INITIATIVE AND REFERENDUM.   If you take Initiative seriously then the result NEEDS to be a constitutional amendment, NOT because the content of the issue addressed anything that was constitutional in any way, BUT RATHER because, EVEN though the subject of the content of the measure was properly statutorial AS OPPOSED to constitutional, THE LEGISLATURE WOULDN'T DO IT the way the people wanted it done.  It becomes a constitutional amendment SO THAT THE LEGISLATURE CAN'T JUST UNDO IT by simple majority.   This whole procedure REaffirms that IT TAKES A SUPERmajority  -- NOT 50.1% -- of the people OR ANYTHING ELSE --
    to amend the constitution!

    OBVIOUSLY NOBODY WANTS a constitution that says one thing one day and another the next JUST BECAUSE THE MIDDLE 2% OF THE VOTERS keep staying CONFUSED about it and give 51% to one side ONE election and 51% TO THE OTHER SIDE THE NEXT!  Constitutions are supposed to embody DEEP HARD-
    to-change principles!

    In other words, what California CHOOSES TO CALL "a revision" REALLY IS jsut an amendment, and what the diarist is calling "an amendment" REALLY IS
    INITIATIVE and Referendum, IMPLEMENTED as a constitutional amendment.

    The road to hell has not YET been paved with Republicans, but it SHOULD be -- Corrected BumperSticker

    by ge0rge on Wed Dec 03, 2008 at 04:48:22 PM PST

  •  Great job, though many of us have know this ... (2+ / 0-)
    Recommended by:
    irishwitch, Predictor

    ... since the election.  When everyone else was wringing their hands about how Prop. 8 was going to set GLBT rights back 10 years, some of us were anxious about the social implications but completely unconcerned about the lasting legal repercussions.  The entire campaign was a $140 million dollar farce that, were the CA initiative process better at weeding out legally fraught propositions, should never have made it to election day.

    And while the eventual Supreme Court decision is not completely in the bag, it should be interesting to read their decision and see just how definitively they lay the smack down on Prop. 8.

    •  It'll stand. (0+ / 0-)

      Unless the judges are total hacks, prop 8 will be upheld.

      We are building a team that is continuously being built. - Sarah Palin

      by burrow owl on Wed Dec 03, 2008 at 05:48:46 PM PST

      [ Parent ]

      •  We'll see. I think it falls pretty squarely in (1+ / 0-)
        Recommended by:

        the realm of revision, rather than amendment, for the reasons stated here.

        •  All those reasons that have no basis (0+ / 0-)

          in text, reason, or caselaw?  Color me unimpressed.

          We are building a team that is continuously being built. - Sarah Palin

          by burrow owl on Wed Dec 03, 2008 at 05:59:34 PM PST

          [ Parent ]

          •  Bah! (2+ / 0-)
            Recommended by:
            MahFellaMerkins, chiefscribe

            Rather, your response has no basis in text, reason, caselaw, or theory of governmental structure. You're not presenting arguments; you're presenting con polemics.

            •  All of the caselaw tells us that a revision (0+ / 0-)

              requires a change to the fundamental structure of governance.  Things have been found revisions when they've reallocated power among the branches, or between the state and federal government.

              Rights have been taken by amendment, and always upheld (see Raven).  Accordingly, three other state supreme courts have found that SSM bans are amendments, not revisions.

              We are building a team that is continuously being built. - Sarah Palin

              by burrow owl on Wed Dec 03, 2008 at 06:05:40 PM PST

              [ Parent ]

          •  You consistantly refuse (1+ / 0-)
            Recommended by:

            to actually review the precedents involved.

            •  He's working off people's lack of understanding (0+ / 0-)

              of how judicial analysis works. this is a common right wing tactic. When In Re Marriage was decided, Glenn Greenwald commented that anyone stating that the decision was wrong had to base it on California Constitutional law, and under that analysis the decision was on point as to the weight of CA Con Law analysis. The issue is that not many people understand the legal questions. The right plays off this ignorance by making it about a certain hated group rather than the larger implications (which is what the law worries about) of any particular action. They don't understand that equal protection protects the religious groups as much as anyone else, and yet with this ruling, if there are no federal protection, the state protection would essentially be a matter of majority decision.

      •  Actually I think it'll be overturned (2+ / 0-)
        Recommended by:
        Dave925, irishwitch

        unless they're total hacks.

        "Once you choose hope, anything's possible." ~Christopher Reeve

        by Cali Scribe on Wed Dec 03, 2008 at 06:34:47 PM PST

        [ Parent ]

        •  All the caselaw says it shouldn't be. (0+ / 0-)

          There are cases telling us that the removal of rights is an amendment.  There are also cases telling us that, in order to be a revision, the change has to be the structure of the government itself.

          If the CA supreme court rules it a revision, they do so incorrectly.  It'd be a good result (it's obviously great if gays can marry), but shitty judging.

          We are building a team that is continuously being built. - Sarah Palin

          by burrow owl on Wed Dec 03, 2008 at 06:48:32 PM PST

          [ Parent ]

          •  There is no case law (0+ / 0-)

            When it comes to the California Supreme Court determining whether or not removing the rights of a suspect class is a matter requiring ammendment or revision.

            We only have one case to go one when it comes to determining whether an Ammendment is actualy a revision, and that's Raven, which had nothing to do with the Equal Protection and Equal Acess clauses.

            You seem to be willfully diseminating misinformation.


            •  It may not be willful, but legally speaking he (0+ / 0-)

              does no know what he's talking about. But, that's true of  a lot of people along the thread. As per the long, irrelevant disccussion of federal case law which has nothing to do with California constitutional law. Or, the poster to whom you are speaking who has no idea what he's talking about. I would just ignore him.

            •  By the way, if you read above (0+ / 0-)

              it's clear the post to whom you are speaking does not understand equal protection analysis or does not want to understand or as you suggest is just trying to cloud the legal issues. Part of the problem that the right works off is that they know most laypeople will not know the legal anlaysis involved or what it means. So, someone can come in with some half ass talking point, and it will sound reasonable only if you do not know the theory and practice by a particular type of legal anlaysis. For example equating due process analysis with equal protection analysis. If you do not have grounding in even the basics of the jurisprudence it's hard for most to understand. Its like above- one person said that the ACLU comments are simply scare tactics. I had to point out to them that no- its simply pointing out the nature of what judicial analysis does. It sets precedents. Those precendents- such as deciding equal protection is overturned by a bare majority - will apply to later cases whether its gays or not.

  •  It is so counter-intuitive that a simple majority (2+ / 0-)
    Recommended by:
    Dave925, Jorge McJunk

    of the people who bothered to vote is sufficient to pass a constitutional amendment. My wife and I had a number of discussions about this during the lead-up to the elections. We were both amazed at how similar a proposition to amend the constitution was to an ordinary proposition that would, say, pass a bond issue. IIRC, the only difference was in the number of signatures required to qualify for the ballot, the size of the majority needed to win is the same. It is especially astounding in the context of fundamental issues like Prop 8, but I think it is generally true.

    It is lucky that the court spoke at the moment it did regarding the right to marry. I think that that will cause this proposition to be overturned. However, I also think that a new one will inevitably appear, written with the court's decision(s) taken into account, and if that one passes, the courts will not be able to overturn it.

    If a supermajority--3/5, 2/3, 3/4,something like that--were required for constitutional amendement initiatives, I could accept them much more easily, even major ones like Prop 8, because a vote of that magnitude would be strongly indicative of support by the people. But a simply majority just doesn't feel very compelling to me.

    Greg Shenaut

    •  The answer is very simple: (0+ / 0-)

      change the constitution.  To argue after the fact that the rules should be changed in this instance because it's really, really bad policy simply isn't a liberal position.

      Bush says that the rules are unfair and so shouldn't apply; liberals shouldn't.

      We are building a team that is continuously being built. - Sarah Palin

      by burrow owl on Wed Dec 03, 2008 at 05:47:56 PM PST

      [ Parent ]

    •  Strange (1+ / 0-)
      Recommended by:
      Cali Techie

      that the constitution would prohibit a bare majority, acting through the assembly, from doing X while allowing the same bare majority to do X through a direct vote.

  •  Well, actually (2+ / 0-)
    Recommended by:
    Jorge McJunk, irishwitch

    most minorities have federal protections that can't be overruled by California's tyranny of the majority.

    On November 5, 2008, history was made.

    by Prince Georges for Obama on Wed Dec 03, 2008 at 06:49:59 PM PST

    •  Unfortunately,. CA is not the only (0+ / 0-)

      state that has amended its constitution to ban gay marriage. So far the SCOTUS hasn't ruled one way or the other--which is good because the current line-up (I pray daily that Goddess will recall Harris and Scalia Real Soon to their next incarnation ).

      The last time we mixed religion and politics people got burned at the stake.

      by irishwitch on Wed Dec 03, 2008 at 07:44:48 PM PST

      [ Parent ]

  •  While (0+ / 0-)

    I'm 100% with you in sentiment, I assume you're just plain legally wrong that the state constitution can't be amended by a bare majority.

  •  Go get 'em, and make sure you make it hurt. (1+ / 0-)
    Recommended by:

    I'm heartened that the ACLU is taking up the cudgel for marriage equality, but as a Friend of..., I implore you to make sure that you beat somebody to a pulp with it.

    This may be foreign territory to the ACLU, who is accustomed to stopping when, for example, the Nazis are finally allowed to march in Skokie.

    But this time, I need you to get nasty for me.

    I need to hear credible threats of revoking tax-exempt status, for starters. Going after Bishops and whatever else they call leaders in the LDS Church of California for punitive damages, pay garnishment, and forfeit of personal property would be a good next step.

    Swing for the fences; is there a way people can be prosecuted in Federal to conspire to deny other people their civil rights? If I recall, that's what they got Rodney King's attackers hauled up on. And had the trial not been in Simi Valley, you'd be looking at upsales in soap-on-a-rope.

    I'm sure you all have law school buddies in personal injury and torts: these, as well as Eliot Ness, Batman, Steve Spurrier, and Attila the Hun, would be the object lessons. If in the last week, you haven't had lunch with a colleague who advertises on Cable TV, you're nowhere near working hard enough.

    I'm expecting the ACLU to not just make it right, but to run up the score, and make it hurt.

    Go get 'em, my shark-like friends.

  •  I Came Out Late In Life... (3+ / 0-)
    Recommended by:
    Peace JD, JesseCW, dakinishir

    when I was 42. I was raised a Evangelical Christian, married a woman and raised a daughter. I even once considered a full-time Christian career and attended Bible College.

    But I was aware I was gay when I was young and like most religious gay people, I tried to deny it, thereby failing myself and my wife.

    When I was 41 I met a gay man, also married to a woman with his own family. We fell in love and left our families to be with each other.

    We both are still close to our families and they have accepted who we are. Four years ago, I became a gay and political activist (Thanks Howard Dean!) and even organized a televised marriage equality protest in Columbus, Ohio (I was extensively interviewed on TV). I also have written several articles on my blog.

    So I am familiar with BOTH the conservative religious view and the gay equality view of marriage and I symphathize with BOTH viewpoints.

    For me, I strongly support marriage equality and fully understand the civil/financial legal advantages of real marriage, the protections. I also understand the societal stamp of approval on marriage, the social status marriage provides.

    Ironically, it is this social status religious conservatives most oppose. Religious conservatives do NOT want to prevent gay couples from visiting their sick partners in the hospital or being allowed sick leave to support thier partner or sharing property, etc. But they DO oppose the societal stamp of approval marriage would confer on gay couples because they believe homosexual behavior is an immoral choice and not an inherent trait.

    They won't specifically say that is their primary objection. They will say marriage is meant to protect the family (which is true) and to raise children (also true) and that only a man and a woman can have children (yes and no, certainly children co-produced by their loins). But they will conveniently overlook that a man and a woman unable to have children or not wanting to have children ALSO have the legal right to marry - how is that different from a gay couple unable to co-produce their own children?

    I WANT to legally marry my partner so if he were to become seriously ill, his family could not easily interfer with my healthcare decisions for him despite my Healthcare Power of Attorney, or where to bury him when he dies.

    I symphathize with religious people's discomfort with granting rights to people based on what THEY believe is only an immoral choice, but our US Constitution is a secular document despite what many claim about this being a Christian nation and it should not segregate rights based on certain religious beliefs.

    So thank you ACLU!!

    You guys are my heroes. Like me, you STRONGLY support the freedoms of our Constitution to the point that you will AS STRONGLY support a religious person's right to religious freedom as you support a person's right to equal civil rights regardless of gender, race, national origin, religion, sexual orientation, etc.

    •  I would disagree. SOME religious (1+ / 0-)
      Recommended by:

      conservatives want PRECISELY to make sure that gays cannot visit their partners in the hospital or take family leave time.  There have been far too many cases where hospitals have allowed religious wingnuts to prevent gay partners from seeing their partner in the hospital--which is why EVERYONE needs a medical power of attorney--so they can preach to the poor soul confined to the hospital bed and save their soul fromt he sin of being gay.

      The last time we mixed religion and politics people got burned at the stake.

      by irishwitch on Wed Dec 03, 2008 at 07:42:52 PM PST

      [ Parent ]

      •  Well we could debate the MOTIVE of why.. (0+ / 0-)

        religious conservatives might want to prevent gays from having a legal relationship together and I still contend the primary motivating factor is

        But they DO oppose the societal stamp of approval marriage would confer on gay couples because they believe homosexual behavior is an immoral choice and not an inherent trait.

  •  I am waiting for idiots here in the South (1+ / 0-)
    Recommended by:

    to find a way around religious discrimination laws so that only CHRISTIANS can get married or adopt children.

    The last time we mixed religion and politics people got burned at the stake.

    by irishwitch on Wed Dec 03, 2008 at 07:39:39 PM PST

  •  What's so disingenuous about your post... (0+ / 1-)
    Recommended by:
    Hidden by:
    Shirl In Idaho

    is that this "major revision" of the California constitution is one that defines it the same way that it's been interpreted for its entire history--except for last year.

    It also defines it in the same way that the U.S. and various state constitutions have been interpreted by Barack Obama, Bill and Hillary Clinton, Jimmy Carter and just about every Democrat in the Congress: That "Equal Protection" does not create a right to same-sex marriage.

    Show me that river...

    by luckyoldsun on Wed Dec 03, 2008 at 08:25:04 PM PST

    •  I NEVER KNEW THAT (0+ / 0-)

      What's so disingenuous about your post is that this "major revision" of the California constitution is one that defines it the same way that it's been interpreted for its entire history--except for last year.

      I thought prop 8 changed something that was always into the constitution until i find it that it was indeed changed "only months ago" to allowing gay marriage.

      In this case , it will make the "no on 8" activists" job harder to overturn the "yes vote on 8".

    •  Again CA's Equal Protection Clause is different (1+ / 0-)
      Recommended by:

      from the Equal Protection Clause of the US Constitution. It contains very specific provisions such as this one:

      A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.

      There is no absolute guarantee that the court will so interpret this particular clause (Article I, Sec 7 b) in our favor but it certainly seems to work against the validity of Prop 8.
      All of the people you cite (including Obama, the Clinton's, et al) are basing their lack of support for same sex marriage--which is in any case strategic far more than it is principled, IMHO-- not on the CA constitution equal protection clause but on the US constitution's equal protection clause (and notwithstanding your claim not nearly all Democrats in congress agree with them anyway). There is a huge distinction.

      •  Obama position on gay marriage (0+ / 0-)

        I've heard many on in the gay community claiming that Obama , Hillary and many democrat's position on gay marriage , is not an honest one and they secretly support gay marriage.

        Now , i suspect this could be the case , but i will also say that many honestly dont support gay marriage.

        While they support civil rights for gays , is it impossible to think that this exclude the definition of marriage???

        I dont see anything that would drive me to believe Obama thinks marriage is between any combination of gender but he has to keep this on the down-low.

        When he was a state legislature , did he supported gay marriage??...At that time , i dont think he had any pressure on him to appear centrist on marriage...he also took many liberal position during that period of time , but im not aware of him being pro gay marriage.

        •  In all honesty... (0+ / 0-)

          ...the position of most prominent Democrats--Obama, Hillary, etc.-- on gay marriage seems to be this:

          I'll say I oppose gay marriage.
          I hope that some judge will force the state to allow gay marriage.
          I'll oppose taking any action to reverse the judge.
          The result that I'm hoping for is that gay marriage will be implemented and nobody will be able to accuse me of having supported gay marriage.

          Show me that river...

          by luckyoldsun on Thu Dec 04, 2008 at 03:18:29 PM PST

          [ Parent ]

      •  That provision that you cite... (0+ / 0-)

        ...reads like pure gobbledygook.

        It seems intended to invite anyone and everyone to interpret it however they feel like.

        Does it mean that any affirmative action program--for minorities, women or any other "class of citizens" is unconstitutional?

        It sure seems to.

        Show me that river...

        by luckyoldsun on Thu Dec 04, 2008 at 03:13:51 PM PST

        [ Parent ]

        •  I didn't write it (0+ / 0-)

          On its face, I doubt it was ever interpreted that way. I do not believe that preferences in hiring  rise to the level of "privileges or immunities."

          CA Prop 209 (not sure if that number is correct but I think it is) banned affirmative action a few years ago and while I believe it was contested, it was upheld. If I recall correctly, Prop 209 was not a constitutional amendment.

          I agree that the wording is infelicitous but given that it is part of Article I of the CA constitution, which is titled "Declaration of Rights" I believe that it makes sense to view the expression as referring to fundemental rights; it's part of the state constitution's Equal Protection Clause. I'm not sure that that really clarifies much but perhaps it does at least restrict the meaning of the phrase "privileges or immunities" at least somewhat.

          •  Constitutional Interpreters and Biblical.... (0+ / 0-)

            interpreters seem to operate in much the same fashion.

            First come to a conclusion, based on your sense of "innate justice."

            Then take the document--the bible or the constitution--and find some line in it that you can "interpret" as mandating your conclusion.

            I don't for a second think that it matters a fig what the language of, say, the New York State Constitution is in determining whether the New York Court of Appeals will "constitutionalize" gay marriage.

            Show me that river...

            by luckyoldsun on Thu Dec 04, 2008 at 05:00:52 PM PST

            [ Parent ]

            •  The NY Court of Appeals has already refused (0+ / 0-)

              to "constitutionalize" marriage equality. Their arguments against doing so were truly pathetic.

              That's why it's up to the state legislature to do the work for them.

              You're quite right; the conclusion generally comes first, followed by a search for a rationale. That's why they pay attorneys the big bucks--to come up with the rationales for what they've already decided on and to make them sound convincing.

    •  Sorry, but you haven't read the constitution (0+ / 0-)

      you're commenting on.

      The California also has an equal access clause, which is no small matter.

      •  One of the great things about constitutional... (0+ / 0-) that one does not need to read the constitution in order to come to a conclusion.

        You come to whatever conclusion you want. Afterwards, you can read the constitution in order to fashion your argument in support of the conclusion that you've reached.

        Show me that river...

        by luckyoldsun on Thu Dec 04, 2008 at 03:20:59 PM PST

        [ Parent ]

  •  Love the ACLU. (2+ / 0-)
    Recommended by:
    JesseCW, dakinishir

    Hate Prop 8.

    But I can't help the feeling that we are all fixated on how to fix the latch on the barn door and not paying much attention to the stampede of horses that got out.

    Nullifying Prop 8 will be a good thing, but it won't undo the harm that has already been done.

    I've spent the last decade voting & working to get a Democratic majority here in the NY Senate so that I can get married.  And we won.  But the Senate Democrats are backing away from the table, saying that Prop 8's passage should be a warning to us.

    "I'm just sayin... don't bring that horse in here!" -- Cassandra

    by tc59 on Wed Dec 03, 2008 at 08:37:28 PM PST

    •  When the court kills Prop 8, it's dead forever. (3+ / 0-)
      Recommended by:
      Cali Techie, sfbob, JesseCW

      The one good thing about this sequence of events is that a favorable ruling on this would prevent any similar attempts at separate-but-equal amendments from getting onto the ballot in CA ever again.  If we had just voted it down last month, it could have come back on the ballot and drained energy and $$ again and again, the way the ridiculous parental notification and "eminent domain reform" Trojan Horse initiatives have.

  •  It kinda creeps me out (0+ / 0-)

    When you look up Article I of the CA state constitution (Article I is titled "Declaration of Rights"), there's a brand new section, Section 7.5, which consists of the words of Prop 8.

  •  More research on the CA Constitution (1+ / 0-)
    Recommended by:

    I've been poking around the state constitution just a bit (see above) and found Article I, Section 9:

    A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.

    I'm wondering how this would work to our advantage. It's been discussed elsewhere that prohibitions on  ex post facto laws are generally viewed as applying to criminal statutes but given the mention of contracts in the same sentence (and marriage is in part a contract after all), is this really true? In which case, couldn't this clause of the constitution be used to argue against the validity of Prop 8?

    Now that stick-in-the-mud Drgrishka1 (I have to admit even though his arguments are all downers, they seem quite convincing on their face and he appears to be quite conversant with constitutional law) has stated that if there's a contradiction within the constitution, whichever clause is most recent takes precedence. But if that's true, then Section 9 would mean nothing if a amendment directly contradicting it were passed or, by implication if an amendment were passed which, without so stating but by its application contradicts Section 9, no? Basically I'm looking for all the ammo I can possibly find to throw at Prop 8.

  •  If you want to get the attention of those who (0+ / 0-)

    Think that "civil unions" are 100% equal to marriage, ask them how they'd feel if the law only entitled their particular religious/ethnic/social class to "reproductive unions"... equal to marriage in every way, of course.

    BushCheney Inc. - They lied to me, they lied to you, they lied to our troops.

    by jjohnjj on Wed Dec 03, 2008 at 11:05:17 PM PST

  •  Proposition 8 - The Musical (0+ / 0-)

    "We do not torture." - George Bush during recent Asian visit

    by Flippant to the Last on Wed Dec 03, 2008 at 11:57:27 PM PST

  •  The ACLU is the most American organization (3+ / 0-)
    Recommended by:
    Tonal Crow, hulagirl, FilipinoMonkey

    in existence.

    Keep up the good work ..... you are using my money well :-)

    Most people worry about their own bellies and other people's souls, when we all ought to worry about our own souls, and other people's bellies

    by plf515 on Thu Dec 04, 2008 at 03:50:19 AM PST

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