Justices seem to be leaning in favor of Prop. 8

[jannyk]

Source: SFChronicle

The California Supreme Court, which last year declared the right of gays and lesbians to marry, appeared ready Thursday to uphold the voters' decision to overrule the court and restore the state's ban on same-sex marriage.

"There have been initiatives that have taken away rights from minorities by majority vote" and have been upheld by the courts, said Chief Justice Ronald George. "Isn't that the system we have to live with?"

George wrote the majority opinion in the court's 4-3 ruling in May striking down California's ban on same-sex marriages - which voters, in turn, reversed in November by approving Proposition 8, a constitutional amendment defining marriage as being only between a man and a woman.

Christopher Krueger, a senior assistant in Attorney General Jerry Brown's office, also urged the court to overturn Prop. 8, saying the equality and individual liberty at the heart of last year's ruling were "inalienable rights" that should not be subject to a majority vote.

The court seemed unconvinced. Justice Carol Corrigan said Krueger appeared to be arguing that people may amend the Constitution "unless they do it in a way that this court doesn't like."

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/05/BALP169S2G.DTL&type=news

---

Lots of reading and commentary at link. Decision still up in the air - still hoping for the 'right' decision. but it's looking iffy.

[comtec]

1. *JAW DROPS!*

:wow: :wow: :wow: :wow: :wow: :wow: :wow: :wow: :wow: :wow:
:wtf:
what
the

FUCK

happened to my state!?

[Bluenorthwest]

5. What happened?

Apathy happened.

[haele]

11. No, threats of recalls happened.

And probably threats of excommunications, also. The churches that have backed Prop H8 have already pretty much announced that they would promote protests and recall drives of any justice they could get to if their pet "amendment" was struck down. We had the same situation with Justice Rose Bird back in the lat 80's, mid 90's - that actually moderate judge was hounded into early retirement with threats of recall drives for her "radical liberal agenda" of trying to apply level headed fairness for the most part to justice.
Even though there's a clear implication of violation of church and state with this proposition and the actions of it's backers, as well as title 9 implications, it's difficult to find anyone who is immune to that sort of intimidation.

Haele

[tonysam]

42. Think Rose Bird

Recalls WILL happen if the justices overturn it, but threat or not, the justices won't anyway, because Prop 8 is part of the Cal constitution. Only another initiative can overrule it.

My prediction is it will be a split decision: Prop 8 stays, but the couples who married during the period between the court's previous decision and the November elections will still be regarded as legally married.

[Le Taz Hot]

43. You know what?

That works BOTH ways. Any justice voting to uphold Prop H8 should also be targeted for replacement. Further, I have one word for churches who fund bigotry: Transparency. Let's open their books and challenge their tax-free status. If they're getting through via loopholes, hold legislators' feet to the fire and close the damned loopholes. The GLBT community AND their supporters are every bit as powerful as the church-sponsored bigots.

[closeupready]

23. I don't know, but it's tragic.

Really. :( But the reality is that California is sucking more and more.

[WillParkinson]

2. "There have been initiatives that have taken away rights from minorities by majority vote" and have

What rights have been taken away from an entire group of people? Please, sir, tell me.

[slackmaster]

10. Proposition 209 would be the most classic case of it

Basically killed classical Affirmative Action, prohibiting public institutions from considering race, sex, or ethnicity for jobs, contracts, college and university admissions, etc.

http://en.wikipedia.org/wiki/California_Proposition_209_(1996)

[Maat]

39. Different legal issue.

There were not taking away a fundamental right there; consideration of one's race for admission to college is not a fundamental right.

Here, this is a clear case of the tyranny of the majority.

If they follow constitutional principles, they have to overturn this proposition.

If they don't overturn it, this Californian and law school graduate will know that they are caving in to political pressure.

[slackmaster]

56. Thanks for the response

In the oral arguments, the counter to the claim of marriage being a fundamental right was that the right of the people to amend the state Constitution is also a fundamental right. I don't have a clue how you would weigh one against the other.

[Maat]

58. The right to marry will win out, in my humble opinion.

There really isn't a fundamental right to amend a constitution; that's just the current law that won't be weighed as highly as the law involving a fundamental right.

Anyone disagree?

Thoughts?

[GinaMaria]

61. If amending a constitution is a fundamental right

it is not an equal right, or equally applied right across states. Doesn't each state have their own process for this? Doesn't this vary by state constitution or state law? If it's a fundamental right, then separate would not be equal, correct? Just a thought.

[Maat]

62. I've never seen such a right recognized.

You are quite correct, in that there are many holes in the idea that the people have some fundamental right when it comes to a constitution.

[AngryAmish]

14. As much as it pains me, I agree that once the amendment is in, then it is in

You just have to pass another amendment.

Let me start from the premise that I know little about California constitutional law, so any arguments or missed facts come from ignorance, not malice.

This amendment is morally repugnant. But to argue otherwise says there is a set of law higher than the constitution - this is a natural law argument. If this is accepted then the constitution of California actually says is irrelevant - it is what the justices think is all that matters., That is tyranny.

If this amendment is bounced because of conflicts with other parts of the Constitution then the Constitution is unamendable - and since the document says itself it is amendable there is a contradiction there.

Before the 16th Amendment the income tax was considered a taking - and government can't take property without compensation. Then the US constitution was amended allowing the income tax. What if folks then said that the income tax was a taking - it was taking away the property without compensation?

[Hassin Bin Sober]

19. The issue at hand is not whether it CAN be done but HOW it can be done.

A two thirds majority is not much to ask to take away civil rights.

No?

[slackmaster]

24. Simple

Start a petition to put an initiative on the ballot, to amend the Constitution so that a supermajority vote is required to amend the Constitution by initiative.

They try to get more than half the voters to agree to give up the power they have under the current system.

[Hassin Bin Sober]

27. I guess I should have been more clear.

I don't agree that this was a simple amendment to the constitution. It was a revision requiring a two thirds majority of the legislature. Nothing needs to be changed.

[slackmaster]

28. Arguments made and examples cited by the pro-8 side pretty well torpedoed that view IMO

But I am not a lawyer, and the Justices may see it differently than I do.

[Hassin Bin Sober]

34. I wondering then why you think there is still hope or a 50/50 shot at overturning 8?

It seems to me that's the only chance.

[slackmaster]

36. Beating it would have to hinge on equal protection

Not on the question of whether or not the issue should have been placed on the ballot in the first place, which is the essence of the "revision" argument.

[Hassin Bin Sober]

37. I see. That would require a trip to the USSC. No?

[slackmaster]

46. I don't believe so

Homosexuals are not a protected class under federal law. They are under state law (at least in regards to discrimination in employment, etc.)

[Hassin Bin Sober]

50. I don't think you need to be a protected class to argue equal protection, do you?

[slackmaster]

51. Not really, but it couldn't hurt

:D

[AngryAmish]

26. Is there a part of the Cali const. that says you need 2/3 to take away civil rights?

If so then this has to go. If not, simple majority rules. Good idea, tho.

[Hassin Bin Sober]

29. The issue is whether this was a major "revision" requiring a two thirds majority of the legislature.

....or an amendment that can be done by simple referendum by voters.

The same court already ruled gay marriage was a fundamental right under the constitution.

[slackmaster]

32. The discussion of what constitutes an amendment vs. a revision was lengthy and inconclusive

The term "revision" is not defined in the Constitution, but to me it appeared that the Justices regarded the term as referring to a fundamental change in the structure of the state government.

[AngryAmish]

38. see - my ignorance is showing

Maybe I'll shut up before I embarrass myself further. Cheers.

[Renew Deal]

49. It depends on what the court thinks is a inalienable right.

The 2/3 majority argument seems to be the weaker of the two arguments.

[Hassin Bin Sober]

17. What I don't understand is why is THAT particular point even being brought up?

It's clear the "people" can vote away minority rights. The issue is whether they need a SUPER majority, or not, to do so.

The justices needn't take away the people's voting rights to hold them to the super majority standard in what CLEARLY was a major revision to the constitution.

Chief Justice Ronald George's reasoning here is that the marriage RIGHT did, in fact, exist. My question to him would be: Do we plan on subjecting ALL rights to a SIMPLE majority vote?

[GinaMaria]

60. and the courts are there to make sure this kind of crap

is reversed. These justices need to remember two things. One that their title contains the word 'justice' and separate is not equal was a court decision.

This crap just makes me sick :puke:

[bluestateguy]

3. Let's be ready with a new ballot initiative to re-legalize gay marriage

Generational demographics are on our side. Voters under 35 are overwhelmingly pro-equality. Every day that goee by is another day that more old farts who voted FOR Prop 8 succumb to Father Time.

[NorthCarolina]

4. I suspect the next move for the fundies will be to submit legislation

to require more than a just a "simple majority" to pass such initiatives affecting the State Constitution in the future. If successful, a "super majority" may be hard to obtain in any attempt to repeal Prop. H8 for decades to come.

[TechBear_Seattle]

6. The initiative process is established in the state constitution, not by statute

The irony is that they would be forced to submit a constitutional revision, which can only be put before the voters by the Assembly and not by petition.

[slackmaster]

12. I suggest doing it immediately rather than waiting for "old farts" like me to die off

Please don't rely on the political winds to always blow one direction in California. History clearly shows that they do not.

For the record, I'm 51 and strongly opposed Proposition 8.

[AlbertCat]

7. Are they gonna let Californians decide or religious nuts from Utah?

Just askin'.....

[slackmaster]

13. Utahans can't vote in California

We have plenty of our own religious nuts here.

[AlbertCat]

18. They may not be able to vote...but they can pay up.

[slackmaster]

20. Yes, we California voters are all mind-numbed robots who do what our TV tells us to do

:eyes:

[No Elephants]

30. Advertising has no influence. That's why so many pay so many millions for it, whether they are

looking to sell a product, elect a candidate or pass a ballot initiative. Riiiight.

[slackmaster]

33. Pardon my sarcasm - I was a campaign manager for a city council candidate last year

Yes, whoever spends the most money advertising very often wins. Not always, but most of the time.

It's not right. It's pretty damned frustrating, and it ensures that those in power stay in power, and when they are term-limited out they can usually choose an Heir Apparent who will be virtually assured of victory.

People are by and large mind-numbed robots who are far too easily influenced by advertising. I'm pretty much immune to it myself. (I scored just 18% brainwashworthy on the Would You Have Been A Nazi Test.)

http://helloquizzy.okcupid.com/tests/the-would-you-have-been-a-nazi-test/

[La Lioness Priyanka]

41. 52% of you are. nt

[Le Taz Hot]

44. Gay marriage legal in NY is it?

n/t

[La Lioness Priyanka]

45. i am not saying that other states are better or worse. just that people are influenced heavily by

advertising.

i think squablles about what states are better are a bit infantile and stupid.

[Le Taz Hot]

47. Me too.

It's why I responded to your post. :eyes: People in glass houses, don't 'cha know . . .

[La Lioness Priyanka]

48. whatever. since you are hell ben on misconstruing my post, i could care less

:eyes:

[Ms. Toad]

8. The cases had solid legal reasoning -

based on the declaration of the Court that marriage was a fundamental right, which might have bumped the change made by prop 8 into one that would have had to be achieved by another means than referendum - so I had hope. Still do. But I knew it was an uphill battle with no better than a 50-50 chance of succeeding.

Time to start working on a petition drive to put a repeal on the ballot as soon as possible. . . she says, knowing that she is not in California to do the legwork.

[slackmaster]

15. Other than that assistant AG stammering, both sides presented strong cases IMO

I'd call it a coin toss at this point.

[Ms. Toad]

21. Good.

(At least a lot better than I could tell from the linked news report). And I agree with a post downstream - you can't really tell where the justices will end up from the questions asked.

[slackmaster]

9. I listened to most of the arguments, and would not be so quick to glean the justices' positions

They're a cagey bunch, and when they sit down and really start looking at the issues in depth and reading the amicus curiae briefs, they might come out on the right side in the end.

[Nye Bevan]

16. The problem is that it is too easy to amend the California Constitution

Imagine how disastrous it could be if the US Constitution could be amended by a simple majority vote. I guess the writers of the California Constitution did not have the same genius as the Founding Fathers.

[slackmaster]

22. The amendment process can be changed

By amending the California Constitution. ;-)

Good luck getting a simple majority of the voters to agree to give up their power to change it by simple majority.

[Ms. Toad]

25. That's the problem with most state constitutions.

Ohio's is a disaster, from a legal perspective, since it is easier to amend the constitution by popular vote than to make a law. Lots of yahoos have taken advantage of the ease with which their pet missions can be put in the constitution. Unfortunately all of this poorly crafted junk (many of them multiple pages long) is treated with more weight than a law when they run up against each other in court.

Constitutions should be those principles that are most important, generally few, and rather general so that the details of how to implement those principles can be changed more easily without requiring an amendment . . . Hmm . . . maybe like the US Constitution.

[Maat]

40. Exactly!

Unfortunately, this amendment process was decided long before I could vote.

[No Elephants]

31. So, these justices would have no problem with the required majority repealing the

13th Amendment, or re-instituting Jim Crow laws? I don't know how you live with yourself if your reasoning allows results like that. At the same time, I understand that they don't feel a few people sitting on a bench can override 2/3 of the voters. Rough case.

[Tim01]

35. Telling people who they can or can't marry is stupid.

Not to mention a big waste of time and resources.
Don't like gays? Don't be gay. How tough is that?
These busybodies give me a headache.

[Runcible Spoon]

52. Disgusting. Rights should NOT be legislated away at the whim of well-heeled bigots

:grr:

[John Kerry VonErich]

53. Delicense marrage

Get rid of marrage licenses and the "privilidge shield" will be no more

[Sultana]

54. Damn, California

*shakes held

[fascisthunter]

55. They'll Wish they Over-turned Prop 8

this isn't over by a long shot... it will just empower more people to fight this.

[RexDart]

57. My logic as to why it should be overturned.

It's simply a matter of equal protection. I don't think Prop 8 made mention of those that are already married. If 8 is upheld (gods forbid), then you not only have rights that are not offered to a group, but you have different rights to members of _that same group_. Unless the plan is to go back and strip away that also, but I can't think that would fly.

On the other hand, sometimes I wonder if I'm really that smart.

[Downtown Hound]

59. Well, new campaign to fight

And fight it we will. Those justices are going to one day regret their decision. Mark my words.