the lawsuit filed by opponents of Prop 8 last week arguing that the measure was an unconstitutional "revision" of the state constitution rather than an "amendment."

So one hopes for a strict-constructionist interpretation from the Cali Supremes?


IANAL: Is there some sort of legal limit on irony in cases like this?

Of course they're interested. Who doesn't like a second chance to annoint yourself king and pass the laws you see fit? What judges wouldn't love to tell the people that they know better than them not just once, but twice.

My feeling is that the California Supreme Court's request is routine. In California practice, one may petition for a writ requesting extraordinary relief, and then the Supreme Court asks for a response.

As for the earlier question, the California Supreme Court take the view that there's no sense reviewing an initiative before it passes, because there's really nothing to decide.

I should finally add, perhaps, that the California Supreme Court is not all *that* liberal. Beside, its justice have to face the voters regularly for an up-down vote a la Rose Bird and her allies.

What about the following do the cali supremes NOT understand? The Courts ARE NOT in charge. The People are in charge.

For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.

Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6

Dominus providebit

Calling on the AG to state its position hardly qualifies as being "interested" in the case.

Am I missing something here? If they are to decide the exact same thing (amendment vs revision), doesn't their prior refusal to hear the case set some sort of precedent, at least? This is weird and one heck of a way to "legislate."


Refusing to hear a case isn't the same thing as ruling against that case on the merits.

What about the following do the cali supremes NOT understand? The Courts ARE NOT in charge. The People are in charge.

You'd have a better argument if you didn't rely on a quote from Blackstone who was talking about a jurisdiction which has no written constitution, no Bill of Rights type limits on governmental power and, by the way, no ballot propositions.

Dale, given the high profile of the case, I wouldn't read much into the court requesting a response before deciding whether to take it. The action does indicate the case is getting more attention than the typical case, but we have all known from the beginning that this was not a typical case.

ForWhatItsWorth, in cases of this type, the court has the discretion to hear the petition or not. When initiatives are challenged on this ground before the election, the usual course is to wait for the election. After all, if the voters nix it, there will be nothing to decide. Turning the petition down at the preelection stage does not preclude a fresh consideration of the issue postelection.

Kent, thanks. I just think that they should have heard it in the first place. If nothing else, "if it passes," and it is really questionable whether it should be there in the first place, you would save alot of angst on everyone's part if you did it straight up.

They could have saved a tree and shortened the form..... and not have alot of people waste their time voting for or against something that won't fly anyway. :)

There was a challenge on the issue of revision vs. amendment well before the vote. The CA Supreme Court decided not to hear the challenge

Here in Washington state we have a guy who has turned the initiative process into a cottage industry. His initiatives have been found unconstitutional several times BUT the courts will not rule on them until they have been passed. The jist is they can't evaluate hypothetical law, only rule on law that actually exists, and from a practical stand point it would be a killer way of tying up the court by putting forward flawed law on purpose if they had any obligation to pre-vet it.

It would be odd not to ask the AG for views on a matter touching the constitutionality of a state enactment, whether by the legislature or through initiative. In the federal sysstem and in many states the courts are required by statute to refer questions of the constitutionality of statutes to the AG

Ron, no. That would be an amendment as well, and it could be put on the ballot and passed the same way Prop. 8 was.

They've stood for it multiple times, gasman: the death penalty, the exclusionary rule, reciprocal discovery, and a host of others.

Maybe it would be a little easier for the non-lawyers to frame the issue like this:

If the court hears the case, the ultimate question is whether Prop. 8 actually passed and became law. Deciding whether it's an amendment or revision is merely a step on that path because the answer to that question determines how many votes the proposition needed.

If they had taken the case prior to the election, the only question would have been "what is it?" Courts typically won't engage in those sort of games (aside from the occasional state supreme court with advisory power) because there is no real controversy at that point--it's merely an academic exercise. Their decision would have had no real-world effect. Post election their decision would have an effect because at that point the courts have to decide "what the law is" (i.e., can we have married gays?)

Let me see if I understand this - Obama wins (which I think is very bad for my country) and I have to live with it and deal the best I can because the 'people have spoken'. But if the California people vote to define mariage as between one man / one woman - then potest, take to the courts and cause general disruption until you get your way - To hell with the 'people have spoken' garbage.

Isn't there some way to recall a Cal. Sup. Ct. justice before his or her term expires? Or am I misremembering this?

There is precedent for overturning constitutional amendments that take away protections previously established. A historical analogue in California to Prop 8 could be 1964's Proposition 14, which was designed to overturn the Rumford Fair Housing Act(now Government Code Sec. 12955 et. seq.) The Act provided that landlords could not deny people housing because of ethnicity, religion, sex, marital status, physical handicap, or familial status.

The California Real Estate Association sponsored Prop 14, which would have overturned the Act. Prop. 14 passed nearly 2 to 1. However, the California Supreme Court (and subsequently the US Supreme Court) ruled in Reitman v. Mulkey 387 U.S. 369 (1967). The California Supreme Court argued that not only did Prop. 14 repeal the Rumford Act, but involved the state in affirmatively in discrimination. The US Supreme Court agreed:

The judgment of the California court is . . . that (Prop 14) unconstitutionally involves the State in racial discriminations and is therefore invalid under the Fourteenth Amendment.

. . . (The California Supreme Court) held the intent of (Prop 14) was to authorize private racial discriminations in the housing market, to repeal the Unruh and Rumford Acts and to create a constitutional right to discriminate on racial grounds in the sale and leasing of real property. Hence, the court dealt with (Prop 14) as though it expressly authorized and constitutionalized the private right to discriminate. . . . [T]he court assessed the ultimate impact of (Prop 14) in the California environment and concluded that the section would encourage and significantly involve the State in private racial discrimination contrary to the Fourteenth Amendment.
(see footnote 2 of the opinon for the text of Prop 14, renumbered as Article 1, Sec. 26 of the California Constitution.

So opponents will argue that Prop. 8 will involve the state in affirmatively supporting discrimination (now that the right has been establlished by the state.

I wouldn't read much into this. The basis for the challenge is as important here as the underlying issue, i.e., whether the court needs more of a factual record about the practical effects of the initiative being so extensive that it's a revision rather than an amendment.

The opponents of Proposition 8 should, perhaps, be careful of poisoned bait here. They might err in going for an immediate ruling if they contend that the issues are simple and do not need consideration of evidence, because that might be construed as an admission that Proposition 8 is a mere constitutional amendment.

And everyone should remember that the May decision explicitly did not address the question of whether California had to offer same-sex couples the right to marry, but only whether a statutory scheme that created two identical institutions could have a different designation for same-sex couples. So it did not create or assert a right that Prop 8 took away. If anything, since the court said DP's had to be called marriages, Prop 8 took away DP's that are virtually identical to marriage, since those have to be called marriages, Constitutionally.

The only way out to define DP's so that they are not virtually identical and do not give the rights of marriage. They should be marriage minus conception rights.

John Howard:

Kent and First History, how can you two be so sure in your answer to Ron's question about another ballot question being another amendment as opposed to a revision?

If you're just asserting your opinion, I say you're wrong, because a second ballot question would clearly be changing, rather than adding to, the Constitution as it exists at the time. How could the old one and the new one co-exist together? There's that word "only" that would have to be stricken from the Constitution, which is clearly revising the Constitution.

They wouldn't exist at the same time. A second initiative allowing SSM would strke the language of Prop. 8 and replace it with new language. If you have ever seen a California ballot guide, initiatives frequently re-write and replace existing language. As with Prohobition (another instance of a constitution being used for a social experiment) the 18th Amendment still exists but the 21st Amendment rendered it null and void ("Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.") No doubt any future initiative repeal will be similar.

The use of the word "revision" in the context of the California Constitution is highly techinical. In this context, to "revise" the Constitution would be to reassign governmental functions, such as allowing the legislature to hear criminal appeals. That has to bo through a special process, and cannot be done by initiative. See Profs. Dale Carpenter's and Eugene Volokh's discussion of the distinction. The "revision" position is a long-shot arguement, and will (unfortunately) probably fail.

It would be interesting to see an appeal based on Lawerence v. Texas.

I think one based on Romer is more likely.

Since the CA Supreme Court could have declined to hear the suit (which I understand was filed directly with them) without requesting a response from the AG, the only sure interpretation of this is that they are not not interested in hearing the matter.

Which double negatives aside, does not translate to them being interested in hearing the suit.

John Howard:

Here's the less technical, more correct interpretation: If you're striking something or changing something in the Constitution, you're revising it. If you're adding something to it that has never been in it before, you're adding to it

I don't know if it is "more correct," but not it's not correct according to the California Supreme Court. In Raven v. Deukmejian, 52 Cal. 3d 336 (1990), the court 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. 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."

"[I]n two earlier cases we rejected revision challenges to initiative measures which included somewhat similar restrictions on judicial power. . . . 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...." (The foregoing is adapted from Prof. Volokh's post; the quotations are from the Raven opinion.)

As I have said before, the California Constitution is amended all the time (514 times since enactment (1879); 43 by initiatives; and averages 4 amendments per year.) Unless the opponents of Prop 8 can argue that taking away a fundamental right is the same thing as altering our "basic governmental plan," it will be tough road to hoe. I am not unspympathic to their position, but just trying to be realistic. Your interpretation of "amendment v. revision" won't be controlling, however.

And since marriage equality was already in the Constitution (hence the original ruling) and they are striking it, its a revision.

No, the original ruling did not find that California had to offer same-sex couples marriage or the rights of marriage, they explicitly say they are not addressing that. They are only addressing whether the legislature can establish a statutory scheme that results in two names for the same rights, one for both-sex and one for same-sex couples.

John Howard:

It is an open question whether the "revision" section of the CA Constitution applies to individual rights (as opposed to governmental structure) in California. If you look at Prof. Volokh's post, he links to two non-CA SSM cases that look at the question and determined that the banning SSM is not a revision.

private racial discrimination contrary to the Fourteenth Amendment.

The Supremes have yet to declare queedom to be protected under the 14th. Thus those who live in states and subdivisions thereof that have not legislated queer antidiscrimination laws are free to discriminate.

Dale, as a good libertarian, believes that all antidiscrimination laws are major human rights violations that can (morally) be resisted (if one so chooses) by violence.

Personally, I reserve the right to discriminate against anyone on any basis I damm well choose and since such discrimination is not a crime (only a civil matter) by remaining judgement proof I can tell all you commies to shove it.

Realist Liberal:

This type of lawsuit was filed before the vote. The Cal. Supreme Court followed its standard practice of deferring the lawsuit pending the vote. Now the deferment time has ended.

Thanks for the clarification, but I still don't fully understand why it happened this way.

Why is this the standard practice? It seems extremely wasteful. If they rule that it should have been a revision, then everyone just wasted a ton of resources on each side campaigning over an invalid ballot measure. (Or maybe the measure was valid, but it won't count as having passed because it didn't achieve a super-majority. But this seems unfair to the proponents, since it's conceivable that they would have campaigned harder if they knew they needed to get a larger share of votes, or that some voters would have acted differently.)

It seems much more natural and practical for the court to address the status and validity of a ballot *before* people spend resources campaigning over it and then voting on it.

Dilan, though I'm not a fan of the initiative process, I'd hate to see that adopted as a rule. A critical feature of democracy is that laws are subject to change if the majority can be so persuaded. Lots of laws we now value -- anti-slavery and womens' right to vote to name two -- were introduced repeatedly, failed, and introduced again.

This is probably one of the signs of the Apocalypse -- I agree with Smokey.

Best to just get rid of initiatives, or at least figure a way to keep signatures from being bought by any entity with deep pockets.

It's money, not public support, that gets an issue on the ballot in the first place. Without the money, it never gets to a vote, regardless of how popular or unpopular it may be. That being the case, it's perfectly logical to target the fundraisers.

So, this is more a request for a post than a comment on the one provided:

Is there any reason to think that the California proposition system is anything but a really really bad idea? I would think that any libertarian and most breeds of conservatives and liberals would find the notion of amending a constitution with 50%+1 frightening. We all think there are SOME rights that deserve to be protected against the tyranny of the majority (of course there are substantial disagreements about what those rights are and the extent to which they should be protected, but still). Shouldn't we all hate this system on principle?

Matthew K,

You come up with a way to guarantee that no "Living Constitution" thug in black robes will rewrite the Constitution to suit his or her personal desires, and we'll talk.

Personally, what I think CA needs is a new Constitutional Amendment, that says something like this:

1: Any time a Constitutional Amendment is passed that is counter to a previous CA Supreme Court ruling, every member of the Court who voted for the previous ruling is immediately removed from the Supreme Court, and may never again be appointed to that Court, or any other State Court. This removal to take effect before the Court makes any rulings on the validity, legitimacy, or Constitutional nature of the Amendment.

2: No Court may block consideration by the voters of an Amendment that would overturn a previous CA Supreme Court ruling.

Given a choice between "voter tyranny" and "judicial tyranny", I'll happily trust the voters.

We here in California had a ballot proposition fail for the third time (requiring parental notification before a teenager has an abortion) and I'm sure the proponents of that one will be back to try again.

Obvious question: Why don't the opponents of Prop. 8 follow their example?

Time to demand that the Legislature does its job.

These are the same folks who flagrantly tried to overturn Prop. 22 in direct violation of the state constitution (they have also tried to do an end run around other propositions like Prop. 13). None of our branches of government in California can be trusted to follow the constitution.

Smokey:
Word. Maybe we should start collecting signatures to get a ballot initiative that says no more ballot initiatives.

MarkField:
It's hard, but when Smokey's right, he's right.

Greg Q:
Members of the majority who often voted for segregation and anti-miscegenation laws would agree with you. Oh yeah, and the opponents of gun ownership in DC. Those bastard judges. . .

Bob Van Burkleo,

And they decided they couldn't - so if the state is going to have 'marriage' its about marriage equality as all California citizens have a right to equal to exercise their right to marry.

You got it. Like any other guy, you're free to marry a woman who will take you, and who meets other requirements.

You don't want to marry a woman? That's your choice.

But your likes and dislikes to not qualify you to rewrite the Constitution, or the definition of marriage.

From one of the dissents in the case

Nothing in our Constitution, express or implicit, compels the
majority’s startling conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.
The majority’s mode of analysis is particularly troubling. The majority relies heavily on the Legislature’s adoption of progressive civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage. In effect, the majority gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute. I cannot subscribe to the majority’s reasoning, or to its result.
As noted above, I do not dispute everything the majority says. At the outset, I join the majority’s observation that “[f]rom the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.”

Catch that part? “[F]rom the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.” So much for SSM being a "fundamental right".

Although I respect the populist trinity of the Initiative, the Referendum, and the Recall, my mind boggles at the thought that in California, while a new tax proposal takes a 2/3 majority, the constitution can be amended by only 50% + 1. Is the amount of money the govt. can vacuum from one's wallet really more precious than one's civil rights?

What you're failing to recognize is that the legislature is about a million times more likely to try to raise your taxes than they are to try to take away your civil rights (free speech, the right to vote, the right to assembly, etc.), all of which, btw, are fully protected by the U.S. Constitution.

Bob Van Burkleo: "By not contesting this and merely trying to put artificial barriers in the way of this equality they are most definitely trying to revise a basic tenet of the California constitution."

I think most people will find it really hard to understand how something discovered only a few months ago can be considered a "basic tenet" of a constitution almost 130 years old.

I think most people will find it really hard to understand how something discovered only a few months ago can be considered a "basic tenet" of a constitution almost 130 years old.


Probably the same way that the right to interracial marriage was "discovered" in Perez v Sharp in 1948 despite a ban on the practice as old as the state of California itself.

Interestingly, one of the other statutes discussed in Perez was a statute that prohibited non-whites from giving evidence in court in a lawsuit to which a white person was a party. That statute was just as old as the ban on interracial marriage. Anyone inclined to criticize the "activist" court for disregarding the will of the people on that one? Didn't think so.

Parenthetical:
I very much like your post. Sigh, how did CA end up with this amendment system? It is asking for this kind of conflict.

Cornellian: "Probably the same way that the right to interracial marriage was 'discovered' in Perez v Sharp in 1948 despite a ban on the practice as old as the state of California itself."

At least there is clear evidence that racial discrimination was THE key concern originally underlying the 14th Amendment (on which Perez v. Sharp was based). That makes it plausible that statutory racial discrimination violates a "basic tenet" of that constitutional provision. Any evidence at all that those who wrote or adopted the 14th Amendment or the California constitution had any concern for the rights of homosexuals in mind?

Nutbump

You've proven heterosexuals are great at spreading lies and misconceptions.

I see zero difference legally between a man and woman marrying and a man/man marrying. THe arguement against same-sex marriage is no different than the arguements against interracial marriage.

I'm astounded when people claim there is a difference.

And a man can get pregant, just look up a fellow named Thomas Beatie.

As Dilan has pointed out, we can't continue to mandate funding (or, for that matter, restrict taxes) by constitutional amendment while expecting the Legislature to pass a budget by a 2/3 vote. Nor can we impose ridiculously short term limits on legislators and expect them to perform their jobs like experts. The enemy is us.

So tyranny of the majority is fine when it comes to stealing people's money to fund the welfare state (though the "gridlock" wouldn't be that much different with a Republican governor given his line-item veto power). Eight years for a state senator is the same amount of time that a U.S. president has, so I don't think that term limits are a major factor. I agree, though, that the enemy is us.

I see zero difference legally between a man and woman marrying and a man/man marrying. The arguement against same-sex marriage is no different than the arguements against interracial marriage.
I'm astounded when people claim there is a difference.

And I'm astounded when people claim a similarity given the obvious biological differences as well as other public policy considerations, but just as Justice Scalia predicted, we are sliding down the judicial slippery slope to the logical conclusion of abstract equality.

Eight years for a state senator is the same amount of time that a U.S. president has, so I don't think that term limits are a major factor.

I think there important differences between a legislator and an executive. Nevertheless, two points:

1. The limits for Assembly members are just 6 years. That's way too short.

2. Psychology research indicates that it takes about 10 years to become an expert in something. That research should inform how we think of term limits and what consequences we expect when they're less than that.

So tyranny of the majority is fine when it comes to stealing people's money to fund the welfare state (though the "gridlock" wouldn't be that much different with a Republican governor given his line-item veto power).

I'm not sure of your point here. I'm actually objecting to the fact that spending can be mandated by majority vote, while budgets and taxes require 2/3. That's fiscal insanity, because it ratchets up spending.

I think there important differences between a legislator and an executive.

True, but it's not obvious to me that legislators need much more time to gain the necessary experience to do their jobs.

Psychology research indicates that it takes about 10 years to become an expert in something. That research should inform how we think of term limits and what consequences we expect when they're less than that.

Even if true (and I have my doubts), why do politicians need to be full-fledged "experts"?

I'm actually objecting to the fact that spending can be mandated by majority vote, while budgets and taxes require 2/3. That's fiscal insanity, because it ratchets up spending.

The California government's spending problem is largely the result of the not-so mandatory spending that the legislature likes to dole out during the boom periods of the revenue cycle.

Two things strike me as rather faricical:

1) that the court has "asked for AG Brown's opinion" about the merits of the anti prop-8 lawsuits, when AG Brown is obviously hostile to prop 8 (as evidenced by his claim that prop 8 would not overturn SSM's that formed during the past 6 months, and his brazen re-wording of the prop 8 ballot measure) and thus can't be relied on to vigorously and zealously defend it, and ...

2) the court's obvious intent to overturn prop 8 on the grounds that gay marriage is so-exalted a right that only a revision can erase it - despite the fact that this "fundaemnental, exalted right" never existed in the entire history of the state until the very same court declared it to be just 6 months ago.

Doesn't the California constitution have a clause against self-dealing? Wouldn't we all be appalled if, in any other aspect of our lives, the institution empowered to rule on our appeal was the same institution that punished us in the first place?

Even if true (and I have my doubts), why do politicians need to be full-fledged "experts"?

Because we want them, like anyone else, to do their job well.

The California government's spending problem is largely the result of the not-so mandatory spending that the legislature likes to dole out during the boom periods of the revenue cycle.

There's some truth to that, but without quibbling about the details, I don't see how it affects our discussion. All I'm saying is that the initiative process shouldn't be allowed to contribute to that problem.

This reasoning says that the California constitution cannot be amended to ban SSM because the California constitution prohibits bans on SSM.

Reasonable - first you'd have to change the constitution to allow some citizens to have special rights that are proscribed to others. You know, like only giving Republicans freedom of speech. Once you no longer have to treat citizens equally then you can add things to constitution that says the state has to pretend that some of its citizens aren't married regardless of reality.

Esteban J sez:

. . . AG Brown is obviously hostile to prop 8 (as evidenced by his claim that prop 8 would not overturn SSM's that formed during the past 6 months, and his brazen re-wording of the prop 8 ballot measure) and thus can't be relied on to vigorously and zealously defend it . .

Just to set the record straight, Brown did not "reword" Proposition 8, he re-worded the ballot tile and summary, not the amendment itself. From the Sacramento Bee:

On the petitions circulated last year to qualify the measure for the Nov. 4 ballot, it was described as a "Limit on Marriage."

But Brown's new title and summary of Proposition 8, posted on the Secretary of State's Web site on July 22, states the proposed constitutional amendment "Eliminates right of same-sex couples to marry."

The summary still says Proposition 8 provides that "only marriage between a man a woman is valid or recognized in California."
. . .
Gareth Lacy, a spokesman for the attorney general, said the title was reworded because of a state Supreme Court ruling in May that overturned a ban on gay marriages in California.

"We had a very significant Supreme Court decision, and the title and summary accurately reflect the measure," Lacy said.

He said the attorney general's office regularly changes "title and summaries to make them as accurate as possible at the time of the election."

Opponents said that although changes to ballot measures are subject to legal challenge, the attorney general's rewording accurately describes what the measure would do.

Granted, the ballot summary is just about as far as most voters get to when reading an initiative, but that's their problem, and Brown's description accurately describes the the impact of the constitutional amendment. Also, the State defended Proposition 22 (the initiative statute that was overturned); and I see no problem in the State's ability to defend Prop. 8--lawyers routinely make arguments in court they may not personally agree with.

Persus sez:

I'm astounded when people claim a similarity (to interracial marriage) given the obvious biological differences as well as other public policy considerations.

Outside of the procreation arguments, what interest does the State have when two unreleated persons marry? California didn't (and couldn't) make those arguments in March 2008, since the State's domestic partnership law allows gays to adopt children and many couples make arrangements to have biologically related children. Prof. Dale Carpenter wrote at the time of the arguments:

The state cannot and does not justify the exclusion of gay couples from marriage based on things like promoting procreation and the best interests of children. As a matter of state public policy, it has already surrendered much substantive ground about the differences between gay and straight couples. (My emphasis) The state's counsel was left to argue that withholding the title of "marriage" is justified by the state's unadorned desire to "preserve the common and traditional definition of marriage."

. . . Even the justices that seemed sympathetic to the state were skeptical about child-raising rationales, primarily because the public policy of the state is to make no distinction between same-sex and opposite-sex couples in child-rearing. Neither promoting procreation, nor its cousin, promoting responsible procreation, played a significant role. Procreation wasn't even mentioned until more than three hours had passed.

A mosdest proposal: If procreation is the State's interest in preserving traditional marriage, what about couples that are childless by choice or circumstance? My feeling is that a constitutional amendment should be enacted to require couples to bear at least two children (to replace themselves) within five years or face dissolution of their marriage.

All it means is that politicians like Willie Brown cannot maintain their corrupt reign indefinitely (though I think that gerrymandering is a bigger problem).

I'm in favor of term limits, I just think they need to be reasonable in length. Something on the order of 10-18 years seems right.

I agree about the gerrymandering.

Would gay rights activists similarly go to bat for the rights of other taboo couples, like the right of cousins to marry each other, or for adults to marry their step-parents?

The only people who seem to be concerned about the right to commit incest are those who oppose SSM; at least they're the ones who are always raising it. Perhaps your resources would be better spent on such a campaign rather than on depriving your fellow citizens of human happiness.

Cornellian (mail):
I think most people will find it really hard to understand how something discovered only a few months ago can be considered a "basic tenet" of a constitution almost 130 years old.

Probably the same way that the right to interracial marriage was "discovered" in Perez v Sharp in 1948 despite a ban on the practice as old as the state of California itself.

Gee, Cornellian, do you think that fact that interracial marriage has been around as long as marriage has might have had some effect on that ruling?

Can you perceive the difference between that and SSM, a form of "marriage" who sole legal status in history has been as something banned?

Bob Van Burkleo (mail):

first you'd have to change the constitution to allow some citizens to have special rights that are proscribed to others. You know, like only giving Republicans freedom of speech.

Gosh, bob, you actually understand what equal protection of the law (EPUTL) means, but still serve up dishonest BS about it.

You're absolutely right, a law that says "only gays are allowed freedom of speech" would be a violation of EPUTL. A law that says "only rich people are allowed freedom of speech" would be a violation of EPUTL.

But, a law that says that everyone is allowed to buy ad time during political campaigns "unfairly advantages" "the rich", since they're more likely to be able to afford to buy ad time on TV. Nevertheless, such a law is not a violation of EPUTL. Everyone has the same right (buy time on TV for political ads), even if only some of the people can actually exercise it.

Now, let's consider marriage and Prop 8. What does Prop 8 say? Only marriage between a man and a woman is valid or recognized in California.

Now, does it say "only heterosexuals can get married in California"? No. Does it say "homosexuals cannot get married in California"? No. It simply defines what a real marriage looks like.

It's no more of a violation of equal protection than is a law that makes you pay for your own political ads (instead of getting the government to finance them). Claims otherwise just show your own dishonesty.

I think most people will find it really hard to understand how something discovered only a few months ago can be considered a "basic tenet" of a constitution almost 130 years old.

Probably the same way that the right to interracial marriage was "discovered" in Perez v Sharp in 1948 despite a ban on the practice as old as the state of California itself.

Gee, Cornellian, do you think that fact that interracial marriage has been around as long as marriage has might have had some effect on that ruling?


Ah, so we don't actually have to read the constitution to find fundamental rights. Regular old rights become "fundamental" once they've been around for a while, whether or not mentioned in the constitution. Somehow the drafters of the California constitution thought they were invalidating a law as old as the constitution itself. Guess we'll have to call it a Living Constitution.

Since SSM is legal in Massachusetts, Canada and various European countries, how long would you say before it becomes a "fundamental" right too?

Speaking of ability to read, where did you find the word "race" in the text of the 14th Amendment?

I don't. I find it in the legislative history and public discussion of the Amendment.

Care to quote some basis for concluding the 14th Amendment protects only racial classifications, despite saying nothing of the sort? And by the way, the fact that racial issues might have prompted enactment of the 14th Amendment isn't the same thing as saying that the meaning of the text was understood to be restricted to race. Of course if you want to go down that road, you might also explain why you don't take the old Robert Bork position that the 14th Amendment protects only blacks, not whites, asians or hispanics.

Greg Q., you totally crack me up...better than watching SNL.