Keep in mind that the Question was the legitimacy of Prop 8....

[LeftHander]

The court has already stated clearly that same sex marriages are to be allowed. Prop 8 ruling is about the process and whether or not it was Constitutional under California State Constitution.

The fact that California is fucked up and the legislature is emasculated and pointless is all too clear.

California is run by committee expressed in the form of ballot measures put forward by self serving, well funded special interest groups.

California will fail as a result of this form of governing in this divisive political climate.

[nini]

1. very true

this state is circling the toilet with these propositions - it's got to change.

[Gormy Cuss]

19. I think the plumbing's clogged already.

I can't believe the number of props on every ballot. Prop. 8 is just the latest travesty.

The question is, how do we change it? Via a prop?

[nini]

22. we need a constitution convention

it's that serious. There's a movement to get that done and the pressure is building because of this, the budget BS etc..

[Taverner]

2. I don't give a rats ass - the CA Supremes had the chance to do the right thing

And they chose to be spineless

Fuck em all

I'm voting GREEN in this state from now on

The CA Democratic party doesn't care about anything but their own asses

[rcrush]

5. +1

[Cant trust em]

6. I love how Iggy is wearing a T. Rex t-shirt

Glam gods of the 1970s.

[Taverner]

7. I know - and that pic sums up each of their personalities perfectly

[Cant trust em]

9. Ziggy Stardust was on TV this weekend

I love the part where Bowie comes out in the kimono, spreads his arms, and then two roadies come out and yank the costume off.

[Taverner]

13. Got that on DVD - its awesome

The only part that bugs me is the mime - and he mimes at a lot of his concerts

Only good mime is a talking one...

[Craftsman]

16. All Politicos are the same

They are politicos of course they are in it for themselves.

[Mudoria]

25. They followed the constitutional process

It's not their job to make the laws only to interpret the law as it relates to the constitutional question at hand. If you want the law changed go to the legislators who do make the law.

[Taverner]

29. But the constutiuon guarantees equal rights to all

Would it be Constitutional for the State of California to pass a proposition reinstating slavery?

That cop out does not hold water

[Statistical]

33. Equal protection under CA constitution isn't what prevents slavery.

The 13th amendment to US constitution prohibits it and via due process clause of the US Constitution that restriction is Incorporated against the states (including CA). Thus any state passing a law making slavery legal would be challenged via 13th amendment & due process clause.

There is no federal law or amendment protecting marriage as a right.
Personally I think it is a right but legally there is currently no legal framework to support that.

Equal Protection under the law is very loose term.
Do the rich not have unequal protection in terms of hiring expensive lawyer?
Do we place a limit of legal expertise in the court room?

Sadly I think the courts hands were tied.
They could rule with no legal standing but it likely would have been knocked down on appeal.

What is needed is either a change in law in CA or nationally a true "marriage equality act".

The courts are bound to decide based on the legal merit of the case not the emotional one and often not based on "fairness".
Sometimes this limitation has consequences but our country was founded on the principle that legislation comes from the legislature.

The founding fathers also mistrusted the mob and believed in a REPRESENTATIVE democracy. Sadly CA has given up that responsibility to the mob.

[anigbrowl]

48. True, but these judges are interpreting the CA constitution, not the federal one

They simply don't have the authority to decide whether it conflicts with the 14th amendment or not, they're not federal judges. That decision could only be reached by appealing their decision into federal court.

[omega minimo]

3. "emasculated"?

:wow:

[Lex]

4. Civil liberties of any group shouldn't be up for the majority to vote on.

It's ridiculous. It's like asking southerners in the 1950s/60s to vote on whether interracial marriage should be allowed.

[crazylikafox]

8. bingo

[Midlodemocrat]

10. +1

[nini]

12. exactly

.

[LostinVA]

20. 44-6

[MNDemNY]

11. Too much democracy is a fatal flaw. CA will soon be bankrupt.

Morally and financially.

[Toasterlad]

14. Understood. But There's Clearly Something Wrong With the Process

if the majority is allowed to vote away the rights of the minority. And yet the CA justices voted FOR the process, 6-1.

That's beyond fucked up.

[LeftHander]

21. Ding ding....

Sometimes things need to be done right the first time. Prop 8 was wrong on so many levels the fact that we have to deal with these narrow amendments is regretful.

Now they have people who are married in the group of people who cannot be married.

Go haters...do some more damage. Why not make it a crime to be gay, and deny employment. What the fuck is the difference. You can do it via referendum. Any crazy millionaire can do it.

[Xithras]

15. Indeed. It was about whether this was a revision or amendment.

Because the measure inserted new verbiage into the Constitution, didn't rewrite any of the existing content, and didn't remove or alter any constitutionally delegated authority, the argument that it consituted a "revision" has always been a longshot.

I hate to say it, but I've heard several other arguments from advocacy groups that worried me about this ruling. Had the court ruled this a revision, the legal stretch required to make that claim would have potentially opened up dozens of other propositions to challenges...everything from Prop 13 (limiting property taxes) to Prop 98 (ensuring school funding). Propositions covering everything from Wildland protections to term limits would have also been open to scrutiny and potential challenge.

I support gay marriage so strongly that I can't even put it into words, but this method of challenging it was a risky longshot. We're better off pursuing equal protection arguments at the federal level.

[AntiFascist]

49. NOT TRUE!

The argument for Prop 8 being a revision vs an amendment rested on the CA Marriage ruling that gays and lesbians are a suspect (protected) class and that marriage is a fundamental right. The justices clearly stated, during the oral arguments, that they were being asked to rule whether removing a fundamental right from a protect minority could be accomplished through the amendment process. They also admitted that this was a novel issue that the court had never been asked to consider in the past. I'm afraid you are very wrong.

On edit: property taxes and school funding have nothing to do with protected minority classes. The only past court ruling remotely similar to this involved the rights of criminals, and the justices tended to equate the homosexual minority to the criminal minorities, where rights were limited through the amendment process. This was clearly wrong.

[Seen the light]

17. I agree, I don't blame the Court at all really

The people to blame are the dumbfucks that voted for Prop 8 in the first place. The hands of the Court were tired really.

[Statistical]

36. I wonder if a challenge could be made on the Prop system.

Is the direct vote system unconstitutional either US constitution or CA constitution.

Eliminating the Proposition system would put power back in the hands of the legislature.

we have a 3 branch system:
Executive
Legislative
Judicial

Except in CA it has been turned over to the mob:
Executive
Mob
Judicial

[jobycom]

18. Would they have ruled in favor of a law banning African Americans from voting?

No matter the background or specific legal issues, they ruled that a law targetting gays and lesbians over all others was valid. Even if it was legally passed, it should have been ruled unconstitutional and legally invalid.

[LeftHander]

23. Had a majority of voters passed the ballot measure apparently so....nt

[jobycom]

26. Hope you're wrong, but fear you are right, based on the evidence. nt

[Xithras]

24. But that wasn't the issue on the table. A court can only rule on the motions presented to them.

The issue brought before the court was whether Prop 8 represented a revision or an amendment to the state constitution. That's all they could rule on.

[jobycom]

27. So you're saying that if a Prop banned African American voting they would rule it valid

just because it fit the legal requirements of a law? If that's the case, California has a fatal flaw in its Supreme Court.

[Xithras]

32. Yes, they would, but it would be overturned by the USSC

You have to remember that we're talking about an amendment to the state constitution here, and we're talking about a state supreme court. The state supreme court, which derives its authority from the state constitution, does not have the authority itself to rule the state constitution unconstitutional. By its very definition, an amendment to the constitution is ALWAYS constitutional.

The state supreme court was given a very narrow circumstance to rule on...did Prop 8 represent a revision of the state constitution (an alteration of the rights and privledges already granted under its authority) or did it represent an amendment (a change that governs something previously unaddressed in the constitution). If it was a revision, it had to go through the legislature first and wasn't passed correctly. If it was an amendment (which is was, since marriage rights were previously unaddressed), it can be ratified directly by the people.

If voting rights for African Americans aren't addressed in the state constitution, then YES, they can be blocked by popular vote. What you have to remember though is that NO state law, or state constitution, can be in conflict with the federal constitution. Any state constitutional amendment blocking African American voting rights would be slapped down within minutes by a federal court as a violation of the 15th amendment.

[Statistical]

37. It wouldn't get that far.

Sufficient case law exists to show the 15th is incorporated against the states.

The courts would simply reference the cases showing 15th applies to the states (thus state of CA) and rule the new law/proposition violates the 15th amendment via due process clause.

[jobycom]

42. That's not what I was asking.

I'm asking if the hands of the court were tied to such a degree that they had to rule that a clearly unconstitutional law was valid simply because it followed the rules. Usually a Supreme Court has the authority to rule in any case that the underlying law is invalid because it allows violation of the Constitution or basic rights, even if the arguments presented are not about that constitutionality.

Is the California Court different somehow? Could they have ruled in the clear case of a Constitutionally invalid law that the law was invalid, or would they have had to rule that a law banning African Americans from voting was legal because it was legally passed? No matter how unlikely it is that that specific law would make it to that stage, are you saying that if it did, hypothetically, that the Cal SC couldn't rule it unconstitutional at that stage?

I'm asking, but if the answer is yes, I'm horrified.

[Statistical]

44. It isn't unconstitutional. Sadly. Not yet at least.

You are comparing to different thing.

Proposition to ban African Americans from voting.
The 15th amendment makes that unconstitutional. The due process clause of the constitution incorporates that restriction against the states (including the state of CA).

The court clearly would say Proposition 999 is unconstitutional. They would then law out a legal road map tracing back to the 15th amendment and various court cases showing the 15th being incorporated against the states.

The opinion would be strong because it would have pages upon pages of references to previous court cases and legal theory.


To simply say that this Proposition is unconstitutional because it is unfair isn't something the court has the latitude to decide.
There is no legal basis to argue that marriage (ANY MARRIAGE even among opposite sex couples) is a right.

How can you rule that something is unconstitutional because it violates a right when you haven't even proven it is a right to begin with.

sadly most people assume marriage is a right. Legally it is not. You ask and are granted permission to marry from the state.
Don't like that idea. Well ask Congress to pass an amendment declaring marriage as an inalienable right that pre-exists the formation of this country.

[jobycom]

47. I'm not comparing, I'm asking about legal procedure.

Could the Court at this stage have ruled that a law was unconsitutional even if that was not the specific issue being raised by its supporters? It's a simple question, but everyone is so caught up in their own thoughts that they don't seem able to hear it. If they got a law that was clearly unconstitutional at this point would they have to rule it as valid because it followed proper procedure?

As for the rest of your argument, though it wasn't my point, I'll counter it. Marriage may or may not be a "right," (I'm not sure enough to argue that one way or the other), but equality is, and if a state offers a privilege to someone, they have to offer it to all people equally. Read Bush v Gore, for one example, where the SCOTUS ruled that even though there was no constitutionally guaranteed right to vote for the president, that once a state had decided to hold an election for the president, then the state had to treat all citizens equally. In other words, voting isn't a right, but if a vote is held, all people have an equal right to vote.

So if marriage is offered to anyone, it has to be offered to everyone. The Equal Protection clause of the 14th Amendment makes this explict: no state shall ... deny to any person within its jurisdiction the equal protection of the laws.

So unless the California Supreme Court is specifically forbidden to rule a Proposition unconstitutional at this stage--in other words, if even a law forbidding African Americans to vote would have to be upheld at this stage because the Court had no ability to declare the law illegal--then what the Cal Court said was that gays and lesbians do not have equal protection under the 14th Amendment. If they could rule that a law violating the 15th Amendment was unconstitutional here, they could have ruled that a law violating the 14th Amendment was unconstitutional here. And if they could rule neither, than the court is flawed.

[Statistical]

50. No.

Courts can only rule based on the question asked them by the petitioners.

It is for the protection of the petitioners that it work that way.

The plantiffs COULD have presented arguments that Prop8 has unconstitutional.
Then the state could have presented arguments that it was.
Then the court could have ruled on that question.

In this case the plaintiffs decided (a calculated bet) not to make the case an issue on constitutionality of Prop8.
Since the plaintiffs did NOT make it an argument the state didn't defend against that line of attack.
Since neither side presented arguments the court was bound not to rule on something not presented.

The reason is if the plaintiff doesn't ask the question then the other party has no chance to give their arguments, their side of the story.

Having courts rule based on facts not entered into evidence is a VERY dangerous path to go down.

Imagine you going in to court for a speeding ticket. City makes their case, your lawyer makes your case.
Then the judge rules on something totally different outside the scope of the issue. Something you weren't expecting and had provided no defense. Based on no evidence presented and no defense given the judge convicts you and you go to jail for a year.

I know you want it in this case but it is DANGEROUS to give the courts that kind of power. Think of it in general terms. Would you want it that way for ALL cases. Power is eventually abused.

If you or anyone else believes it is unconstitutional then file a suit saying it is unconstitutional. Period. Don't expect the court to rule on something not presented.

[jobycom]

55. That's not really true. Remember, one Justice did dissent, and he cited the 14th Amendment as reason

"Justice Carlos Moreno wrote that the measure "violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning."

"The majority's holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution," Moreno wrote."

----

Moreover, your speeding ticket example doesn't work. That's a criminal case, and they operate very differently.

Appeals courts sometimes do decide that all the arguments in a case completely miss the legal point, and sometimes do rule that despite the arguments and cases presented, the best answer is one not raised by either side. Supreme Courts already have that kind of power. Whether it's a dangerous path or not is irrelevant, they do have that power, and do use it.

And the essence of the law on Prop 8 is perfectly relevant. The case was whether the Prop was an addition or an alteration of the original Constitution, and that touches specifically on whether Prop 8 fundamentally altered rights guaranteed by the California Constitution. The Court would be within its rights to argue that the Prop also violated the US Constitution, as one Justice did.

[EFerrari]

30. That's right. I don't see how they could have ruled otherwise today.

They have already ruled on gay marriage once and that ruling resulted in 18000 marriages.

[Statistical]

34. 15th ammendment.

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Even if it did not specifically mention state in the text it would be incorporated via due process clause.

[jobycom]

45. Not my point, but 14th Amendment, Equal Protection Clause.

"no state shall ... deny to any person within its jurisdiction the equal protection of the laws."

My point was that some are saying the Cal SC could only have ruled this way based on procedure, implying they could not have ruled the law unconstitutional. I'm asking if that's true, if they could have ruled a law unconstitutional that was clearly unconstitutional, like one which violated the 15th Amendment. If not, then the California State Court is fatally flawed. If so, then we are back to the original point that the California Supreme Court has six bigots who do not consider the rights of gays and lesbians as equal under the law.

[Statistical]

46. They "could" rule it violated the 14th

if such a case had been presented. The plaintiff presented no such case and defense presented no such defense.

To issue a ruling on a issue not presented is not judicially sound. The "other side" wasn't given an opportunity to present a defense of that idea/concept.

While you may like the outcome in this instance it s a very dangerous route to take.

Take the Heller decision for example (Heller vs DC ruled 2nd amendment is an individual right).
Heller didn't put incorporation against the states on the table. DC didn't provide any defense against incorporation.
If SCOTUS had ruled beyond the scope of the question and stated the 2nd is incorporated against the states it would be a ruling on a topic in which neither side presented arguments. What is SCOTUS was wrong? Sometimes the issue is black and white but sometimes it is not. The courts shouldn't reach decisions until they at least hear arguments from both sides. What if one side presented a point that the court hadn't considered.

Courts should not decide things not presented as evidence and on which both sides have presented arguments.

So two issues with 14th amendment approach:
1) the plaintiffs didn't present that as an argument
2) is marriage a right? Can you cite any case law indicating it is anything other than a privilege granted by the state.

Arguing something violates the 14th before proving it is a right is getting the cart before the horse.

[jobycom]

52. Best explanation I've gotten, thanks. On your last question, though,

It does not matter if marriage is a right or a privilege. If a privilege is offered to anyone, it has to be offered to everyone equally. That's the common interpretation of the Equal Protection Clause, and for at least one court example, check out Bush v Gore, where the Court ruled (per curiam, IIRC) that even though there was no specific right to vote for the president in the Constitution, the fact that Florida had decided to hold an election for the president meant that it had to be treated as a right, and equal protection and all other Constitutional requirements towards equality applied.

In other words, even if marriage or voting for the president isn't a right, equality is.

But that wasn't my question. You've explained well how the Court limited the arguments, and you mentioned previously that a clearly unconstitutional law would have been struck down before it got to this point. My question is still there, though. Why wasn't this law struck down? Is there still a case in the works, or has that already been decided? Why did the Court limit arguments to simply procedural arguments. Somewhere a decision was made that gays and lesbians don't deserve equal protection. Somewhere along the line the constitutionality of this law limiting marriage based on gender has to be addressed.

[Statistical]

53. I might not have been clear.

I was stating a case violating the 15th would already be struck down because it is so open & shut.
It still would require a plaintiff, and arguments. It isn't automatic. That isn't the role of the courts. The courts would act but not until arguments were presented and not outside the scope of the arguments.

The case would be simple though. There would be no arguments made on if Prop8 was an addition or a revision.

The argument would simply be this prop violates the 15th.
The 15th is incorporated against the states.
Therefore this court must strike down this prop.

There would be no need to go further. It wouldn't need to go to ninth circuit or SCOTUS it could simply be decided right there.

Why a case wasn't presented simply on merits of the 14th? I don't know you need to talk to lawyer for the plaintiffs. Sometimes lawyers get tunnel vision. IF they had been successful it would have bypassed the entire issue and made Prop8 invalid simply on procedural basis. Obviously someone that this was the route to go.

On the privileges vs rights avenue I will admit most of my understand of Constitutional law comes from RKBA so that is a new subject.

[jobycom]

54. Here's a comment by the dissenting Justice, and he does cite Equal Protection.

Justice Carlos Moreno wrote that the measure "violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning."

"The majority's holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution," Moreno wrote.

--------------------

So apparently someone on the Court felt they had the right to rule based on the 14th. I have to leave now, but I hope to read his opinion later.

[Statistical]

57. His decision was still based on the ammend vs add issue.

He believes the prop so vastly changes the Constitution that while it doesn't specifically amend a previous section by name it amends it in concept. That is a kind hard concept to quantify and I think the other justices didn't make a ruling that is so interpretative.

I always thought this amend vs add argument was a long shot.

The next suit will be clearer.

Logically the next suit will be to the ninth circuit court on grounds of unequal protection under the law.
You have two groups of people:
1) those married before prop8
2) those wishing to marry after prop8

who have unequal protection.

The ninth circuit will hear it. Either way it will be appealed from the 9th to SCOTUS.

[Terran]

35. No, because there is a federal law in place that prevents such

from happening. There is no federal law protecting the marriage rights, specifically, of same-sex couples.

[John Kerry VonErich]

38. True

and that in technical legal terms marrage is a privilidge and not a right because of its licensing. The only way now is to delicense marrage.

[Terran]

39. er, well, there IS another way...

Take it to the SCOTUS and they will rule that 14th Amendment's WEqual Protection clause applies here too, as they have already done in lawrence v. Texas regarding gay people.

[John Kerry VonErich]

40. But still, the strongest arguement from the opposition will always be licensing.

nt

[Statistical]

41. Exactly license and permits indicate a privilege granted by the state.

I am not aware of any case law anywhere (even among opposite sex couples) where marriage is defined as a right.

Ruling that something is a violation of the 14th when you haven't even proven it is a right is getting cart before the horse.

Historically the states routinely restricted marriage and it has been broadened legislatively not judicially.

Best area to look would be marriages between former slaves, inter racial marriages, and non religious marriages.
Were the laws prohibiting these struck down by the courts or were they simply changed via legislature?
If they were struck down did the court opinion indicate marriage is a right?

If so right + 14th = win.
Not a right (legally) + 14th = Nothing.

[jobycom]

43. No, there is a federal law which makes it illegal, but it doesn't "prevent" it.

The law could still be passed, it would just be overturned. That's exactly why courts exist.

And most state supreme courts--I would say all but I'm starting to wonder about California--can declare that a law violates the Constitution even if there is not a specific federal law stating that it is unconstitutional. Or rather, people are protected from unequal treatment before the law by the Constitution and the "Equal Protection" Clause of the 14th Amendment.

[Statistical]

51. They can as long as....

the plaintiff presents that argument AND the opposing side is given an opportunity to present theirs.

The plaintiffs did NOT present that argument which limited the scope of the trial. The court can not expand the scope of the trial.

The courts can not rule on something not argued. It is a cornerstone of our judicial system

Step 1) Conflicting opinion
Step 2) Question for the court
Step 3) Both sides present arguments
Step 4) Court rules on question in #2.

It is the plaintiffs job to ask the right question. They didn't. It was a legal maneuver and it failed.

[Terran]

56. I meant that the CASC would be prevented from upholding

such a law, not that it would prevent the law from beng passed. Although state legislatures sometimes pass laws that conflict with federal law, there's no doubt that the CASC would defer to federal law in such a hypothetical.

[cecilfirefox]

28. Just sad.

:/

[Lone_Star_Dem]

31. True, but what does this now mean for the future of equal rights in California?

Whatever the majority says goes? Imagine the implications of that for a moment. Frankly, I expect even more disastrous results from this ruling.

[Lex]

58. Tyrrany of the majority.

nt

[Odin2005]

59. The results of Referenda are not the Will of the People but the Will of Monied Special Interests.

The Populist ideal is a failure. Initiative, Referendum, and Recall should be abolished.