SanFranciscoSentinel.com reports:
A marriage equality group asked the California Supreme Court in San Francisco today to remove from the November state ballot an initiative that would ban same-sex marriage.
Equality California argued in a lawsuit filed directly in the high court that the measure would be a state constitutional revision, not an amendment, and would therefore require more elaborate procedures for passage.
A few quick thoughts (I'm on a trip and can't get into as many details as I'd normally like):
1. Under the California Constitution, the initiative can be used for "amendments" but not "revisions":
[Art. XVIII, § 1.] The Legislature ..., two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution ....
[§ 2]. The Legislature ..., two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution....
[§ 3]. The electors may amend the Constitution by initiative.
[§ 4]. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.
Comparing section 1 with section 3 shows that, while the legislature may either propose an amendment or a revision, the initiative process may only propose an amendment and not a revision. And Raven v. Deukmejian, 52 Cal. 3d 336 (1990), confirmed this.
2. The proposal to allow only same-sex marriages is likely to be found to be only an amendment, not a revision. Raven struck down an initiative that would bar the state courts from interpreting the state constitution in a more defendant-friendly way than the federal constitution is interpreted, as to a wide range of constitutional provisions. (Generally speaking, state prosecutions must comply with both the state constitution's bill of rights and the federal bill of rights, and while states often interpret state constitutional rights the same way as the U.S. Supreme Court has interpreted the analogous federal right, they also have the power to interpret the state rights more broadly.)
The court stressed that the proposal made "such far reaching changes in the nature of our basic governmental plan as to amount to a revision," because it "involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution," as opposed to only dealing with one specific right:
In effect, new article I, section 24, would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect. As an historical matter, article I and its Declaration of Rights was viewed as the only available protection for our citizens charged with crimes, because the federal Constitution and its Bill of Rights was initially deemed to apply only to the conduct of the federal government....
Thus, Proposition 115 not only unduly restricts judicial power, but it does so in a way which severely limits the independent force and effect of the California Constitution....
It is true, as the Attorney General observes, that in two earlier cases we rejected revision challenges to initiative measures which included somewhat similar restrictions on judicial power. In In re Lance W., 37 Cal.3d 873, 891 (1985), we upheld a provision limiting the state exclusionary remedy for search and seizure violations to the boundaries fixed by the Fourth Amendment to the federal Constitution. In People v. Frierson, 25 Cal.3d 142, 184-187 (1979), we upheld a provision which in essence required California courts in capital cases to apply the state cruel or unusual punishment clause consistently with the federal Constitution.
Both Lance W. and Frierson concluded that no constitutional revision was involved because the isolated provisions at issue therein achieved no far reaching, fundamental changes in our governmental plan. But neither case involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution....
3. And the two cases that I've found in other states that dealt with the same question have likewise concluded that an opposite-sex-only marriage initiative was an amendment, not a revision: Bess v. Ulmer (Alaska Supreme Court, 1999), and Martinez v. Kulongoski (Oregon Court of Appeals, 2008). Bess, in particular, expressly applied California precedents (though with a minor change that doesn't seem relevant here), and concluded that the opposite-sex-only marriage initiative was an amendment, not a revision: "Few sections of the Constitution are directly affected, and nothing in the proposal will 'necessarily or inevitably alter the basic governmental framework' of the Constitution."
4. That the proposed amendment would cut back on the scope of a state constitutional right shouldn't affect this analysis, or otherwise make the amendment unconstitutional. As the two cases cited and distinguished in the Raven excerpt quoted above show, the amendment process may be used to cut back on the scope of a state constitutional right as well as to add to the scope of such a right. (State constitutional amendments of course can't be used to cut back on the scope of a federal constitutional right, but the California Supreme Court same-sex marriage decision rested solely on the state constitution.) One point of the state constitutional amendment process is to make sure that the scope of state constitutional rights is decided by the voters in the state, not just by the seven voters on the state supreme court, especially since those seven voters themselves derive their constitutional authority from a document enacted by a majority vote of the states' voters.
5. All this goes to the merits of the constitutional question, but what about the timing? May this "impermissible revision" challenge be raised before the election, or must it wait until the voters approve the amendment (if they do indeed approve it)? It seems like the preelection challenge would be allowed here. As the California Supreme Court has put it (emphasis added), "'[I]t is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity.'... [But] '... this general rule applies primarily when a challenge rests upon the alleged unconstitutionality of the substance of the proposed initiative, and ... the rule does not preclude preelection review when the challenge is based upon a claim, for example, that the proposed measure may not properly be submitted to the voters because the measure is not legislative in character or because it amounts to a constitutional revision rather than an amendment.'"
6. There have been some other constitutional arguments raised about the constitutionality of the proposed amendment; I hope to speak to them later, but likely not this week, because my opportunities for blogging will be limited (and chiefly focused on the Second Amendment case).
In any case, the precedents quoted seem reasonable to me. I guess some people's worries about the California Supreme Court "imposing" rights are somewhat premature...
For some reason, when I saw "the difference between an amendment and a revision," what popped into my mind was "Duck! Rabbit!"
Do I have to worry that someone will find a reason to make me no longer married too?
At last, the sinister endgame is revealed!
That prohibition only applies to criminal penalities.
Also, the amendment is silent on what happens to marriages solemnized prior to November. That question will likely be litigated (assuming the amendment passes).
Only marriage between a man and a woman is valid or recognized in California .
All other "marriages" would be void under CA law.
All other "marriages" would be void under CA law.
Certainly, but as jrose notes, that's going to be litigated. It seems to my admittedly untrained eye that couples whose marriages are voided have a pretty good argument that voiding their marriages is a violation of the Contracts Clause.
But when did "an understanding" become part of the law?
(My personal favourite: The Tadic case before the Yugoslavia tribunal, where Tadic argued that the Security Council was ultra vires when it created the tribunal. No one really expects the court to agree with that, but it's still interesting to see what they say about it.)
In this case, if I understand you correctly, you're offering the argument that there is a Constitutionally (Federal) relevant difference between not ever having SSM and having SSM and then taking it away. Cool! (I have no idea whether such an argument might fly, unfortunately.)
The contract clause has been dead since the early 1930's, when the Supreme Court said it was okay to stay foreclosures. The name of the case escapes me now. I don't believe there has been a successful contracts clause case since then, though.
So yes, there is a very significant difference between finding a right to same sex marriage in the Constitution as opposed to protecting an existing state right to same sex marriage.
If that's not the distinction between a revision and an amendment, than what is?
'Mommy, Daddy says I can't take the car out Friday night even though you said I could... Make him stop!'
Can't you just smell the fear? The petulance?
I wonder how the court will decide? I think they'll side-step the issue for fear of pitchforks.
I want the value of my marriage restored. It just has not been the same since those pesky judges got in the way.
Since that decision, my wife just is not the same.
lol
LA Brave, are you saying that it would be legal to have an amendment creating same-sex marriage, but not an amendment abolishing it? Are there some amendments that cannot be repealed under any circumstances?
Don't bet on it. The Court hates the People. In their view, it's their job to rule, it's the people's job to follow. They'll do anything to prevent that Amendment from becoming law. Theirs is a high and lonely destiny.
Sorry. But that's too clever. Marriages are being entered into with the understanding that there is a fundamental right under the California Constitution to marry. It's absurd to expect people to put their marriages on hold because an initiative will be on the ballot in a few months and may pass. In that case, if the amendment doesn't pass, I am sure there will be another one and another one and another one after that. Are all rights on hold until this is resolved?
Show me one example where a contract was invalidated becuase the parties knew (and it's unclear when that knowledge actually became clear...when the measure was discussed? when it got enough signatures? when it was officially approved to be on the Nov. ballot?) that there was a chance that a law might pass that might invalidate the contract. Come on, bro. Pull it together.
Moving the fear-o-meter to Orange isn't going to work here. Sorry.
Let's talk about how Democratic these initiatives are? Starting step by step:
(1) People stand outside of grocery stores, claiming to have you sign something about "saving the enviroment," and then slip in this anti-gay-marriage sheet (or some other cause) that you sign willy-nilly. (I've seen it happen several times; I've gotten into arguments with these paid-per-signature liars).
(2) It gets put on the ballot. Often with some counter intiative that has deceptively similar language as the other one. No one knows what they are voting on. Does this give more money to Indian tribes or less? Is this an increase in term limits or a decrease? Is this more money or less?
(3) People check a box. Often unclear what they voted on or the ramifications. Often deceived about what the REAL impact of their vote is. Often deceived about WHO is backing the amendment. Innocuous names like "Lovers of Constitutional Freedoms" or something are used to adorn the "Vote Yes" pamphlet explanation. "Oh that sounds good" says John Doe "I'll vote for that."
That's not democracy. Sorry. It's just not. Or if it is, it's why we live in a republic because pure democracy just doesn't work.
There is a difference. If a change to the constitution is considered profound enough (i.e., meets the tests that Eugene discusses above), then it can only be made via revision (a more onerous process). If a change does not rise to that level, it's an amendment, and can be achieved by initiative. If this amendment would be a revision, then the initiative would not be enought to effectuate it.
See?
Of course if some gay couple wants to try anyway, there's nothing the gay-rights movement can do about it. But although I agree with the argument in substance, there's now way SCOTUS, as currently composed, would ever agree.
You see 5 justices finding a compelling government interest in taking away the right to marry from same sex couples in California?
Mario Savio's words echo down through the decades:
Good thing the Justices in California have to face the voters periodically. This wouldn't be the first time they've gone too far and the people have had to take corrective measures.
That's not democracy. Sorry. It's just not. Or if it is, it's why we live in a republic because pure democracy just doesn't work.
Heh. That's quite an about face in short paragraph, first it's not dmocracy then if it is, it's pure democracy.
"That's not an orange. But if it is an orange then it is the most perfect orange possible."
I kind of think the problem is that you don't like the some of the results of democracy, not that you don't like democracy itself.
Of course that's MPP's problem. After all, what got him all riled up was my correct statement that the Court views itself as Masters and the People as followers. And then he proceeds to rant that the Followers are making stupid decisions that are better left to the Masters.
Thanks for making my point, MPP.
It is not likely the true will of the people (for reasons explained). If that is how democracy (the process) is destined to work (people get duped into voting for things they don't understand), then it's severely flawed because people aren't putting in the effort needed to make democracy (the concept) work.
Something that people fail to point out is that in a true democracy to pass an initiative it should require a majority of the people. IT DOESN'T here. It only requires a majority of the VOTERS. That's a minority of the population. So the argument that "the people want x" or the "people want y" is bogus. The people, as it were, DON'T CARE and don't vote.
What's more, the gay marriage initiative is only at risk becuase the people who vehemently oppose are more likely to vote than the people who are indifferent (i.e., don't care one way or another about gay marriage). The latter group, the live and let lives, aren't affected directly, so their incentive to vote is lower. So, in the end, it's a MINORITY of the population who would be imposing its will on the rest of us (and more directly, on a super minority population--gay people).
Any response?
No doubt then, the voters of California will vote the whole Court (or at least the majority) out of office at their next election.
Or maybe not. Don't hold your breath.
But that has nothing to do with the fact the state is contemplating a law change. Your argument has shifted from contracts are somehow weaker when they are made with the knowledge that the law might change, to now, where you are saying that contracts can be invalidated by law change. They are distinct points, and I think you know that.
While the former point you made is most clearly wrong, the latter is, indeed, debatable. It's an interesting question and we'll have to see. The problem as posed is whether or not the contracts clause has anything to say about this (contracts clause problems arise in your marijuana scenario, too, by the way--so that's not as clear of a question as you might think). It's especially interesting to ask whether or not a contract based on a fundamental right can be invalidated retroactively. I don't think the answer is as clear as some of you want it to be.
Also, it's not about an individual's "thinking" something is a fundamental right. Gay marriage is a fundamental right. Please don't play fast and loose with language here.
Your facile court-as-master-people-as-follower rhetoric is ineffective. People weren't told to do anything follwing the In re Marriages decision. You can continue living your life unaffected. NOthing's changed for you. You don't have to accept gay marriage.
What you (and others) are made about is that fact that the Court has protected a minority from the will of some people (who you will wrongfully consider a majority) to oppress it. You see, DangerMouse, it is YOU who wants to assert your tyranny over others, not the Court.
I have an idea, though. Why don't you just worry about your own life. I'm sure there's something salvageable in it.
Then the Court will force hetero couples to become gay.
Finally, the Court will outlaw all abortions if they are the result of alien butt babies.
It is all part of the ploy . . .
We don't know. You would think so, but it's not completely clear.
One interesting consideration is this. The proximity of this amendment and the legalization of gay marriage is really close, so people haven't invested much in their marriages at this point (maybe). But imagine this amendment came in 15 years. Would an amendment be able to dissolve a married couple? With kids? A family? Property? Seems unlikely. If not then, then why now?
Also, there are other arguments people may not have considered. There are religious implications. Many assume gays are not religious, but that is not so. Maybe a gay person believes in marriage once and forever. If I get married and my marriage is invalidated, then the government is essentially forcing me to violate my religion if I get remarried again (to the opposite sex, let's say). I don't know if that will go anywhere because the restriction is neutral (not meant to target a religion...see, e.g., Peyote-smoking Indians).
(IANAL)
An interesting question. I wonder if the entire state decided to just punt and declare all "marriages" downgraded to "Civil Unions" if the Federal Government would then not recognize all these heterosexual civil unions? That would be disaster for international couples and create all sorts of inheritance issues. Military members would lose their marriage allowances. 30+ million Californians will get to see what it's like to have their "marriage" disappear as they cross state lines.
While it's amusing to imagine people boiling in a soup of their own making, I really wouldn't wish this on anyone.
It's definitely possible. It's possible that the if the amendment passes, the COurt will say, fine "marriage is between a man and woman," then marriage itself is unconstitutional. The amendment doesn't say anything about marriage being constitutional or required to exist.
The In re Marriages decision definitely makes this point nad it might have been in anticipation of this amendmnet.
Brah ha ha ha ha Braahaahahaahaa. (evil laugh).
If the people of California voted for same sex marriage, I'm sure you would consider it valid and binding until the end of time. That's one of the problems, the elites keep trying to tell us that we can vote yes, but we can't vote no.
Corneilian,
Maybe the people will toss a few justices overboard, maybe they won't. They've done it before and it changed the character of the court for over a decade, making it much more conservative. Even those that don't care much about gay marriage can detect an abuse of power if the Supreme Court decides its judgement on gay marriage can't be challenged by the people.
Yes, they were. The People were told that a Constitution that was enacted more than 100 years ago by the People of the State of California meant to provide a fundamental right to homosexual so-called "marriage" even though at the time homosexual activity was a felony. I didn't realize that the People were so adept in doublethink.
You can continue living your life unaffected. NOthing's changed for you. You don't have to accept gay marriage.
I don't? Well then, I guess I'll start an adoption agency. Oh, wait, that'll affect me. Maybe I'll run a dormatory for married couples in college. Oops! That'll affect me too. Maybe then, I'll just become a wedding photographer. Wait, nope, that'll get me also.
Moreover than that, homosexual "marriage" is another example of cultural degeneracy. It affects the culture I live in. Homosexual "marriage" basically destroys motherhood and fatherhood, and hence, destroys family. It says there is nothing important in having both a mother and a father for children.
What you (and others) are made about is that fact that the Court has protected a minority from the will of some people (who you will wrongfully consider a majority) to oppress it. You see, DangerMouse, it is YOU who wants to assert your tyranny over others, not the Court.
I suppose then that the polygamists and the necrophiliacs and the bestialitsts have similar claims for protection, then?
What was that I said again? Oh yes: "Homosexual "marriage" basically destroys motherhood and fatherhood, and hence, destroys family."
Once again, you prove me right. I can't believe you're really making these logical mistakes on purpose. Come on, admit it. You're a parody, right?
First, the wording of the amendment strongly suggests that it applies to all marriages, whenever solemnized. It would include past, present and future marriages whether they took place in California or elsewhere.
Second, you are incorrect about 'ex post facto' only applying to criminal cases. It is true that the 'ex post facto' *clause* in the constitution only applies to criminal cases but the 'ex post facto' clause is only part of the Constitutional prohibition on ex post facto laws. Another part is the "impair the obligations of contracts" clause, which prohibits the type of ex post facto civil laws discussed here.
I don't? Well then, I guess I'll start an adoption agency. Oh, wait, that'll affect me. Maybe I'll run a dormatory for married couples in college. Oops! That'll affect me too. Maybe then, I'll just become a wedding photographer. Wait, nope, that'll get me also.
Whether there is gay marriage or not, a law barring discrimination against gay people (a type of law that has been passed all over the country) would still apply. The case about Catholic Charities is always interesting, because they never forbade gay adoptions until the Mass. Supreme Court decided in favor of gay marriage. Interesting timing, eh?
As for what hurts families, lots of things do. Poverty and hunger impact families. Parents who work long hours impact families.
Lastly, how does gay marriage impact my relationship with my parents?
In Wilson v Ake, a federal district court applied rational-basis review. So did another federal district court in Smelt, although the 9th Circuit Corut of Appeals vacated the decision on the grounds that California courts should have the first say.
People often sign contracts that allow external events to terminate the contract. It would really be wrong for a court to extend a contract when it is supposed to be terminated.
Maybe so. But it's vague enough that litigation after the vote, rather than a pre-vote facial challenge, will decide the issue.
Another part is the "impair the obligations of contracts" clause, which prohibits the type of ex post facto civil laws discussed here
I suspect marriage will be viewed as a public grant rather than a contract in this context.
There are provisions for terminating a marriage contract: principally death or a divorce decree. Indeed, marriage is an unusual contract in that the parties cannot terminate it. As long as the parties survive, only courts may do so.
Should the measure pass, the courts may void the existing marriages. I can't imagine that they would do so because the parties' reliance on the contract was tenuous. Certainly there is no provision in these marriages that they are tentative.
It seems to me that if the amendment is not retroactive, then there is an interesting equal protection issue. Isn't there a special equal protection rule for discrimination based on grandfathered status that involves a fundamental right?
If the Amendment passes, homosexual "marriage" is no longer a "fundamental" right under the California Constitution.
Live by the sword, die by the sword.
But marriage is a fundamental right under the federal constitution. If the amendment passes and is not retroactive, then the test to determine if a marriage is valid will be different for the group of people who married before the amendment than for the group who married after the amendment.
Right. Marriage is a fundamental right under the federal constitution. Fake, so-called homosexual "marriage" is not.
Unless you can point to me the Supreme Court case which says homosexual "marriage" is a federal right?
Then you have the Court's holding, which seems to say that "marriage" is an institution that is inherently and fundamentally a union of two persons regardless of gender, so that "straight" and "gay" are just adjectival modifiers of the same institution. Sort of like the "red" ball and the "blue" ball.
So which understanding would the constitutional amendment actually address? Does it say that "marriage" is a distinct institution separate and apart from "gay marriage" (which will continue to exist albeit perhaps not with legal recognition)? Or does it say that "marriage" is an institution for which discrimination against a certain class is acceptable?
I remember some years ago in Southern California, one of the local governments passed an antidiscrimination statute with respect to sexual orientation--and this wasn't a particularly liberal place. In no time at all, a referendum was placed on the next ballot to overturn this--and the courts intervened, prohibiting it from even coming to a vote. The people weren't even given a chance to vote on it.
If there is anything that best typifies homosexuality's attitude about government, it is the totalitarian fear of the masses.
On the other side, a majority of nine unelected judges, none of them residents of, or voters in the state of Colorado, decided that there was no rational basis for that constitutional amendment limiting governmental power.
You know, if we were talking about an argument between several judges in D.C., and a few dozen state legislators, you might argue that perhaps those judges were more rational than a somewhat larger group of state legislators. It is certainly plausible (even likely) that any given Supreme Court justice is more intelligent and sensible than any given member of a state legislature. Maybe even enough more so that a majority of the Supreme Court is more rational and intelligent than a majority of a state legislature.
But when a majority of nine judges decides that it is smarter and more sensible than a majority of more than a million people--it just shows the arrogance of the judiciary.
This all boils down to this: homosexuals want to feel normal, something that will never happen, so they use their control of the judiciary to force everyone else to pretend that they are normal.
Those signs that said, "recriminalize sodomy" that were visible in San Francisco a few days ago--those should worry homosexuals. But this insane need to feel normal is going to take an idea that was pretty well dead, and bring it back to life.
I know that this is just more hysterical rhetoric, but it brings to mind an interesting question. How many of those more than a million people do you think have read anything even remotely scholarly in the last year? Heck, how many of them have read anything that could be described as non-fiction literature in the last year? How many of those more than a million people can recite to you entire plot lines of Desperate Housewives, ER, American Idol, etc? I mean, when we have an entire show devoted to showing that the average American is not smarter than an elementary student! And yet the idea that the members of the judiciary, who actually do regularly use words with more than three syllables, who probably read more than they watch TV, might be a bit more intelligent when it comes to legal interpretation than the average voter is somehow arrogant???
Same sex? At least those are in the same species! I saw an interesting show last night that featured a "marriage" of garlic and caramel in a sauce for fish!
The voters of California would understandably respond by putting an initiative on the ballot to declare that no one may be forced to marry against their will. The ACLU would file suit arguing that the fundamental right to marry who you wish would be violated--and then they would point to the large number of marriages that had taken place in the interventing few months.
Homosexuality, individual freedom: pick one.
Any government powerful enough to prohibit discrimination against homosexuals is also powerful to require it. Right now, you know that this isn't likely, because homosexuals are so powerful. But you have created a dangerous precedent: that there are no limits to governmental power, and nothing is outside the realm of governmental authority to control in the pretended public interest.
What happens if the majority ever gets in control of the judiciary? Do you worry about the prospect that 3% of the population might suddenly find itself on the losing end? It has happened before (in fact, throughout most of the last few centuries). Homosexuals, in their pursuit of unlimited power over the government, have created a dangerous precedent for when the pendulum swings back.
Again, hysterical rhetoric aside, I have to shake my head at the anti-intellectualism that seems to be running rampant in this country. Damn right I'm smarter than a fifth grader, and proud of it! Since when is it a disgraceful, shameful thing to actually have an education and have a mind and actually know how to use it? Maybe Kurt Vonnegutt really was quite prescient...
I say this because if the court takes the concept of marriage out of the realm of contracts completely, the Contracts Clause would not apply to save an existing same-sex marriage in the event that the initiative passes.
One thing that is still in marriage law, though, is mutual and free consent. So I can't take Clayton E. Cramer's objection seriously -- a marriage can already be voided (not just terminated with a divorce but rendered a nullity) under California law if it is demonstrated that either party's consent was not freely given.
The idea of The Vast Homo Conspiracy never fails to crack me up. How on earth did those power-mad gays manage to take over all of our institutional structures with no one (save a few Volokh commenters) noticing?
Why don't you just come out and say you are against Democracy? And don't pretend that you'd be satisfied with Representative Democracy, because you know very well that legislators are morons too. People complain that it's unfair to call the Courts elitist, or that they're our Masters, etc. But then when you crap all over the ability of the People to be Sovereign, why complain about the Court?
Or maybe you prefer a Monarchy? Or Oligarchy? Perhaps a Theocracy, with Obama as your Messiah?
What does that have anything to do with it? It's a worthless arguement. You only make it so you can equate homosexuality with beastiality and that doesn't reflect well on your intelligence.
Freedom, Clayton's value judgments about what is worth selling; pick one.
And you assume that anyone that disagrees with you is ignorant, and should therefore be overridden?
So why are you so sure that this notion of freely entering marriage can't be "improved" as well?
You think homosexuality is okay, but necrophilia and bestiality are wrong. What makes them wrong? That you find them "icky"?
Let's turn this around: imagine if California's Supreme Court had decided that the people of California didn't have the legal authority to create "civil unions" (which they did at the same time they defined marriage as "one man, one woman"). I'm sure that you would be sputtering up a storm right now.
So, Oren, are you saying that Justice McReynolds was arguing that same-sex marriage was one of the "privileges long recognized at common law"? Even homosexual sex wasn't recognized as such.
Not at all, but the idea that a million minds are inherently more capable and more intelligent than nine is flawed...
Since when do words have a set unchanging meaning? Language is constantly evolving, constantly changing, constantly developing as the society and culture that actually uses the language constantly evolves, changes, and develops. Earlier you seemed to be arguing that the Court created a new institution of "homosexual marriage". Now you seem to be arguing that the Court simply expanded the definition. Which one is it?
I'm not necessarily against democracy per se, although I must admit that I would sleep a bit easier if I could know that certain vermin with alarmist tendencies either were restricted in or chose not to exercise their rights to vote! I am very much against this zeitgeist that attempts to elevate the so-called "common man", that exalts mediocrity or even downright incompetence, and that simultaneously disavows and derogates that least sparks of intelligence and accomplishment (with the exception of athletic prowess). You say that you want the People to be Sovereign - do you know the People?
Liberals, on the other hand, have plenty of time to be running the lives of others, and do so.
Are you for real? I don't know that I've ever seen someone create such a plethora of strawmen with such alacrity quite like you before!
False premise leads to false conclusion (then of course add some hysterical rhetoric to distract)! You really are racking up your share of faulty logic on this thread.
Funny...I've read the Constitution and haven't found the word "marriage" anywhere in it. Could someone please point me to the Article that contains it?
Its not flawed at all, its the whole basis of the Iowa markets, community baseball projections, and even something called the free market. The wisdom of crowds has been proven time and again. There is nothing wrong with having strong opinions, but there is a colossal element of stupidity in someone, even a genius, thinking their own opinions are infallible.
Congratulations on showing exactly why most people detest both lawyers and elites. The "I'm smarter and better able to decide how society should run than you b/c I've been to a school" argument is exactly why your hated "anti-intellectualism" is rampant.
Most of those folks you so readily dismiss for being stupid have probably the same opinion of you. Please further elucidate why the nine judges, in a republic, are so much better to deicde fundamental societal questions than the people themselves.
You have a caricature based on what is playing on TV. I thought intelligent folks were supposed to observe the world and the people closest to them, not listen to the inane ramblings of popular media culture.
Do you get claustrophic inside that closed mind of yours?
Instead, we live in a Constitutional Representative Democracy. That means that we elect representatives through the democratic process, and that the representatives create legislation on our behalf. It also means that we have a judiciary whose JOB IT IS to invalidate any law that violates the Constitution. Generally speaking, the constitution is the Highest Law of the Land. The great American idea is to enshrine our principles into the Constitution (free speech, freedom of religion, equal protection, due process, right to vote), and then PLACE THE CONSTITUTION OUT OF REACH OF THE SIMPLE MAJORITY. You see, it is important that a constitution NOT be easily tinkered with by a simple majority. A simple majority, otherwise, can take away any and all rights from a minority class, i.e. Jews don't have a right to an attorney, Blacks can't own property, Latinos can't vote. Or, as in this situation, same sex couples can't enter a civil marriage.
The Constitution is there to PROTECT THE MINORITY from the tyrrany of the majority. And when the majority can amend the constitution (or "revise it") with a simple 50.1% of the vote, then how can the constitution protect any minority?
All of this said, the People do (and should) reserve to themselves the right to amend the constitution with a super-majority (usually 2/3rds).
I'm not accusing you of homophobia, but rather of freespeech-phobia.
You can't be taken seriously. You actually equate gays with pedophilia. Sorry, bro, but pedophiliacs are just as often (if not more often) opposite-sex than same-sex?
I must say. Your obsession with gays and pedofilia is quite revealing.
Uncalled for.
Actually, it makes perfect sense.
Something that people fail to point out is that in a true democracy to pass an initiative it should require a majority of the people. IT DOESN'T here. It only requires a majority of the VOTERS. That's a minority of the population. So the argument that "the people want x" or the "people want y" is bogus. The people, as it were, DON'T CARE and don't vote.
What's more, the gay marriage initiative is only at risk becuase the people who vehemently oppose are more likely to vote than the people who are indifferent (i.e., don't care one way or another about gay marriage). The latter group, the live and let lives, aren't affected directly, so their incentive to vote is lower. So, in the end, it's a MINORITY of the population who would be imposing its will on the rest of us (and more directly, on a super minority population--gay people).
Any response?
You may have seen this before:What you seem to be suggesting is that the consent of those dead mostly at least 100 years in the case of CA should trump the consent of those being governed today. What is being discussed here is the consent of the governed at its most basic level, and their right to change the laws (and constitution) that they are governed under.
I have a question and a comment. First the question:
What did you mean when you wrote:
What pretty much started at the judiciary? Certainly you would not argue that equal protection of the laws started at the judiciary. Or that it is the judiciary who gave itself the job of protecting the minority from the whims and prejudices of the majority. Those things derive from the constitution. Don't you agree?
Now to my comment: You seem to make the point of the Marriage Equality folks that this change in the law is a change in the basic nature of government. I admitted in my first post that the People rightfully reserve that right to themselves. But they do so in the form and process of a Revision; a process that takes greater deliberation, more time, and more votes.
All the Marriage Equality people seem to be saying is that this Initiative is a Revision that the People can make, but by a more deliberative process.
By your logic, we do not have a majority system of government at all--since we have NEVER had a President elected with a majority of the actual vote (as opposed to those voting) and I am including FDR in 1936, LBJ in 1964, and Nixon in 1972.
Likewise, I am unaware of a single member of Congress (except perhaps one running unopposed) who has actually received a majority of the eligible votes in his or her district.
So we aren't even in a representative democracy under your definition--or does your point only count for initiatives and referendums?
You are right! I hadn't thought about the representative aspect.
But the point still stands. All this about the "people's will" or the court imposing its will "on the people" or that the "people have spoken" is such nonsense. The people haven't spoken, because as Hapag explained only half of people "speak" at all and you only need half of that to get an amendment passed. This means that a quarter of the populace in this state decides what laws bind the other 75%, i.e., the actually majority of Californians.
It's a bit frightening.
Yes, we do live in a republic. What we object to is a judiciary writing in rights that aren't outlined, nor were ever intended. Our elected representatives are supposed to make that decision, and if you want a certain right written in, then convince enough citizens to vote for reps that believe the same thing.
The Judiciary exists to apply written law, not write that law themselves.
Your apathy regarding voting should not affect the laws written in. If it's that important, then get off your lazy rear end and vote. Otherwise, it IS the majority.
You mean like a majority Democratic SCOTUS or California Supreme Court? It's been so long, I don't remember.
The people may, by petition, propose specific changes to the language of the Constitution: amendments, to be voted on. This is the initiative process.
Or, the legislature may propose amendments to be voted on.
Or, the legislature may call for a constitutional convention, whose members, elected by the people, will then rewrite the Constition: a revision, to be voted on.
The effort to suppress the proposed amendment by labeling it a "revision" is the sort of cheap legal pettifoggery that elites rely on these days to prevent the people from interfering.
Equality under the law IS in the constitution. Here, the court has observed that it is unconstitutional FOR THE STATE to treat gay individuals and couples differently from how it treats heterosexual indiviudals and couples.
Were you upset when the court held that laws against inter-racial marriages were unconstitutional because the Court was "writing" new law? Of course not! But at the time, inter-racial marriages were against the law. And most people did not approve of them.
Isn't your objection just based on the fact that, on this issue, you disagree with the court? And not really because the court has done something wrong or "anti-democratic."
All I meant to offer was a principled framework to rebut your claim that this decision (or any other decision that dares to take an expansive view of personal liberty) necessarily requires abdicating huge swaths of freedom to the whim of the courts. If we accept that the government has no right to interfere withing a sphere of personal liberty, then we ensure that freedom for everyone.
If gay marriage is so popular and so right, then you would have no problem, I'm sure, with the people voting on it.
BTW, the 14th amendment was intended specifically to rectify discrimination against African Americans, and was passed by the people through the constitutional process, not imposed on the people by judicial fiat. That's the way it's supposed to work.
Literacy is in important skill in any government official, particularly in a lawyer. Californians would do well to make sure that judicial offices are occupied by literate people and should ensure that judificial officers have the ability to read, and are willing to use that ability in the conduct of their office.
Clayton Cramer a week earlier: "It is increasingly clear that homosexuals aren't prepared to live and let live. Perhaps the only option left will be to force them all back into the closet."
That makes no sense. First off, I do vote. Second, it is not the majority. No matter how you slice it. You cannot make the statement that the majority of Californians wanted a given iniative to pass. You can say a majority of voters did; that's fine. There's a huge difference. Just because you call an orange an apple doesn't make it one.
So you can either try and delegitimize people voting for something you dislike because not every person in the state voted... and by the same logic delegitimize democracy as presently practiced everywhere... or you can abandon a clearly losing line of argument.
Since SSM has been allowed for several years in Canada, The Netherlands, Belgium and Spain, please explain how motherhood, fatherhood and the family have been destroyed in those countries.
Oh that's, right, we won't see the effects until decades from now, right?
14th Amendment, Equal Protection Clause.
So far as I know, Turner v. Safley (1987) (right to marry for prison inmates) is the latest case do discuss the issue.