Prop 8 - Question.. if God forbid, the SCoC upholds the law - can it be appealed

[Hawkeye-X]

to the SCOTUS? (Assuming we can figure out how to force 'recusals' of the right-wing fucknuts)?

I would think equal protection clause is going to be key!

Hawkeye-X

[dflprincess]

1. If not the present case then sooner or later a case about Gay marriage

could move from state to Federal courts. Loving v Virginia did.

[glowing]

4. No, not in this format. But if a gay couple sued for marriage equality, then

the SCOTUS could choose to hear the case... But it does take a bit to get there, and then they would have to choose to hear the case. the court needs probably 2 or 3 new Obama appointees before a case will be heard and decided upon. I don't think the congress will be able to do it.

[csziggy]

6. Since part of the case seems to be about the status of the 18,000 couples married before Prop 8

At least as I understand it, if their marriages are declared invalid then they can probably take it to SCOTUS.

[glowing]

72. Yes, that would probably work.. but it would have to be about the people, and not

the technicalities of state law.

[msongs]

2. only if you have MORE $$ than the Mormon church nt

[LeftyMom]

3. No, the case deals with issues relating to the California constitution

not questions of federal law or a conflict between states. The highest authority on California law (with very few exceptions) is the Supreme Court of the state of California.

Federalism 101.

[tonysam]

5. If the California Court Upholds Prop 8,

which I believe it will while at the same time validating the same-sex marriages that took place before the November election, the only recourse is for opponents to put an initiative on the ballot repealing it.

Think of Prohibition. The only way it was repealed was through another constitutional amendment; the courts can't overturn constitutional amendments they are designed to interpret.

I would be very, very surprised of the California court overturns Prop 8; I think it would spark a major recall movement of the justices.

[vadawg]

7. though im loathe to say it the recall would probuably be justified

i am totally against judges overturning the will of the people even if i totally disagree with the will of the people. I would rather be at the whims of the populace rather than the whims of a few.

[Starry Messenger]

8. So which of your rights would you like removed by voters next year?

Let me know, I'm compiling a list.

[vadawg]

10. no problem, what rights would you rather have 9 people decide for you to have

as i said id rather have the populous be able to campaign and vote for changes, rather than 9 robed or beknighted people deciding. i think thats real simple to understand.

[Starry Messenger]

13. Well, deciding that the equal protection clause applies to all of our citizens.

That seemed fair. How about Roe vs. Wade, or Brown vs. Board of Education? Would you like more?

[libnnc]

16. activist judges ending institutionalized segregation...

how DARE they!!!!111

[vadawg]

17. ideally it would be better if the amendments were made, sort of bomb proof them

then we wouldnt be concerned everytime a judge retires etc. as i said id rather let the populace decide the laws of the country than a small group of individuals,

[Starry Messenger]

19. So which of your rights would you like to do without?

I was serious about that list. What is it? Guns? I've always found all the fuss about that amendment silly.

[vadawg]

21. well seeing that guns are already covered by an amendment i think you make my point.

the point being that the citizens should have the right to have amendments to state and federal constitution that are bomb proof to changes by judges, i may not agree with the amendment but its better than having a small number of people decide what rights are. question for you would you be happy if the popular vote in california was reversed only to have it struck down by a panel of judges, no you wouldnt.

[Starry Messenger]

26. Yes, I would.

I'd be fucking thrilled. So I'll get to work on amending our Constitution to eliminating the elements of gun ownership I find burdensome. I think only gay people should own them. There. I think I will start collecting signatures.

[libnnc]

30. LOL

[Starry Messenger]

59. Wouldn't that be stunning?

Seriously though, I've been a little curious since this whole thing began that people worried about the 2nd amendment don't get more worried about this Prop 8 debacle. I posted on it months ago in the gun forum and only got a few germane answers.

[vadawg]

32. on you go and if you get enough people to vote that way

and make an amendment then as i said thats the way its meant to work.

[dsc]

68. amendments can be amended

so would you be willing to let a majority decide to amend the 2nd amendment to read there is no right to bear arms.

[Politicalboi]

78. Yes I too agree with you to a point

But when it involves people lives over who they love it shouldn't be that way. By gays getting married it doesn't tax burden anyone and it can't take someone's life like a gun. I am all for taking guns away it wouldn't bother me one bit. The law was written to protect yourself against government. Well today we would all need nukes in our yard to fend off a government take over. Go take a gun and shoot a tank and see how far that goes. Bang Bang your dead. Prop 187 out here to eliminate money to illegals was a tax burden that we voted for but the same judges overturned it. It had like a 80% favorable vote. But according to the judges that was unconstitutional. Your tax dollars used for people breaking the law was ok with them. You know 9 judges did tell us the outcome of Bush V Gore even though the majority voted for Gore. Prop 8 never should have been put on the ballot.

[Zhade]

43. You don't seem to understand that our rights are inherent and NOT decided by the bigoted majority!

Do you support our equal right to marry? If not, get the FUCK off DU -- you're not welcome.

[vadawg]

52. i guess you havent read were i stated i was against the amendment

so once again im against the amendment, but i think that the citizenry should have an ability to have amendments.

[Zhade]

53. You're FOR the tyranny of the majority. The citizenry DOES NOT HAVE THE RIGHT to take ours away.

Amendment or not.

[LostinVA]

71. A very small group of very rich white guys made that Amendment, not "the people"

But, the will of the people DID approve of Jim Crow, so I guess that was okay with you. They also approved of no interracial marriage. Glad you approved of that, too.

[sohndrsmith]

76. Right. Seems to me one way to clarify this Prop 8 thing is if hetero couples

began to demand equal rights in being able to engage in civil unions. Let them put that in their pipes and smoke it. Would it be unconstitutional to allow "normal" people to engage in civil unions? If so, why?

Maybe I'm confused. Separate but equal is not legit, in my view, but I'm not a CA constitutional scholar so I don't know.

I do think that this might be a good way to make a point. People should storm the courts in droves to have their marriages re-issued as civil unions (since, after all, they provide the "exact" same benefit or formality in the eyes of the law... right?).

I have no idea why this is so complex...

[Zhade]

40. The populace DOESN'T HAVE THE RIGHT to take away our rights!

That's unfuckingconstitutional -- how hard is that to understand?

[vadawg]

42. if its unconstitutional then the court will find that way.

deleted

[Zhade]

50. Bullshit they will. Judges aren't infallible -- sometimes they're bigoted too.

Just ask African-Americans how long it took to get justice.

[jacksonian]

44. tell that to the mob in the street looking for the latest scapegoats

I'll take the robed guys and law. unfettered democracy is almost as crazy as unfettered oligarchy, which is why we have a republic with constraints on wills of masses.

Constraints exercised by judges.

[readmoreoften]

64. Fuck that. My right's aren't up for a vote. Agreeing with that doesn't mean 9 robed

people "give" me rights it means that 9 robed people say that the majority doesn't have the right to take my rights away. Protection of human rights are never put up for a vote. We didn't vote to end slavery or vote to end segregation. The population had to be FORCED by judges. Equality is a higher value than whether every asshole gets to express their batshit crazy opinion of what their neighbors should be doing with their lives. That's not "democracy" that's "a voting fetish".

A nation of people receiving equal treatment under the law is a PREREQUISITE to democracy.

[Solon]

11. Screw that bullshit, civil rights should NOT be put up to a vote, period. n/t

[vadawg]

12. nah we should always allow 9 people to decide what rights we have with no recource to change them

yup there is a lot of emotion about this decision, but if we give judges the power to change the rights we have at their whim, then i think there could be more problems than we can imagine in the future.

[Starry Messenger]

14. They were not changing rights.

They were emphasizing rights for all citizens.

[Solon]

15. Judges already have had that power since, oh, I don't know, about the 1820s or so...

with both bad decisions, such as Dredd Scott, to good ones, like Brown v. Board of Education, Loving v. Virginia, etc.

In almost all cases in this country, it was the courts, not the ballot box, that expanded civil rights to minorities in this country.

[vadawg]

18. and the problem is that judges can also take away rights if they are so inclined

thats why i think its better to get the populous to vote for amendments, you may believe differently but hey thats your right.

[Solon]

20. That's insanity, first off, when it comes to federal amendments...

its not up to populous vote, but rather 3/4ths of the States, and is hard as hell to do. Second, on State Amendments, some of them are too easy to pass, such as Proposition 8. I do not trust the whims of the majority to favor rights for any minority. You might, but history shows you to be dead wrong.

[vadawg]

23. History also shows that people who put power into a fews hands come a cropper.

[Solon]

27. First off, that power is limited to interpreting the law or testing its validity...

with a particular document, usually a Constitution, of a state or the federal government. Second, you seem to be extremely ignorant as to how this process works.

[vadawg]

31. okay then educate me

all i say is that if the vote meets the standards under the law, the people vote one way, then the judges shouldnt be able to reverse that vote. Whether i agree with it or not.

[Solon]

33. "standards under the law" and who interprets whether this was followed or not?

Let me take a wild guess here and say JUDGES.

[vadawg]

35. jeez you are being obtuse, ill say it again if the vote is legal

then it should stand, real simple. but judges should not have the power to decide if amendments meet their litmus tests, as long as the law was followed ie how you set up the ballots, voting days etc then the citizenry should have the ability to do amendments.

[Solon]

36. The Judges don't set the standards, the Constitution does...

Whether of California or the United States, that is the "litmus test" judges use. You make it sound as if Judges do this type of stuff on a whim, when that is not the case, most of the time, and when it is done on a whim, the appeals process takes care of it, 9 times out of 10.

[vadawg]

37. i think we are at cross purposes here, ill try to term it differently

i disagree with the amendment, but i think that amendments and the process is a good thing, i dont want to see the amendment struck down due to some finageling, id rather see a new amendment that codifies rights. does this make sense.

[Solon]

38. Anyone who dismisses any judicial oversight as "finageling" should really just shut up now....

seriously, shut the fuck up and peddle your ignorance elsewhere.

[vadawg]

41. okay ill let you take away my rights to speech, thats cool i dont think you are capable

of understanding what im trying to say, not sure if its the language nuances or what but hey thats life.

[Solon]

45. Where the fuck did I take away your right to free speech?

Seriously, you are so ignorant of the law and how the process works you really can't be a real, are you? I mean, no one is this stupid, outside of Freepers that is.

[vadawg]

47. ah the last refuge accusations of being a freeper. i simply have a disagreement with you

[Solon]

51. A disagreement that's based purely on your ignorance of how Judicial Oversight works in this...

County, who the hell do you think you are fooling here?

[Starry Messenger]

49. Rights of speech?

Seriously? Did you grow up in this country, get educated in its schools? I'm actually curious here. This seems totally alien to you.

[vadawg]

54. nope not an american by birth, but by choice so my language usage is slightly different

[Solon]

55. You language usage is fine, I would have pegged you as an American by birth...

from your position on this thread, usually its natural born Americans that are this ignorant, not paying attention in Civics class, as it were. Most naturalized Americans have a better grasp of our system as a result, you are an exception, apparently.

[Starry Messenger]

56. Ok, well that explains a few things.

Might help to read up on our form of government before you stick an oar in next time. It's nice you choose to make this your home, but there are good reasons why we have things set up the way we do. The religious groups that put this on the ballot made the same argument you are making.

[vadawg]

57. lol no problem i guess i kinda worded what i was trying to say wrong

i wasnt trying to offend, im just very anti judge trust even though i work in the law (not california though)

[Zhade]

48. You think that the bigoted majority voting to take away a minority group's rights is okay?

NT!

[Zhade]

46. The Constitution of this country DOES NOT ALLOW FOR MINORITY RIGHT TO BE TAKEN AWAY BY THE MAJORITY.

Learn what the fuck the Bill of Rights says before you embarrass yourself further -- and continue to look like a bigot hiding behind erroneous, misinformed ideas of judges' roles.

[Starry Messenger]

29. That's why we're all dead now.

Oh, totally.

[Zhade]

39. Um, thanks. That's how we lost our right to marry -- the bigotry of the many.

NT!

[LostinVA]

70. So, then slavery and no voting rights for women would be okay with you?

And yes, that is what you're saying.

I am not the least bit surprised to see you post garbage like this.

[LeftyMom]

25. Not really.

There are some serious legal questions regarding it's legality. There are two standards for passage of an initiative, depending on whether it is a constitutional revision or amendment, and some question remains about whether the initiative, which only met the lower standard, was one or the other.

[vadawg]

28. ill defer to your knowledge on this

my issue is i am uncomfortable with judges being able to overturn votes that garner a majority as long as the vote is within the states rules, phew if that makes any sense.

[LeftyMom]

34. The question is whether or not the vote was consistent with the state constitution

which is written the way it is precisely to protect minorities from the tyranny of the majority. There are limits on the application of direct democracy for precisely that reason.

[Hosnon]

63. Not if one can successfully argue that Prop 8 violates the United States Constitution,

most probably (if anything) based on the Fourteenth Amendment.

No State can have a Constitution that violates the U.S. Constitution.

[Angleae]

77. The CA constitution can be declared unconstitutional.

SCOTUS can hear arguments that prop 8 and the amendment it creates violates the US constitution and as such can be struck down.

[crimsonblue]

9. nope

This is a state matter and SCOTUS has no jurisdiction.

[flvegan]

22. Ultimately, couldn't the argument be made that the CA state constitution is, in part

unconstitutional as to the US Constitution, thereby forcing this issue to the federal level, ultimately landing at the feet of the SCOTUS?

I'm on my second beer. That might not have made any sense.

[vadawg]

24. lol i understood what you were getting at

[Renaissance Man]

58. Regarding Constitutionality

Marriage is something that's defined by state law (and therefore restricted to the States). Trying to have the SCOTUS decide issues of equal protection or assert judicial review on a state law cause of action (marriage) codified by state law breaches federalism.

If marriage were a federal institution (and not an issue of state law), then Equal Protection would apply and a reasonable SCOTUS would strike down Proposition 8.

[flvegan]

60. Why does the Dept of the Treasury define "marriage" then?

Via the IRS tax code?

[Hosnon]

62. What do you mean by "breaches federalism"?

The Supreme Court of the United States can strike down just about any state law that violates the United States Constitution.

All the SCOTUS has to do is find that Prop 8 violates the Fourteenth Amendment and Its striking it down would be warranted.

[Thothmes]

73. What happens if the current court finds that Prop 8 is

a state issue and decides not to hear the case, or hears the case and decides that prop 8 is constitutional.

[Hosnon]

75. Then the SCOTUS has decided Its position. I believe the original question

was whether the U.S. SCOTUS could possibly overturn the California SCOTUS. I think the answer is "yes"...but, of course, the ability to overturn the state decision does not mean It necessarily would decide against Prop 8.

[Hosnon]

61. I think so, yes. An obvious example would be if a state constitution prohibited women from voting.

Through the Fourteenth Amendment, all things are possible. Amen.

[TWiley]

69. Great example ..... thank you

You would make a fine lawyer

[Hosnon]

74. Not sure if the you left off the sarcasm smilie...

But for the sake of my ego, I'll assume you didn't.

[shimmergal]

67. I don't think we'd want it to

go to the SCOTUS, at least not with the present makeup of that Court.

Since the California Supreme Court found the case _for_ marriage rights so compelling just a few months ago, and their reasoning was based on the state Constitution, wasn't it? -- it's hard to see how they could turn around now and say "Oh well, forget all that." That's what allowing Prop. 8 to stand would do. Doesn't leave the court with any intellectual integrity at all.

'Course it could well happen. This case is really, really, scary--how many other of our rights could be cancelled by some group of kooks financing a propaganda blitz? There are polls showing a majority would vote against the Bill of Rights.

[Hippo_Tron]

65. Sure it could be, but I doubt they would hear the case

15-20 years from now there will be a serious challenge in the federal courts as to whether state bans on gay marriage are a violation of the equal protection clause. But not in 2009.

[t0dd]

66. All the times I've seen the "Yes on 8" people celebrate their "victory"

has truly disgusted me. It's bad enough you want the second-class citizenship of your fellow men and women, who just happen to be gay, to persist, but to have the audacity to smear it in disgusts me to no end. I will say this: it may not be today, and it may not be tomorrow, but their day is coming.

Let's work now to get an initiative on the 2010 ballot to repeal prop 8! It's just over a year and a half away.