Just had a Prop 8 debate — and, boy, is my brain tired

[Oeditpus Rex]

I got into it on Facebook with a guy who's apparently a strict Constitutionalist. He maintains that anything in the Constitution (U.S. or state) should not be "amended" by judicial fiat. I say the purpose of high courts is to interpret the constitutionality of laws and rule accordingly.

It was a tough argument because he and I obviously disagree on the role of the courts and the Constitution. He didn't play any of the typical cards like "Adam and Steve," so I couldn't merely call him on his bigotry.

We'll almost certainly meet again, so anyone have ideas on what I could use as a knockout punch?

[rpannier]

1. Interpretation is not amending

Next time ask this dimwit if he supports Brown v. Topeka Board of Education. Because it "amended" the "Plessy v Ferguson" decision.

[Oeditpus Rex]

5. That's the kind of stuff I need

I don't have encyclopedic knowledge — hell, I don't have matchbook knowledge of "landmark" court decisions. I could use a few links, or just cases; I can google 'em myself.

[sampsonblk]

11. Huh?

The OP is talking about judges amending the constitution, not amending previous decisions, which happens all the time.

Having the USSC repeal Plessy is not the same as having the USSC repeal the first amendment, for example.

[Idealism]

2. If the civil rights of minorities were put up to a vote

we would not have the civil rights act passed in the South. We would still have segregation in some states school systems and inter-racial marriage would still be illegal in parts of the country.

All men are created equal ring any bells in his Constitutionalist ears?

[pnwmom]

3. I'm confused. Where in the Constitution does it say that marriage

can only be between a man and a woman?

[Oeditpus Rex]

4. The California Constitution has said that since Nov. 5

That's pretty much the entirety of his argument: It's in the Constitution, so judges shouldn't "amend" it.

[pnwmom]

6. If we could curtail the rights of a minority by a simple majority vote,

where would be be today? Back in the days of slavery?

[Oeditpus Rex]

7. There are people who think that'd be a pretty good deal

If not slavery, certainly segregation.

This guy may be one. I don't know yet.

[pnwmom]

8. The key legal question to be decided in the case of California

is whether Prop. 8 was an "amendment" or a "revision" of the Constitution. If it was a revision, then the Constitution itself says it can't be revised by a simple majority vote. Therefore, Prop. 8 would fail.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/03/MN6I16807P.DTL&type=politics

Instead, advocates of same-sex marriage argue that Prop. 8, by withdrawing fundamental rights the court had sought to protect, assaulted the state Constitution itself.

One of their claims is that the measure was not merely an amendment but a revision of the Constitution, which can be placed on the ballot only by a two-thirds legislative vote or by delegates to a new state constitutional convention.

The court ruled in 1948 that a ballot measure that would have changed 15 of the Constitution's 21 sections was an invalid revision. In 1990, the court overturned a section of an initiative that would have set aside the state Constitution in criminal cases by limiting defendants to their rights under the U.S. Constitution.

But the court has rejected similar challenges to such far-reaching ballot measures as Proposition 13 of 1978, which rewrote California laws on tax increases; the 1990 initiative that set term limits for legislators and state elected officials; and the 1972 constitutional amendment overturning the court's decision earlier that year striking down the death penalty.

[Oeditpus Rex]

9. Gee, look who's speaking on behalf of hate:

Proponents: Kenneth Starr, representing Protect Marriage, sponsor of Prop. 8, will have one hour.

Further evidence of California's sewage problem: The turd didn't flush.

[pnwmom]

10. Yeah, that's no surprise. But Jerry Brown surprised a lot of people

when he recently came out against Prop. 8 -- even though, as State Attorney General, he was expected to defend it.

http://www.latimes.com/news/local/la-me-gay-marriage20-2008dec20,0,3628665.story

Brown's argument on Proposition 8, contained in an 111-page brief filed at the last possible moment before the court's deadline, surprised many legal experts. The attorney general has a legal duty to uphold the state's laws as long as there are reasonable grounds to do so. Last month, Brown said he planned to "defend the proposition as enacted by the people of California."

But in his filing, Brown, who personally supports same-sex marriage, offered a novel legal theory to back his argument that the measure should be invalidated.

The California Constitution protects certain rights as "inalienable," Brown wrote. Those include a right to liberty and to privacy, which the courts have said includes a person's right to marry.

The issue before the court "presents a conflict between the constitutional power of the voters to amend the Constitution, on the one hand, and the Constitution's Declaration of Rights, on the other," Brown wrote.

The issue "is whether rights secured under the state Constitution's safeguard of liberty as an 'inalienable' right may intentionally be withdrawn from a class of persons by an initiative amendment."

[AntiFascist]

13. Here's what I don't get...

No one was defending the people of California in this case. Brown decided that he couldn't defend the proposition because it wasn't constitutional in the first place. The SCoC allowed third parties to argue in the case, but they only represented the Yes on 8 organizations, which were largely funded by out of state organizations and mostly a few wealthy religious conservatives in California. For the SCoC to argue that the people have the inalienable right to amend the constitution really would seem to be an activist decision motivated by politics more anything sincere or fair, in other words they fear that they might lose their positions through recall.

[damonm]

12. You could

ask him how he squares the denial of marriage rights to Gays & Lesbians with the Equal Protection clause of the 14th Amendment. How is it that the rights, privileges, et.al.of marriage are given to different-sex couples, but denied to same-sex couples if the 14th Amendment is to be upheld?