My question to those who support Proposition 8

[JDPriestly]

The U.S. Supreme Court determined in Loving v. Virginia that the right to marry is a fundamental right.

Yesterday, Starr argued before the California Supreme Court on behalf of Prop. 8. He proposed that voters may withdraw or bar a fundamental right by a simple majority vote.

My question: Do you suppose that we could, by a referendum vote or proposition vote withdraw or bar the right to bear arms? I realize that the U.S. Supreme Court has ordered that the Second Amendment guarantees the right to bear arms (which may like any other right be regulated), but if both marriage and the right to bear arms are fundamental, couldn't we by majority vote ban, let's say, assault rifles or handguns if we wanted to?

I'm not suggesting that I would favor banning rifles or handguns or that I personally would even vote for such a measure, but, in theory, if we can outlaw gay marriage which has been deemed by our state's highest court to be a fundamental right, couldn't we ban the other?

And how about freedom to worship? Could we just vote to ban that too?

[OmahaBlueDog]

1. I hate to say it, but under current California law as I understand it- yes

So if you wanted to put a state ammendment on that was not interpreted to conflict (in the opinion of the Federal courts) with the Federal Constitution, you could do so. I don't think gun banning could fly, but a Flag Burning amendment to the California Constitution might pass Federal Muster.

This is one of the good points of the Federal Constitution: it is relatively hard to ammend.

I think that, no matter how Prop 8 turns out, California ought to seriously look at overhauling the referendum system.

Full Disclosure -- I don't support Prop 8; I don't currently reside in California (although I was born there and I have lived there); I chose to answer anyway.

[Xithras]

2. Technically, you could do exactly that in California

Which is why we have a two-tiered court system. The current focus is to overturn this locally by declaring the election invalid. Doing that not only eliminates the law, but effectively declares that it NEVER WAS the law in California.

If the California courts don't overturn it, Prop 8 becomes part of the state Constitution. At that point it can be challenged in federal court, where it will probably be overturned because of the precedent set in Loving v. Virginia. The problem is that, in the interim, the law is valid...and all current gay marriages will be voided. That's why shooting it down in the state courts is so important.

Californian's COULD pass laws banning religion, guns, or even the enjoyment of fresh air if we really wanted to. Like Prop 8, doing so would be a waste of time, because the federal courts WILL eventually overturn the bans.

[katanalori]

3. my understanding....

is that voters CANNOT put a measure on the ballot that would take away rights guaranteed by the U.S. Constitution, i.e. FEDERALLY guaranteed rights. However, the argument that the pro Prop H8 side makes is that the votes CAN (and DID) change the STATE Constitution by a majority vote. It is on this basis that it is (sadly) not looking good for reversal of the amendment's passing. I could be wrong on this, but that is what I am gleaning from the arguments.
Also sad is that the funding to get prop h8 passed came from out of our own State, namely Utah (Mormons) and Colorado (Focus on the Family). Oughta be a Law about other States sticking their noses and their big dollars into our business. Many who voted YES on this measure actually believed the numerous TV ads that claimed homosexuality would HAVE to be taught in grade school, and other inane lies.

[Bluenorthwest]

4. Some of the funding was from out of state

but millions came from Californians, and millions of them voted for it, and millions of others sat on their thumbs promoting laws about chicken coops while they allowed this travesty to happen. I'm sorry, but California needs to take responsibility for what it did. California passed PropH8.
Only Californians can correct this wrong.

[JDPriestly]

7. In the portion of the hearing that I heard, as I recall, the justices were discussing

questioning Starr about whether the voters could to deprive a protected class of a fundamental right. I'm sorry, I don't have the link to the excerpt that I heard.

[pnwmom]

5. Why don't we just simplify things and ban the Republican party?

They're a minority in California, after all.

[JDPriestly]

8. Great idea! Or ban the Mormon and Catholic religions.

They won't mind since they are the proponents of the idea that a majority could deprive protected classes of fundamental rights through a simple vote.

[pnwmom]

9. You do realize there are thousands of Catholic DUers, don't you?

And there are millions of Catholics who support gay rights, including millions of Catholic GLBT. (My father and his partner among them.)

And that Obama won the election in large part because the Catholic vote swung his way?

The Catholic Church is made up of millions of people, only a tiny fraction of whom comprise the hierarchy. Please don't paint us all with the same brush.

[JDPriestly]

11. I'm not suggesting getting rid of Catholics, just of the Catholic church, and I am not serious.

I am joking. Sorry if you misunderstood. I believe that the majority religion in California may well be Catholicism.

[JDPriestly]

12. I edited this as follows:

Sorry if you misunderstood. I believe that the majority religion in California may well be Catholicism, so such a proposition would not be passed.

I add: Courts and attorneys sometimes test arguments by discussing hypotheticals -- saying sort of, well if what you are arguing is true then situations such as x, y, z are similar and would also be true. A hypothetical can be used to test a legal theory. The hypothetical permits the court to separate the specific facts at issue in the case before the court from the legal principle being applied and then test the principle on other facts.

A hypothetical can be used, for instance -- as I was trying to use it -- to demonstrate the absurdity of a legal argument. My hypothetical was intended to ask whether, if a majority vote can deprive a protected class of a fundamental right to marriage, it can also deprive a class that we pretty much all view as protected -- people of a specific religion -- of their fundamental right to freedom of religion.

Some responded to my hypothetical by pointing out that freedom of religion is expressly guaranteed in the U.S. Constitution. They seemed to argue that freedom of religion is therefore different from, perhaps owed a greater respect than, the fundamental right to marry.

In Loving v. Virginia, the U.S. Supreme Court held that states could not bar interracial marriage because marriage is a fundamental right even though it is not expressly guaranteed in the U.S. Constitution. The right to marry is a natural right that exists without being mentioned specifically in the Constitution.

I still believe that following Loving v. Virginia and assuming that gays and lesbians are a protected class (an assumption which the California Supreme Court has accepted, but that the U.S. Supreme Court might reject), then it would follow, unless a court finds that the government has a compelling reason for denying gays and lesbians the right to marry, they have the right to marry.

I strongly disagree with those who argue that if gays and lesbians have the right to marry then humans could marry animals and we would have to allow marriages of underage partners without parental consent. In my view, a court would have difficulty finding a compelling reason to bar gay or lesbian marriages, but would not have a difficult time finding a compelling reason for barring marriages between underage kids without parental consent or between humans and animals.

Sorry if this is too long and my writing is pretty clumsy. I am writing this late at night and I am tired.

[slackmaster]

6. The federal constitution does not contain a provision for amendment by referendum

The California constitution does.

BTW - Measures to ban handguns have been put on the California ballot by initiative twice in my memory. Both efforts went down in flames. There was even one to legalize marijuana outright, Proposition 9 IIRC. It lost too.

[Fire_Medic_Dave]

10. I'm pretty sure supporting Prop 8 will get you banned here. That was my understanding of the rule.