No one really understands the appellate process, including apparently legal reporters

[theboss]

The California Supreme Court today did not say that gay marriage is a right. It also did not say that it is not a right. It simply said that the passage of Prop 8 was legally proper.

Now, I'm not an expert on California law, and the whole proposition system seems crazy to me. But everything I read about this case leads me to believe that any other ruling would have caused a hell of a lot of chaos in California. Simply because the entire California system is so very screwy. But it is the law unfortunately.

And before anyone makes this a 14th Amendment issues, please keep in mind that no USSC case has made homosexuality a protected class. Therefore, there is no basis for arguing equal protection here. So, no, California could not vote away rights from black people, because that would be a violation of the 14th Amendment.

Gay people, unforunately, do not currently have such protection. They have no real protection under federal laws right now.

This is a battle that probably cannot be won in the courts. It's going to have go legislature by legislature and ulitmatley to Congress. And to be honest, that is probably the more stable route - even if it is a hell of a lot more difficult.

[xchrom]

1. i have to conclude that unlike other minority rights -- i will not

get mine through the courts.

listening to the arguments and the questioning of the suprmes -- you saw how this was going to turn out.

[theboss]

3. I think there are some victories to be won in the courts

But if Gay Rights advocates thought they could mirror the civil rights approach and succeed, I think they were clearly mistaken.

But...there is more than one way to win.

[xchrom]

5. i think we had reason to think that we could.

however -- the right has learned the lessons of the sixties and seventies.

and have become better litigators.

lgbtiq people are going to have to use more than one approach to the finish line -- and we are going to have work those channels simultaneously.

[readmoreoften]

22. Wait, Brown vs Board et al, were *voted* in?

I thought that most civil rights are won in the courts. Now they're won in the legislature. In other words, we have to wait until the millennial generation can vote or the Democratic party grows a spine until we get rights?

In what way is this "freedom"? This is disgusting and absurd.

[theboss]

26. Civil rights based on sexuality are not seen as analogous to civil rights based on race

That's the problem.

If you can sell it to the courts that they are the same, this stuff becomes easy. If you can't, you have to get the legislatures to make it law.

[xchrom]

46. more -- or less that is correct.

tyhough we can use the ballot intiative to our ends as well as legal challenges.

lgbtiq people are going to have use a myriad approach to get our rights.

[Hippo_Tron]

43. I think the recent rulings in other states suggest otherwise

And actually the California Supreme Court did the same thing as the other states. The only difference is that they have an absurd system where a simple majority of voters can change the constitution. Most states don't have that because quite frankly it defeats one of the fundamental purposes of having a constitution which is to prevent the tyranny of the majority or mob rule.

[xchrom]

52. how many staes have enacted anti-gay marriage laws again? nt

[Hippo_Tron]

57. Here's a map outlining what different states have

http://en.wikipedia.org/wiki/File:Samesex_marriage_in_USA.svg

The courts have struck down the statutes in almost all of New England and Iowa and the entire northeast should follow soon. Then other states with only statues and not constitutional amendments will probably follow. We will soon probably have a dozen or so states that recognize same sex marriage.

The uber red states are the problem because they will never allow same-sex marriage without federal intervention.

[tekisui]

2. The CA court could have ruled that the passage was proper,

and still recognized that the measure violated CA's Constitution by removing previously granted rights. There was room and cover to strike the measure down, but they didn't chose to go that far.

It could still be challenged and won in court, IMO.

[theboss]

4. But Prop 8 changed the CA constitution, did it not?

If this was a simple law that was created, that would be one thing.

A judge simply can't say, "Well...this part of the Constitution is wrong."

[xchrom]

6. it did -- AND there's wiggle room.

it's very confusing.

[armyowalgreens]

31. Ummm that is the purpose of a supreme court. To test constitutionality.

The only reason why I think there would even be a possibility that they wouldn't strike down prop 8 was because there lacks precedent. But even, they could set precedent.

But the court can and should question the constitutionality of laws. That is the Supreme courts purpose.

[theboss]

33. The USSC is not there to be an Oracle though

If you think you know the law, a judge can say, "To be safe...let's send this upstairs...."

[armyowalgreens]

36. Well did they say anything about sending it down the line?

I'm attempting to read the decision right now but it's going to take me days.

[theboss]

38. Of course not

No court ever says that. That's not how the appellate system works.

[armyowalgreens]

39. The courts usually suggest that it is beyond their capabilities but recommends further review

I've seen it before. I find it odd that no one suggested that in the opinion.

[anigbrowl]

42. Yes - the constitutionality of laws.

Thus, they turned down prop 22 (which had identical wording to prop 8) because it was enacted as a legislative rather than a constitutional one. But legally speaking, ruling a constitutional amendment invalid is a totally different kettle of fish from ruling a legislative change invalid on constitutional grounds.

The thing to bear in mind here is that this is not a moral judgment coming down from the court. It's a technical one about how CAs constitution works, whether or not the judges agree with the change in question.

[slackmaster]

7. There is no such thing as a "granted" right

All rights exist except those that have been curtailed through due process.

[tekisui]

11. It was a right that had been curtailed, and then 'granted;

by the previous SC decision.

[slackmaster]

12. Nope

It was curtailed unlawfully, then respected by a court decision; and now it has been curtailed unlawfully again.

It has existed the whole time.

It may seem like splitting hairs, but the words have very specific meanings.

[HamdenRice]

8. The OP is basically correct

There has been a lot of scholarly speculation about whether a constitutional amendment can be unconstitutional. The answer is almost always, "no."

Bruce Ackerman, for example, explored what would happen if a federal constitutional amendment was passed, according to proper procedure, repealing the First Amendment and establishing, say, the Baptist religion, as the official federal religion. The non-existence of established religion is considered so fundamental, that some believed that such an amendment could be unconstitutional. But most legal scholars agree it would be constitutional.

The real question raised by this litigation, though, is whether the California State Supreme Court could/should have applied federal constitutional equal protection to the state constitution. They are allowed to do that. They could have said Prop 8 was constitutional under the state constitution, but unconstitutional under the federal constitution. A state supreme court can strike down a state law or state constitution on federal constitutional grounds. In other words, they can apply both state constitutional law and federal constitutional law.

They could have asked, "does our state constitution now violate the federal constitution?" They could have done that and answered, yes it does. The problem is that there is no federal constitutional Supreme Court precedent that they could rely on.

Then you get into hyper weird territory. This would have triggered an appeal directly to the US Supreme Court (bypassing lower federal courts), and the US Supreme Court would have confronted the issue directly.

The US Supreme Court would then either have decided the issue nationally for or against. If for, end of story. If against, even then, there is some authority that a state supreme court can interpret a federal right more expansively than the US Supreme Court. But at that point the state court is skating on thin ice in terms of political legitimacy.

[zipplewrath]

9. Almost always

The "almost" part here seems to be the fundamental problem. There are "unconstitutional" amendments. At the federal level I can usually only think of one or two (mostly having to do with senate representation). However, at the state level, anything that violates the federal constitution is an "unconstitutional constitutional amendment". A violation of Article IV would be an example. A violation of the 10th or 14th would be another. It would seem that there was a path that went as thus:

The State determined that marriage was an individual right. The 14th prevents the states from denying people federally protected rights. The Xth amendment says powers not granted the government are reserved to the states "or the people". This would mean that California was prohibited from taking away the rights of people because the state did not have the power to do so, referendum or not because the federal constitution protects individual rights against powers not granted to the states.

I know, it gives one a headache.

[theboss]

15. The issue, though, is that homosexuality is not a federally protected right

There is a right to privacy and that is where most "gay rights" cases have been won. There is almost zero chance at this point of the court declaring homosexuals a protected class - which is really what needs to happen. Keep in mind that women aren't even a protected class.

The 14th Amendment is really not so simple as "law discriminates so law is struck down." All kinds of discriminatory laws are allowed. The issue is what kind of class the group is in.

[zipplewrath]

20. Xth amendment

The USSC said that gay marriage (well marriage really) was not a right, so one could not apply the Xth to it. However, California ruled that it WAS a right. As such it became an individual right. The Xth protects individual rights, and the 14th prevents the states from interfering with individual rights. The California SC could (and should) have ruled as such.

[readmoreoften]

27. Where does it say heterosexuals are a protected class? The "man" and the "woman" getting married

could be homosexual. The law promotes a social structure of property relations. It doesn't really comment on sexual desire or sex acts. Frankly, it disgusts me that the state is so interested in the social structure of property relations that it is willing to discriminate against a group.

[theboss]

32. They aren't

But marriage between them is specific in the law.

To be honest, you could probably outlaw heterosexual marriage this way.

I think.

This is a really strange situation.

[tekisui]

13. Right, as an amendment it changes the constitution.

CA could have sent it to the Supreme Court, I think it would have been rejected as constitutional based on equal protection there.

[armyowalgreens]

44. Simply because it changes the consitution does not mean it is constitutional.

If it violated other parts of the constitution, that means it is against the law. If by simply passing majority rules law, we can change the constitution, that means that there is no point for a court system or even a constitution. They are both put in place to protect minority rights.

[anigbrowl]

64. Unfortunately, that's exactly how CA ballot initiatives work

although it requires a 2/3 majority for the legislature to do anything like raising taxes or even passing a budget, the state constitution can be changed by a simple 50%+1 majority at the ballot box. It's actually easier to change the constitution than to change legislation, since by doing so it bypasses a whole bunch of other checks and balances (eg the legislature).

[armyowalgreens]

69. Like I said before, not all changes to the constitution are constitutional.

Amending the constitution does not make it constitutional. That's why we have courts to determine the constitutionality of laws.

[anigbrowl]

70. See this for a more detailed point

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=5723494&mesg_id=5724951

Unfortunately I don't have time to write it all up in 1 place today.

[justanaverageguy]

78. Amending the constitution DOES make it constitutional

The power of judicial review does not extend to the constitution. The USSC, or any other court, does not have the power to review properly passed amendments to the constitution. The only thing that can change a properly passed constitutional amendment is another properly passed constitutional amendment. For example it took the the passage of the 21st amendment to rid ourselves of the 18th amendment (Prohibition). So when the question(s) in front of the SC of CA is simply "was prop 8 properly passed and did it by law amend our state constitution?" and the answer to both of those was "yes" then the court had really only one conclusion that it could come to, and it did so by a 6 to 1 margin.

As properly stated by a previous poster, if the US Constitution was amended to make the Baptist Church the official church of the United State of America, then we would have an official church despite the first amendment. It would not be unconstitutional.

With all that being said; could have the court ruled that Prop 8 violated the 14th amendment and therefore violated the US Constitution? I can see the logic in that argument, however there is no legal ground to make that argument. Likely it would have gone straight to the USSC and probably would have been reversed since the USSC (or any other Federal court that I'm aware of) has never determined that homosexuals are a protected class.

I get your anger, but your position seems to be misinformed.

[readmoreoften]

24. Or it's basically not.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=5723494&mesg_id=5724246

[joeybee12]

10. Other states have specifically ruled for gay marriage because of the equal protection

clause in its state constitution....how can a revision overrule this clause? it can't...it's a no brainer...only Justice Moreno got it right.

[theboss]

16. State courts can go further than the federal courts in interpreting the 14th Amendment

If State Courts want to say that homosexuality is a protected class, they may. The USSC has not done so and California apparently has not done so. And now, it cannot do so because its Constitution says otherwise.

This is high-end Con Law shit. (To use a layman's term).

But discrimination is now embedded in the CA constitution...which is a problem.

The only way to get it out is to say that such discrimination is unconstitutional on a federal level. And that hasn't happened.

The Court here could have said that it was. But, my guess is, that it knew it would be overturned.

[LynneSin]

17. I know this doesn't make sense but it's all based on the bizarro ballot measures in California

The law says that this was done legally even if it wasn't right thing to do.

I still don't understand it, we have nothing like this here on the east coast. And here's the crazy thing - we could win with a new ballot initiative in 2010 but 2 years later it could STILL be overturned by the haters.

The root cause of all evil isn't 6 California Judges, some of them who were upset with their decisions but were interpretting the law at hand (ie - that of the ballot measure). The root of all evil here is a fucked up system that says the California Constitition can be that easily amended by simply receiving 50%+1vote all all the Californians that happen to vote in that election. Consider this:

13million people voted in California's last election which is only 36% of the entire California population and that means 19% of the entire population made a choice to amend the constitution. Now 36 million represents all people in California including those who didn't vote and those under the age of 18. PLUS I know that nationwide only about 55-60% of the population who can vote actually went to the ballot. So I'm guessing of the 13million people who voted there was probably around 8-11million eligible voters in Californa who did not vote. In a nutshell, I guess what I'm saying is it seems that a small segment of California has been given a very powerful ability to change the constitution and something just isn't right with that.

[theboss]

19. Direct Democracy is a terrible idea

Unfortunately, it's pretty much how California works right now.

And you see how well that is working with the budget.

[LynneSin]

21. and recalling the Governor - all that money and the state is no better off

But they have a celebrity as their governor

:eyes:

[fascisthunter]

72. I must say... that's pretty slick.

[jobycom]

14. That's NOT what it ruled or what it said/

First, the CSC did not have to rule that gay marriage is a right--they have already ruled that, as the dissenting Justice Moreno pointed out.

Second, they did not just rule that the law was "legally proper." The question was whether the rule was an addition to the California Constitution, or whether it fundamentally changed it. If Prop 8 was ruled to fundamentally change the California Constitution, it would require more than a simple majority vote; if it were simply an addition or clarification, then a majority could make it law.

So the issue of whether marriage was a right or was constitutionally required to be equal was central to the debate.

The majority ruled that the law was "narrow and limited" in its intent, and therefore was merely an addition. The dissenter argued that it was not narrow or limited, and that it violated previous Supreme Court rulings that marriage was a civil right, and therefore altered the essence of the California Constitution.

The dissenter is completely right, the majority is completely in violation of the California Constitution as interpreted in past Supreme Court cases. The Supreme Court in "Marriage Cases" concluded that "“he constitutional right to marry . . . has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution . . . .” (Marriage Cases, supra, 43 Cal.4th at p. 781.) Prior to the enactment of Proposition 8, the California Constitution guaranteed “this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.” (43 Cal.4th at p. 782.) “In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.”

In short, the California Court argued in a prior case that marriage was a civil right guanteed by the Constitution, and WITHOUT REVERSING THAT DECISION today ruled that banning marriage for some was not a violation of rights or a violation of the Constition.

The ruling is as bad as Plessy v Ferguson or Bush v Gore. It is inconsistent internally and by precedent. In addition to being bigoted, it is judicially wrong.

[ContinentalOp]

18. Now I'm even more confused.

An earlier post said it was an issue of whether 8 was an amendment or a revision, and since it is completely new language, not a revision of existing language, it is obviously an amendment. But you're saying that an addition is a clarification and that a revision is a fundamental change? So basically the exact opposite definitions as the other interpretation? Very confusing.

And how are those previous decisions relevant in this case? They were made before the constitution was amended. I'm so confused by this whole issue.

[LynneSin]

23. Move over - the rest of us are too

Honestly, this whole ballot inititive stuff in California is one giant mess. I can see Prop8 being overturn with another initiative in 2010 but what's it to stop that the Prop8 come roaring back in 2012.

That's just screwed up!

[ContinentalOp]

34. Well, the same thing could happen in any state Legislature too.

We ultimately need the USSC to declare that it's a right don't we?

[theboss]

37. That would be the end of a lot of this

But, I'm fairly certain the exact opposite would occur...which would end a lot of this in the wrong way.

Getting this kind of case to the USSC would not be my objective right now.

[Lex]

41. You mean something like:

'Under our US Constitution, the freedom to marry, or not marry, resides with the individual, and cannot be infringed by the State.'

[theboss]

45. That does not define marriage

So, courts could look to the common law definition...and we are back to where we are now.

[Lex]

48. It does declare it is a right under the US Constitution, however.

nt

[theboss]

51. But what is it?

Marriage is traditionally defined one way. The Courts could just continue defining it that way.

[Lex]

56. It needs no further definition. The one it has now need not change except

to apply to more people.

[theboss]

59. Then why is everyone fighting?

Obviously, the word means different things to different folks.

[Lex]

61. Because the right to marry is being restricted

to only opposite sex couples.

[anigbrowl]

67. Another hair-splitting legal observation here...

'couples' have no rights whatsoever in law. Only individuals do, and individuals can still get married. Not necessarily to the individual they'd like to, if they're gay, but legally speaking you don't have the right to marry just anyone you want to begin with. You can't marry one of your parents, for example. In this sense the legal drafters of props 8/22 have been quite clever - it achieves the effect they want without explicitly mentioning homosexuality at all (something which would probably kill it immediately from a technical standpoint).

Again, it's one of those weird counter-intuitive legal things.

[Lex]

77. That's like saying white people can marry who they want, as long as it's another white person

(of the opposite sex).

This same argument was used to say interracial marriage should stay illegal.

[anigbrowl]

79. Indeed, but note my point about the construction of it

Prop 8 doesn't explicitly mention anyone's sexuality, thereby avoiding a direct conflict with the suspect class. I disapprove, but from a tactical standpoint it was extremely clever of them (the anti-gay crowd), since it exploits this ambiguity on how the law is interpreted.

[anigbrowl]

60. Ah, it looks so simple, doesn't it?

But the thing is, in CA today you can be gay and get married. It's just that you'll have to get married to someone of the opposite sex, because what was amended was not your right to get married but what exactly 'marriage' refers to. Hair-splitting? Of course! But bear in mind that the law gets interpreted on the basis of what it says, not necessarily what that turns out to mean. This is why legal documents are usually so tortuous to read - they're written to eliminate any possible verbal ambiguity, rather than making assumptions about what things commonly mean.

[sandnsea]

28. They banned the word, not the rights

Screwy maybe, but gay couples still have the right to legal partnership in California.

[armyowalgreens]

50. Separate but equal is inherently not equal. Banning the word is wrong.

[sandnsea]

54. So grant equal rights through a different word

Stop using the word marriage in legal documents in California and you've got full equality.

[armyowalgreens]

55. I like the word marriage and I see no reason to stop using it.

[sandnsea]

63. It doesn't grant any rights in California

anymore, but you can sure use it to your heart's content.

[armyowalgreens]

65. How condescending...

But thanks for the thought.

[sandnsea]

73. Not really

I'm sure tens of thousands of couples will be relieved to know they did not lose their California Constitutional Rights today. If nobody tells them they can fight for a procedure to continue extending those rights, how will they know to do it?

[armyowalgreens]

74. Who said that we shouldn't be telling them?

[sandnsea]

75. How is talking in circles helpful? n/t

[armyowalgreens]

76. Okay it's time for you to gather your thoughts again.

Your posts are becoming unintelligible.

Go back and reread and than try again.

[cboy4]

80. You should stop talking so much.

What an embarrassment.

[sandnsea]

25. Except the court did say rights were granted to gay couples

and that those rights have specifically not been removed. The only thing removed is the word marriage.

"We emphasize only that among the various constitutional protections recognized in the Marriage Cases as 8 available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure."

[theboss]

29. But isn't that everything?

Does CA have civil unions written into law?

Again, I don't know the spefics of CA law here, but I read that as saying that the legislature can still vote in favor of "civil unions," not "marriage." (Which is the Obama position, isn't it?)

[sandnsea]

30. They will have to do something to provide the rights

After people settle down and read the fine print, I expect they will get it. If some accommodation isn't made by the legislature for civil unions or something, then back to court they go using this decision as the basis for the a civil rights suit.

[theboss]

35. Right...but that's been the situation all along across the country

There has never been much of a fight over "civil unions." Legislatures can vote those in today...and could probably do so with limited opposition except if the real Bible-thumpin' states.

The question is whether "gay marriage" is the same as "heterosexual marriage."

Under a civil union approach, it is almost certainly not...even though pretty much all the same rights would exist.

[sandnsea]

40. No no, the Supreme Court guaranteed the rights

They have to be granted by some method, 100% equal rights. People need to understand that so they at least get those rights. The court didn't say what word had to be used, so just don't use the word marriage at all.

[theboss]

47. I said on another thread that the word is the issue, isn't it?

Civil unions have always been the easier road for this.

My understanding is that this fight is over the word "marriage."

If all gay people wanted was the ability to form legally binding "couplehood" that would be much simpler process.

[sandnsea]

53. The word is part of the issue, so are the rights

This is an opportunity to use an equal word for all, granting equal rights for all. It can grant full equality, just not through the word marriage. Everybody can gain their equal rights through a different word.

[theboss]

58. That's the Obama position...and I think that's basically my position

But I don't think that people who want "marriage" share that position.

So...I don't know what to tells ya.

[sandnsea]

62. Regardless, the rights have not been banned

There's no denying that. Many will be grateful practically, even if unfulfilled emotionally.

[Occulus]

66. And that's just going to have to be enough for us, especially since

heterosexual marriages really don't have anything to do with emotional satisfaction with a legal status.....


.....right, sandnsea?

[sandnsea]

71. No, but feel free

to misinterpet all you want.

[anigbrowl]

49. In these threads, ppl need to distinguish between state and federal supreme courts

and constitutions etc. A lot of the dicussion about this is falling into confusion because people are referring to 'the constitution' or 'the supreme court' without being clear about whether they're referring to the California or federal constitution/court.

Yes, I know it's confusing. I'm just suggesting that specifying which institution you're referring to will make it a lot easier for people to understand the point you wish to make.

[ColbertWatcher]

68. "no USSC case has made homosexuality a protected class." Exactly.

I've been trying to say this for a while now.

I tried to start a conversation about people who are "invisible" in regards to the Constitutional.

The rights given to one American should be considered everyone's, but even if it "doesn't", the 9th amendment should suffice.

However, that is simply not the case.

There are too many people who claim if one "type" of person is not specifically covered by the letter of the law those people's rights can technically be ignored.

Those people are the ones I call "Constitutionally invisible".

Another thing I've been saying for a while is that even though the GOP no longer controls Congress or the White House, they still control the schools, the media and the courts.

I guess we really do still have work to do.