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Starr on California "amendments":

Defending Proposition 8 in today's California Supreme Court oral argument, Dean Ken Starr agreed that a bare majority of the voters could amend the state constitution to:

(1) Repeal the state constitutional protection of the freedom of speech.

(2) Repeal all rights of gay couples in domestic partnerships, protected both by statute and constitutionalized in judicial decisions. In other words, while he characterizes Prop 8 as "limited," it need not have been limited to be a valid amendment.

(3) Repeal and prohibit all specific antidiscrimination protections for gays and lesbians in all areas: housing, public employment, private employment, education, insurance, public accommodations, and in every other area of life. (That was done by Colorado in its own Amendment 2, struck down in Romer v. Evans under the federal Equal Protection Clause.)

Indeed, one could come up with many other examples of "amendments" under Starr's theory. Mormons can't contribute to political campaigns. Blacks may not marry whites. Immigrant women could be limited to having one baby, or none. These would be amendments and not "revisions" -- requiring more consensus and deliberation -- because they are neither (1) voluminous nor (2) alter the "basic structure of the state government."

Starr would say that at least some of these amendments would be unconstitutional under the federal constitution, which is true (although probably not true of #1 and #2 above). But nothing in the California constitution would prevent a majority from enacting them as amendments.

More on the oral argument later today.

Related Posts (on one page):

  1. The Prop 8 challenge after today's oral argument:
  2. Starr on California "amendments":
martinned (mail) (www):
I'm not sure if that necessarily qualifies as a reason to condemn the California constitution. Presumably it was written this way knowing full well that there was a Federal constitution that protected certain rights, even though I guess the Cal. Constitution was written before incorporation against the states came into full swing.
3.5.2009 2:01pm
Brianrw00 (mail):
Prof. Carpenter,

I'm against the amendment, but I never heard the amendment vs. revision argument until after the vote. As I (tenuously) understand the law, voters can amend with 50%+1. Is that right?
3.5.2009 2:01pm
jnet (mail):
I guess that's the federal-rights-floor at work, but it gives short shrift to the CA procedural protections put in place to safeguard individual rights and to the interests of the CA legislature. The CA SCT should tread lightly on its co-equal branch.
3.5.2009 2:03pm
cmr:
(1) Repeal the state constitutional protection of the freedom of speech.


Didn't he also agree that type of amendment would be "dead on arrival" based on the 1A of the U.S. Constitution?
3.5.2009 2:03pm
Visitor Again:
1) Repeal the state constitutional protection of the freedom of speech.


Didn't he also agree that type of amendment would be "dead on arrival" based on the 1A of the U.S. Constitution?


Why would it be dead on arrival? There's no federal constitutional requirement that a state constitution guarantee freedom of speech. What the first amendment guarantees is that no state action may violate freedom of speech; it does not require the states to protect it affirmatively in their own constitutions.
3.5.2009 2:08pm
Mike& (mail):
There is also nothing in the U.S. Constitution that would disallow the People from amending the Constitution to provide less constitutional rights.

So I'm not sure what your point is?
3.5.2009 2:10pm
martinned (mail) (www):
@Mike&: That in case of the Federal Constitution it would take a hell of a lot more than a 50% + 1 vote among the electorate.
3.5.2009 2:12pm
Mike& (mail):
Why would it be dead on arrival? There's no federal constitutional requirement that a state constitution guarantee freedom of speech. What the first amendment guarantees is that no state action may violate freedom of speech; it does not require the states to protect it affirmatively in their own constitutions.


Right.

The Federal Constitution provides a floor on rights. States can increase the freedom of people living in their own states. States need not do so.

States also need not, as a matter of federal constitutional law, even have a bill of rights in a state constitution.

This is just Con Law 101 stuff.
3.5.2009 2:12pm
Mike& (mail):
@Mike&: That in case of the Federal Constitution it would take a hell of a lot more than a 50% + 1 vote among the electorate.

What's your point?
3.5.2009 2:12pm
ruuffles (mail) (www):
"Blacks may not marry whites."

which would not have been DOA in the years between Perez (CA SC) and Loving (US SC).
3.5.2009 2:14pm
Archon (mail):
Sounds like reasonable logic to me. The people wrote the document so it could be changed by a majority so it only makes sense that a majority could decide to do away with any narrow clause including the right to free speech.
3.5.2009 2:15pm
martinned (mail) (www):
@Mike&: Careful, it's starting to sound as if you're just trolling. OK, one more time: It shouldn't be that easy to abolish free speech, or any other fundamental right. In fact, one could argue that it ought to be outright impossible. (Some modern constitutions, such as the German Basic Law, forbid the amendment of certain sections.)
3.5.2009 2:15pm
Colorado Steve (mail):
People can do and say pretty stupid things. They can even put them in a constitution. That doesn't mean they will. What's your point?
3.5.2009 2:15pm
Duffy Pratt (mail):
Let's not forget some of my favorites (apologies to Woody Allen):

They could declare that everyone must wear their underwear on the outside.

They could make the official language of California Swedish.

So what?

We could amend the federal constitution to require the slaughter of all first born male children, too. Does that show some infirmity in the federal constitution?
3.5.2009 2:18pm
martinned (mail) (www):

People can do and say pretty stupid things. They can even put them in a constitution. That doesn't mean they will. What's your point?

[Can't resist the temptation...] Well, the people of California voted for proposition 8, so clearly they're capable of some pretty stupid things.[/snark]
3.5.2009 2:19pm
Nessuno:
State legislatures (forget about just the amendment process) can do a lot of stupid and wicked things. I don't see that as much of a legal interpretation argument, however.

Is Carpenter arguing that there is some heretofore undiscovered right to be protected against our own stupidity?
3.5.2009 2:20pm
Mike& (mail):
Sounds like reasonable logic to me. The people wrote the document so it could be changed by a majority so it only makes sense that a majority could decide to do away with any narrow clause including the right to free speech.

That is the winning argument.

I could even spin Carpenter's initial argument. I'm so upset that the State Constitution can favor some groups over others, through a simple majority vote!

As a libertarian in a liberal state, I've suffered discrimination. The law does not protect me. Why should the law give others special protection - based on a simple majority vote!

As a religious person (not true; but let's assume it), I believer that homosexuality is a sin. I don't want to work around such sinners. Why should the law force me to - again, based on a simple majority!

Democracy works both ways. Sometimes you win. Sometimes you lose. You often win or lose based on a simple majority.
3.5.2009 2:21pm
alkali (mail):
@Archon: Technically, that's not quite right. The California Constitution expressly distinguishes between two different kinds of changes: amendments (which may be passed by ballot initiative, by a 50%+1 majority) and revisions (which require a two-thirds vote of the legislature and a 50%+1 majority vote of the electorate). If Prop 8 is an amendment, it has been properly passed; if it is a revision, not.
3.5.2009 2:22pm
martinned (mail) (www):

Is Carpenter arguing that there is some heretofore undiscovered right to be protected against our own stupidity?

Well, I don't know about my own stupidity, but I'm pretty sure my right to be protected against other people's stupidity in certain cases is pretty well established.
3.5.2009 2:26pm
UMN 3L (mail):
Theoretically, the First Amendment could be repealed with the support of fewer than 50% of American voters, depending on the voter composition of states whose legislatures supported such repeal (think the Electoral College). The California Constitution simply makes this possibility for California more explicit and makes the CA Constitution more malleable, which I think is in keeping with the libertarian principle of subsidiarity.

I'll also note that #3 infringe on individual rights, and that aspects of #2 may or may not, depending on what right is involved. The CA SCT should tread even more lightly on the people.
3.5.2009 2:26pm
Houston Lawyer:
Is it worse to lose a right through the electoral process than through a decision of a court?

It's a whole lot easier to get a vote on a constitutional amendment in California than it is to overturn court precedent.
3.5.2009 2:26pm
Paul A'Barge (mail):
yay for option #2.
3.5.2009 2:27pm
drewsil:
The more I hear about this case the less I like the way the California amendment process works. I believe a constitution is supposed to limit the tyranny of the majority, not encourage it. Whichever way this case goes, the amendment process is broken, and should be fixed.
3.5.2009 2:28pm
Mike& (mail):
Careful, it's starting to sound as if you're just trolling. OK, one more time: It shouldn't be that easy to abolish free speech, or any other fundamental right.

That's your opinion. You speak as though your view has some authority. It does not.

One last time. As a matter of law (which is authoritative):
1. The Fed. Const. provides a floor on rights.
2. This floor applies to every state.
3. States may not violate Fed. Const. rights.
4. States may adopt a bill of rights that grants greater protection to its citizens.
5. States are not required to do 2.

That's just the law. You might not like it. Fine. I voted no on Prop 8, and think people who oppose gay marriage are bigots. So what? My opinion has no bearing on the state of the law. Nor does yours. The law is what the law is.

What Carpenter seemed to suggest was that it was outrageous or outlandish that California may amend its own Constitution based on a simple majority. By what logic?

Is the argument that once a state grants a right, it must never take away that right? Is there a legal basis for that?

As a policy matter, I think the argument is complicated. Shouldn't states be allowed to experiment with granting rights? Give people more rights. See what happens. If it was a mistake, take them away. Federalism is about the laboratories of the states. Let states experiment.

Plus, state cultures change. Shouldn't the people have an ongoing say in their own Constitution?
3.5.2009 2:31pm
Bored Lawyer:

OK, one more time: It shouldn't be that easy to abolish free speech, or any other fundamental right. In fact, one could argue that it ought to be outright impossible. (Some modern constitutions, such as the German Basic Law, forbid the amendment of certain sections.)



But the California Supreme Court is not empowered to decide what the law should be, it is empowered to decide what the law is.

And the California Constiution by its express terms has two ways in which it can be changed (amendment and revision) both of which are far easier than amendment of the U.S. Constitution

That's what makes all of these arguments so silly. Every one of these hypotheticals are almost the same EVEN IF you call them revisions (which requires 2/3 of the legislature AND 50% plus 1 of the electorate) than amendments.


So, yes, 2/3 of the Legislature and 50% plus 1 of the electorate could enact the same parade of horribles -- abolish free speech, deny equal protections to gays, etc.
3.5.2009 2:33pm
Nessuno:

Whichever way this case goes, the amendment process is broken, and should be fixed.


I can agree with that, but personally, I have a much more visceral sense of injustice and tyranny from the judicial "amendment" process.

I'd happily limit people's amendment power by way of proposition after we limit the court's amendment power by way of fiat.
3.5.2009 2:34pm
martinned (mail) (www):
@Mike&: Of course that's my opinion, this is a conversation about lex ferenda. As a matter of lex lata, i.e. the law as it is, there's no question that Starr is right in his summary of California constitutional law, just like there's no question that this isn't much of a problem, given the present day working of the federal constitution.

And as for it being my opinion only, what the Brits did in the 18th century was also OK as a matter of British law, but that didn't stop the founding fathers arguing that it was wrong. Some rights should be, well, unalienable, no matter what the constitution says.
3.5.2009 2:38pm
Down from the Ivory Tower:
I think it is inescapable that if the Court permits a majority votes to take away the fundamental rights of suspect classes, then the equal protection clause is hollow, and therefore Prop. 8 is a revision, not merely an amendment. I don't see how a lawyer arguing in good faith could disagree. I was certain the California Supreme Court would strike it down.

That said, I watched the oral arguments today. The pro-equality side really took a bath. Justice Kennard made the laughable argument that her concurrence in the marriage decision does not apply here. She seemed almost vicious in her disdain for petitioners' arguments. Her mind is clearly made up. I didn't detect any hopeful signs from any of the other justices, either.

Shannon Minter and Kruger from the AG's office looked like a couple of bumbling third-stringers. Why couldn't we have gotten a Larry Tribe or someone of stature other than Gloria Allred? The bigots brought their A-team in Ken Starr. Where was ours?
3.5.2009 2:39pm
martinned (mail) (www):
@Bored Lawyer: I don't think either Carpenter or anyone else in this thread meant this as an argument in the current dispute. The law here is a bit blurry, since there is no rule in the Cal. constitution about how to tell the difference between an amendment and a revision, and theoretically one could conceive of a rule that says that any change that takes away someone's rights is a revision, but given the court's prior precedent, not to mention common sense, that's an extremely unlikely outcome.
3.5.2009 2:41pm
Nessuno:

The bigots brought their A-team in Ken Starr.


Classy.

You realize an awful lot of people, including some people in this thread, voted no on 8, but disagree that 8 is unconstitutional, right?

Well, no matter. It's easier to demonize than persuade.
3.5.2009 2:43pm
Tony Tutins (mail):

Justice Kennard made the laughable argument that her concurrence in the marriage decision does not apply here.

She's saying that interpreting the pre-Prop 8 constitution is not the same as interpreting the post-Prop 8 constitution, which kind of begs the question.
3.5.2009 2:44pm
^____^:
u r gay
3.5.2009 2:47pm
zuch (mail) (www):
Nessuno:Is Carpenter arguing that there is some heretofore undiscovered right to be protected against our own stupidity?Not sure, and I'll let him speak for himself, but there is something wrong with a place where the legislators need supermajorities in both houses along with the governator's assent just to pass spending bills, but where 50.001% of the people (mostly functionally illiterate with respect to Constitutional law) can amend the constitution. Agreed, if that's what the constitution itself provides, it could do so (just as it could provide for appointment of the chief exec based on box office take, and the wearing of underpants on the outside in public). The proper remedy might be to rewrite the constitution.

FWIW, I'm not a fan of "voter initiatives" to begin with, much less rewriting a constitution on such a basis. Kind of makes a mockery of the idea of a constitution; I'd rather play p0ker with a gang that make up the rules as they go when their deal comes around; all I'd lose is the ante, I guess...

Cheers,
3.5.2009 2:53pm
cmr:
Why would it be dead on arrival? There's no federal constitutional requirement that a state constitution guarantee freedom of speech. What the first amendment guarantees is that no state action may violate freedom of speech; it does not require the states to protect it affirmatively in their own constitutions.


There is also nothing in the U.S. Constitution that would disallow the People from amending the Constitution to provide less constitutional rights.

So I'm not sure what your point is?


Well, it wasn't my argument. I was trying to remember what Starr had said when presented with that hypothetical. However, I would say both of you are missing the point, in that, it's unlikely a ballot initiative aiming to do away with the protections of free speech would ever make it onto a ballot in the first place, because it is an inalienable right as per our federal constitution and, though I'm not terribly familiar with the CA state constitution, most likely the state constitution as well.
3.5.2009 2:53pm
A.S.:
I don't understand why some commenters are discussing "abolishing free speech". There is nothing in Prof. Carpenter's post about "abolishing free speech". Prof. Carpenter writes that Starr agreed that an amendment could "[r]epeal the state constitutional protection of the freedom of speech", but this has nothing to do with abolishing free speech - it solely abolishes such rights to free speech contained in the California Constitution (if any) *that are in excess of the rights contained in the Federal Constitution*.

It seems to me that the commenters discussing "abolishing the right to free speech" are being deliberately misleading.
3.5.2009 2:54pm
Bill Quick (mail) (www):
The intent of Prof. Carpenter's post isn't entirely clear to me, but couldn't it possibly be an effort to illustrate the huge reach of the amendment process, if viewed through Starr's prism?

By which I mean the crux of this case is whether the changes envisioned by Prop 8 are properly viewed as an amendment versus a revision. If Starr is claiming that just about any imaginable change is an amendment under his interpretation, what role is left for the revision process?

It seems a somewhat untenable position to me. Which may be why he was maneuvered into it, if, in fact, he was so maneuvered.
3.5.2009 2:54pm
Real American (mail):
The people of this state did not grant a right to same sex couples to marry. It was imposed by Judicial Fiat last year. A. that hardly makes it a fundamental right. B. The People are allowed to amend the constitution with 50%+1 vote. Why should the Court now rule that the people of the State of California NO LONGER HAVE THAT RIGHT? That would be worse!

Yes, theoretically, the voters could abolish the rights of Mormons to give money to political campaigns, but the proponents of that Proposition would have to first get it on the ballot and second, convince a majority of California voters to vote for it. That's no small task in and of itself. They'd have to spend a lot money doing that. There really wouldn't be that broad a support for it and everyone would know that it violates the First Amendment and it wouldn't pass. If the crybabies want to do that to get even, then I say, please do it. We all know who the real haters are here, anyway.

In this case, the Court ignored the people's previous vote on this issue and decided it knew better. In November, the people told them they were wrong and didn't know better. The people voted and said, there is no fundamental right of gay couples to marry. Here is the real definition of marriage, again. It isn't a fundamental right. Not even close. Whining about it, doesn't make it so.
3.5.2009 2:55pm
PeterWimsey (mail):
Leaving for another day arguments about how easy it should be to amend/revise a constitution, I think that any system that reserves until after the vote the decision on how many votes you needed is fundamentally broken. Both as a matter of pure procedure and as a matter of legitimacy. I am in no way a proponent of Prop. 8, and I am sympathetic to the general argument that it is a revision rather than an amendment.

But I think that this is a ruling that should have been made *before* the vote, so that everyone knew the ground rules going into the election. I hope, at least as a matter of policy, that the court upholds prop. 8 and that it is later removed by another referendum. And following that a referendum declares that referenda that relate to basic rights are revisions, not amendments. And after that, I'd like a pony :).

If a person was tried for a crime and acquitted, and then on appeal the court found that his trial was really best characterized as a civil case, and while there wasn't evidence beyond a reasonable doubt to convict him, there was more than a preponderance of evidence, and consequently he is liable for money damages...well, this is sort of what Calif's system reminds me of.
3.5.2009 2:59pm
Mike99:
No one has (in this thread) has talked about what a revision might look like. My understanding is that the Starr analysis should treat as a "revision" an intiative to create unicameral (or tricameral) legislature. The structure vs. substance distinction makes sense to me, and by that I mean it is a distinction that I think can be identified without too much effort.
3.5.2009 3:00pm
Bill Quick (mail) (www):
It isn't a fundamental right. Not even close. Whining about it, doesn't make it so.

We'll keep that in mind when, a few years down the road, the citizens of California do make it a fundamental right, via the initiative amendment process. And I'm sure, based on your faith in the process, you won't whine even a little bit about it.
3.5.2009 3:01pm
Jer:
It seems we are suffering from a lightbulb problem. This year, 50%+1 votes to bar same-sex marriage. Next year, the +1 changes his mind, and the constitution is again amended in favor of same sex marriage. And back and forth like flipping a light switch.

From a policy perspective, is marriage the type of activity that we want 50+1% to control?

For those in favor of Prop 8, do you want it (potentially) reversed on 50%+1 of the vote? For those opposed to Prop 8, do you want a supermajority vote before same-sex marriage is constitutionalized in California?
3.5.2009 3:01pm
torrentprime (mail):
Nessuno: Ken Starr is representing ProtectMarriage.com. Calling them bigots is not exactly a stretch. I fully understand that many people disagree with Prop 8 but believe that it should stand; the people at pm.com, AFA, FotF, etc are not among them.

Real American: So we don't need constitutional protections for minorities because you don't think it's likely that other minorities (you know, the religious ones that you agree with) would be threatened? Rock solid planning. And when the Supreme Court ignored the will of the people and ruled interracial marriage legal, was that creating a fundamental right that needed to be set back to the "real definition" of marriage? (sorry everyone, but a handle like that just needs to be fed)

A.S: It's not misleading at all. The US Constitution has established a floor for 1st Amendment rights. Previous CA Supreme decisions may have expanded those rights, as have other state supreme courts. Under Starr's reasoning, the amendment process could be used to wipe out those extension solely to a minority group by a majority vote. Just because that minority group gets to walk around saying, "Well, at least I still have the constitutional rights that my fellow Californians *can't* take away" doesn't make equal protection any less of a problem.
3.5.2009 3:07pm
Jer:

But I think that this is a ruling that should have been made *before* the vote, so that everyone knew the ground rules going into the election.


California does not allow advisory opinions. There has to be a case/controversy before the court acts.

But are there alternative theories for a case/controversy if (when) a amendment/revision issue arises under the initiative process?
* would a pre-election challenge to the wording of the ballot initiative, asking for declaratory relief that the change is an amendment or revision, qualify?
3.5.2009 3:10pm
Down from the Ivory Tower:
To Peter Wimsey: We challenged Prop. 8 on these very grounds (revision vs. amendment) when it was first placed on the ballot. The court declined to hear the arguments at that time.

To Nessuno re: persuasion vs. court action: It is beneath my dignity as a man to beg and plead with the masses to grant me what is already inherently mine as a human being. The very idea is vulgar and dehumanizing.
3.5.2009 3:26pm
jmw2009 (mail):
torrentprime: One can support Prop 8 and not be a bigot. Bigotry normally connotes intolerance. There are plenty of people who are tolerant of homosexuality but do not think marriage is anything but a union between one male and one female.

As an aside, I often wonder how often people who throw around the phrase "bigot" are exhibiting pot-calling-the-kettle-black behaviors.
3.5.2009 3:27pm
Mike& (mail):
It seems we are suffering from a lightbulb problem. This year, 50%+1 votes to bar same-sex marriage. Next year, the +1 changes his mind, and the constitution is again amended in favor of same sex marriage. And back and forth like flipping a light switch.

Do you have any empirical support or other data supporting this flipping on and off of the light switch?

Or are you just throwing out something that could happen in some theoretical land?

The law is generally drafted in light of actual human affairs and actual human conduct.

If the lights are going off and on, then the law should be changed. If the lights are not, then why is your argument persuasive?
3.5.2009 3:29pm
zuch (mail) (www):
Jer:It seems we are suffering from a lightbulb problem. This year, 50%+1 votes to bar same-sex marriage. Next year, the +1 changes his mind, and the constitution is again amended in favor of same sex marriage. And back and forth like flipping a light switch.

From a policy perspective, is marriage the type of activity that we want 50+1% to control?
You
3.5.2009 3:33pm
ray_g:
"But I think that this is a ruling that should have been made *before* the vote, so that everyone knew the ground
rules going into the election."


Actually, going into the election everyone knew the ground rules, it was an ammendment. It said so on the ballot and in the voter's pamphlet. The argument that it was a revision was brought up afterward by those who brought the suit to overturn it. IOW, there was nothing to rule upon before the vote.

I'm a resident of California. It suprises me that most SSM proponents and many out of state commentators miss the fact that a large part, (not the biggest part but enough to make a majority), of the Yes vote for Prop 8 was by people who really had no strong feelings about SSM, but thought that the CA. Supreme Court decision was wrong and the judges had way overstepped their authority by making up a new fundamental right out of thin air. Now, you may disagree with those people, but simply writing them off as bigots or anti-homosexual both misunderstands their position, and is a politically unwise move by SSM supporters.

Those same folks are not going to accept that a 14 word sentence, which was plainly labeled an ammendment when they voted on it, is now magically a revision. Yeah, you can try to argue that the effect is major enough to count as a revision regardless of the word count, but that's going to be a really hard sell. If the court so rules, I predict a movement to recall some judges. In recent memory CA citizens have recalled a judge that consistenly thumbed her nose at the citizenry. Anyone remember Rose Byrd?
3.5.2009 3:35pm
Bill Quick (mail) (www):



If the lights are going off and on, then the law should be changed. If the lights are not, then why is your argument persuasive?

I think it is fairly obvious that within five years there will be another amendment on the ballot, probably put there by the state legislature, and the vote will go the other way. In this case, the light-switch is a valid analogy.

Cite:
The poll also showed majority support among those under 50 years of age, with 68 percent of 18 to 29 year olds supporting it.
3.5.2009 3:36pm
zuch (mail) (www):
Jer:
It seems we are suffering from a lightbulb problem. This year, 50%+1 votes to bar same-sex marriage. Next year, the +1 changes his mind, and the constitution is again amended in favor of same sex marriage. And back and forth like flipping a light switch.

From a policy perspective, is marriage the type of activity that we want 50+1% to control?
You make a good point. If a law is of such a nature that many people rely on its stability [such as making life-long commitments, as opposed to deciding in the here-and-now to take a bong hit today], and in fact, it impinges on numerous other portions of the state code and developed case law and precedent, there is a pragmatic reason to put that decision out of the easy "on/off" light switch type category.

Cheers,

P.S.: Apologies for the aborted double post.
3.5.2009 3:38pm
Bill Quick (mail) (www):
In recent memory CA citizens have recalled a judge that consistenly thumbed her nose at the citizenry. Anyone remember Rose Byrd?

Yet another reason to despise the notion of "democratically elected judges."
3.5.2009 3:38pm
Down from the Ivory Tower:

As an aside, I often wonder how often people who throw around the phrase "bigot" are exhibiting pot-calling-the-kettle-black behaviors.

Are you SERIOUS? Let's get real here. One side is defending their own marriages and families against people who don't even think that gays and lesbians deserve those rights to begin with. If you disagree with gay marriage, you necessarily must think there is something about gay people which makes them unfit to get married and have families. That is bigotry, plain and simple. To say it's just not the "definition" is circular reasoning, begs the question, and is total balogna.

Consider this. On Election Day, I stood with a sign at a busy intersection trying to convice people not to destroy my own marriage. Can you imagine having to carry a sign up and down a sidewalk begging people not to divorce you from your own wife? And you want to say the people that would vote to do such a vile thing were kind-hearted?

Some of you people wouldn't know bigotry if it bit you in the ass.
3.5.2009 3:39pm
cmr:
Do you guys think the amendment vs. revision argument would've even been brought up had the CA legislature not voted twice to enact same-sex marriage? I know Eugene said we shouldn't place too much emphasis on that, since it would've ended in a public vote even if the Governor hadn't vetoed it. But I can't help but think that's driving this claim. It's like the opponents of Prop 8 know it's highly unlikely the Legislature will vote against same-sex marriage, since they haven't. I don't know.
3.5.2009 3:40pm
zuch (mail) (www):
ray_g:
I'm a resident of California. It suprises me that most SSM proponents and many out of state commentators miss the fact that a large part, (not the biggest part but enough to make a majority), of the Yes vote for Prop 8 was by people who really had no strong feelings about SSM, but thought that the CA. Supreme Court decision was wrong and the judges had way overstepped their authority by making up a new fundamental right out of thin air. Now, you may disagree with those people, but simply writing them off as bigots or anti-homosexual both misunderstands their position, and is a politically unwise move by SSM supporters.

Those same folks are not going to accept that a 14 word sentence, which was plainly labeled an ammendment when they voted on it, is now magically a revision. Yeah, you can try to argue that the effect is major enough to count as a revision regardless of the word count, but that's going to be a really hard sell. If the court so rules, I predict a movement to recall some judges. In recent memory CA citizens have recalled a judge that consistenly thumbed her nose at the citizenry. Anyone remember Rose Byrd?
It would seem that you are makng the case that a substantial portion of those voting for the proposition thought that it was indeed far more extensive than what it purported to be, in which case they would (or at least should) have thought it to be a "revision" and not an "amendment" (or an "amendment" fatally void for vagueness).

Cheers,
3.5.2009 3:42pm
torrentprime (mail):

Actually, going into the election everyone knew the ground rules, it was an ammendment. It said so on the ballot and in the voter's pamphlet.


ray_g: Wasn't a case filed *before* the election that did raise the argument? And the CA Supremes punted? Prop 8 was only a amendment because it went through the process, not because it was ruled or in any way judged to be one.
Every amendment that gets struck down at one point was an amendment. Anyone can fill out a form; that doesn't make it so.
3.5.2009 3:45pm
ray_g:
Oops, that should be Rose Bird. I apologize to Ms. Bird for my error.
3.5.2009 3:45pm
A Law Dawg:
If a law is of such a nature that many people rely on its stability [such as making life-long commitments, as opposed to deciding in the here-and-now to take a bong hit today], and in fact, it impinges on numerous other portions of the state code and developed case law and precedent, there is a pragmatic reason to put that decision out of the easy "on/off" light switch type category.


That is a resounding argument in favor of changing California's amendment approval thresholds. It is not a particularly compelling reason for saying that a particular amendment is not valid once passed.

I say this as a vocal Prop-8 opponent.
3.5.2009 3:49pm
jonzyx (mail):


Consider this. On Election Day, I stood with a sign at a busy intersection trying to convice people not to destroy my own marriage. Can you imagine having to carry a sign up and down a sidewalk begging people not to divorce you from your own wife? And you want to say the people that would vote to do such a vile thing were kind-hearted?

Some of you people wouldn't know bigotry if it bit you in the ass.


IvoryTower,

If your own wife was your fifth wife, was 10 years old and was actually a little poodle with sad brown eyes then yes people who voted to do it would be both bigoted and kind-hearted.

But we all know there are good types of bigotry and bad types of bigotry. We just differ on which is which.
3.5.2009 3:49pm
cmr:
Are you SERIOUS? Let's get real here. One side is defending their own marriages and families against people who don't even think that gays and lesbians deserve those rights to begin with. If you disagree with gay marriage, you necessarily must think there is something about gay people which makes them unfit to get married and have families. That is bigotry, plain and simple. To say it's just not the "definition" is circular reasoning, begs the question, and is total balogna.


The problem with this, and there are many, most of which I wont be getting into because I had my fill of debate yesterday, is that your litmus test is purely based on symbolism. Just because people disagree with marriage policy being changed in this way doesn't necessarily mean they dislike gay people. There's throwing the baby out with the bathwater, and then there's the baby jumping out with it.

I mean, as much as I hate to use analogies as if they make my point completely self-evident, does it automatically follow that because someone agrees with separation of church and state that they fundamentally think something is wrong with the church?

Do cohabiting couples with children not qualify for the "family" label? You're really just trying to shame people into agreeing with your political ideas by overreaching any usefulness pathos may have in this discussion. The truth is, the fact is, the burden is on you to prove why we need gay marriage. Saying that gay marriage is good policy because people who disagree with it are bigots...well, I really hope you see how bankrupt that logic is.
3.5.2009 3:50pm
torrentprime (mail):
jmw2009: Your or others' tolerance that doesn't extend to the granting of legal rights is of no actual use in society. No one cares if in the silence of your heart you tolerate gays. What we're talking about are legal and civil rights. Some people believe that marriage was only between members of the same race, even though they personally were tolerant of mixed-race relationships. When that couple needs to inherit a home or make a decision on a deathbed in a hospital (over the opinion of a family that isn't so "tolerant"), hypothetical external tolerance is useless.
And the original post stated that the bigots brought their a-game in Ken Starr. No one is stating that every single gay marriage opponent is a bigot. Stating that protectmarriage, Focus on the Family, American Family Association, etc are made up of bigots, however, isn't hard to prove.
3.5.2009 3:52pm
Greg Q (mail) (www):
Gosh, wow, it's a shocker. The right to amend the Constitution means the right to amend the Constitution, even when you really don't like the amendment.

So?

4 Supreme Court "Justices" rewrite the Constitution, create "rights" out of nothing, and out and out abuse their power for the purpose of forcing their desires on every else, and you see no problem with that,

Millions of "We the People" go to the ballot box and vote to rectify the Constitution to be in line with their beliefs, and that to you is a horrible thing that should not be allowed.

Could you guys please show the basic honesty to stop calling yourselves the "Democratic" Party? Please?

Because if there's one thing you people obviously don't believe in or support, it's democracy.
3.5.2009 3:57pm
jmw2009 (mail):
Down From the Ivory Tower:

I am not trying to belittle homosexuals or deny that this is an easy issue. I actually think it is a very difficult issue because both sides have strong and legitimate interests at stake.

My only point was that calling a person a bigot, i.e. a prejudiced person who is intolerant of any opinions differing from their own, often displays a prejudiced mindset that is intolerant of opinions differing from their own. There is a difference between being wrong, misguided, or holding unpopular views and being a bigot.
3.5.2009 3:59pm
ray_g:
Zuch. I don't see how you get that from what I said. I do not agree with the "scope of effect" argument, I only brought it up to acknowledge that others make that argument, and to comment that it is not persuasive to many people, including myself. To be very plain, I disagree with your interpretation of my statement.

torrentprime: Yes, that is true, but most were not aware of it, I wasn't and I think I am more knowlegable than the average CA voter (pats self on back), but regardless, what was on the ballot was an ammendment.

"Prop 8 was only a amendment because it went through the process, not because it was ruled or in any way judged to be one. "

That bothers me. Are you saying that the process is meaningless until some judge rules on it? That kind of thinking is exactly what leads people to think that judges need some reining in. I apologize if I have misunderstood you.
3.5.2009 4:01pm
torrentprime (mail):

Do cohabiting couples with children not qualify for the "family" label?
Saying that gay marriage is good policy because people who disagree with it are bigots


Um, they do qualify for the family label. Guess what: they get called families. And, assuming you're talking about heterosexual couples, they choose not to get married; they're not denied it by the state. So what was your point? And if one in that couple dies, won't any legal dispute of this hetero couple treat them as common-law spouses? Again, what was your point?

And your second howler: that has never been the argument. The argument has been based on every conservative argument for marriage: it brings stability to couples, its better for their children, it's better for society, and also opposition is based on religion and tradition instead of legal reasoning. No one has ever tried to bootstrap it the way you claim. I know it's fun when you get to write your opponents' lines for them, but it doesn't make it so.
3.5.2009 4:03pm
zuch (mail) (www):
A Law Dawg:That is a resounding argument in favor of changing California's amendment approval thresholds. It is not a particularly compelling reason for saying that a particular amendment is not valid once passed.I don't disagree. I think that the California amendment process is fundamentally wrong-headed (and this case bears it out), and in need of fixing. I said there's "pragmatic" reasons to prevent such "on/off" flipping, and that is one reason I think California amendment processes are wrong, and I'll be on teh barricades to get them fixed. That being said, I think the best we can hope for now is that the Supreme Court rules that, while Prop. 8 is "valid", it is also a state constitutional requirement that all people be treated equally, and that henceforth, civil unions -- all of them, gay or straight -- in California shall be entitled "jalapeno ice cream". As Ken Starr has explained, the title "marriage" (the only right at issue according to the Prop. 8 summary) is purely "symbolic" so I'm sure this equitable solution would meet with wide approval -- "no harm, no foul". ;-)

Cheers,
3.5.2009 4:07pm
torrentprime (mail):
ray_g: No, of course not, but now you're dodging. You claimed that everyone knew the ground rules, that everyone knew it was an amendment because it "said so on the ballot and in the voter's pamphlet." Didn't every amendment overturned as a revision do or attempt to do the same? Doesn't every initiative (in whatever state) that gets struck down due to "single issue" restrictions at one point get submitted through the process and claim to be pure single issue? My point is that every thing is an amendment - until it's found not to be. And everything is single issue, until it's not. And every law passed by Congress or a state legislature is constitutional until its found not to be. You don't get to claim that the mere act of going through the motions is sufficient to remove it from judicial review.


what was on the ballot was an ammendment.

So your final argument is just a declarative statement of what you want to be the case, regardless of what it actually did or whether it actually is. Got it. ;)
3.5.2009 4:13pm
A.S.:
A.S: It's not misleading at all. The US Constitution has established a floor for 1st Amendment rights. Previous CA Supreme decisions may have expanded those rights, as have other state supreme courts. Under Starr's reasoning, the amendment process could be used to wipe out those extension solely to a minority group by a majority vote. Just because that minority group gets to walk around saying, "Well, at least I still have the constitutional rights that my fellow Californians *can't* take away" doesn't make equal protection any less of a problem.

Sure it's misleading. We're not talking about the ability to abolish the right to free speech. We're talking about the ability to abolish the right to *those extra protections* over and above the federal Constitutional floor.
3.5.2009 4:14pm
torrentprime (mail):

Millions of "We the People" go to the ballot box and vote to rectify the Constitution to be in line with their beliefs, and that to you is a horrible thing that should not be allowed.
Because if there's one thing you people obviously don't believe in or support, it's democracy.


Greg_q: So if a muslim majority in some suburb of Detroit passed a law banning Christians from praying in public, you would support that as the will of the people? You wouldn't mind giving up your fundamental and inalienable rights to the ballot box?

Why don't these anti-gay-rights people realize judicial review protects their majority rights from encroachment as much as they protect the minority? (/rhetorical)
3.5.2009 4:17pm
Greg Q (mail) (www):
Dale,

A Question:

If the people of CA were to pass a Constitutional Amendment saying that homosexuality was not a protected class under the CA Constitution, would you claim that Constitutional Amendment was "unconstitutional"?

Could you point us to the part of the CA Constitution that states that homosexuals deserve extra protection and extra rights compared to the rest of the people (that being what it means to be a "protected class")?

Or is it just that once a bare majority of judges have ruled in a way that you like, you don't believe anyone or anything should ever be allowed to overturn their ruling, however illegitimate it might be?

Or are you simply blind to the thought that any decision you like could ever be wrong?
3.5.2009 4:18pm
ray_g:
I found the Proposition 8 issue yet another example of what is wrong with political discourse in the US. I live in CA, I watched the ads from both sides. Many have commented, correctly, that the pro-Prop 8 ads rarely, if ever, mentioned gay marriage. Well, the same was true of the anti-Prop 8 ads. If we can't even name the thing we are really discussing, it's no wonder the debate is of poor quality.
3.5.2009 4:18pm
zuch (mail) (www):
ray_g:
Zuch. I don't see how you get that from what I said.
From this:
[ray_g]: [A] large part, (not the biggest part but enough to make a majority), of the Yes vote for Prop 8 was by people who really had no strong feelings about SSM, but thought that the CA. Supreme Court decision was wrong and the judges had way overstepped their authority by making up a new fundamental right out of thin air....
I think you're saying that a "large part" of the people voted for it based on their ideas concerning other issues, rather than on their views on the subject of the amendment itself. If so, aren't we asking the wrong "question" on that referendum? Or are people "answering" the wrong question, and not that put to them? I do understand that it's hard to impute such motives to voters and thus nullify the amendment (because, say, it really wasn't supported by the majority), but it does illustrate the problem. And then there's those that voted for the simple and limited amendment while thinking (and/or hoping) that it would indeed remove all civil rights (or at least all domestic partnership rights) for gays and lesbians. That probably constitutes a greater portion of the "yes' votes than those that just wanted to tell of the judges and who were noncommittal on the actual subject matter.

Cheers,
3.5.2009 4:19pm
MarkField (mail):

Because if there's one thing you people obviously don't believe in or support, it's democracy.


I doubt seriously there's anybody who believes in the sort of "pure" democracy you implicitly support here. Certainly the Founders didn't. The idea of inalienable rights pretty much undercuts the project of majority tyranny.
3.5.2009 4:20pm
Caliban Darklock (www):
Anyone who has been watching my posts for a while knows that I do a lot of flip-flopping on gay marriage, so you certainly don't want me to be that +1.

But if you've been watching that with any interest, you may like to know that currently I'm pretty strongly in favor of it. A big missing piece showed up: Joel Derfner made a large blog post about how the initial California ruling made him feel.

That one blog post led me to reconsider my position, and it's unlikely to do any more flip-flopping. Because for once, in the entire sordid history of this issue, it wasn't about what a homophobic jackhole I was not to support SSM. It was about SSM being good; not a correction of injustice, or a fundamental right, or a reparation for hate crimes. Just good, in and of itself, because it's good for real people with real relationships who want a real marriage.

That, I can support.
3.5.2009 4:23pm
John D (mail):
Caliban,

I've long been a proponent of same-sex marriage and on exactly those grounds:
because it's good for real people with real relationships who want a real marriage.

Thank you. It's a point that often goes missing in this debate.

It's funny, actually, how same-sex marriage seems to turn liberals into conservatives and conservatives into liberals.

I was running through some arguments for same-sex marriage recently and my husband realized that they were all based on personal liberty, freedom, and responsibility. "You're a liberal," he said, "why are you making the conservative argument?" Because it was the one I found most persuasive.

Ironically, here and on other sites, I often see the opponents to same-sex marriage demand that supports show how same-sex marriage will benefit society. That's kind of a Marxist argument, isn't it? "Is it good for the People?"

I don't have an answer for that one (beyond snark, of course), since my marriage, though it provides no harm, does nothing good for you. But it's awfully good for me (with even more potential benefit once it is recognized throughout the country).
3.5.2009 4:45pm
Tony Tutins (mail):
The biggest arguments against same-sex marriage:

"Wow, we never had that before."
"What gays do in the bedroom is icky."

The first one can be argued against because it is not inherently bigoted, merely held out of ignorance.
3.5.2009 4:51pm
David Schwartz (mail):
If the people of CA were to pass a Constitutional Amendment saying that homosexuality was not a protected class under the CA Constitution, would you claim that Constitutional Amendment was "unconstitutional"?
That wouldn't change what actually is a protected class for equal protection purposes, because weakening or revoking equal protection would take a revision.

The Constitution can certainly be amended to deny special rights to particular groups. But it cannot be amended to weaken equal protection guarantees. Those guarantees are fundamental to the structure of Republican governments.

If the government will let me marry a woman, it must let me marry a man. That is equal protection applied to the classification of gender and the institution marriage. Nothing is more fundamental to the structure of California's government than equal protection.

Proposed amendments that threaten the ability of the government to ensure equal protection are properly rejected as revisions.
3.5.2009 4:52pm
Christopher Cooke (mail):
The point of the hypotheticals posed to Starr is to test the limits of the electoral majority's power to change the state constitution when doing so takes away historically recognized rights of the minority.

If we agree there are limits, under California constitutional law, on that power, just what are they? I think Starr was saying there are no limits on the majority's power if the change is enacted through the manner specified in the constitution, except for whatever limits the federal constitution imposes on the state voters' power.

He was not addressing the "revision" vs. "amendments" issue, which is a technical one that interprets the initiative and whether it properly qualifies as an amendment and not a revision. That was the original issue the parties were supposed to brief.

Maybe there are no limits imposed by state law on this power. Personally, I have not researched the issue and do not have an opinion (as a lawyer).
3.5.2009 4:54pm
ray_g:
torrentprime: So your final argument is just a declarative statement of what you want to be the case, regardless of what it actually did or whether it actually is. Got it. ;)"

Now you are just being insulting, or more charitably you misunderstand me. My statement of "that's what was on the ballot" was not meant as an argument about whether it "really" is an amendment or not. Someone above commented about ground rules. What I am saying is that, when the voters were asked to choose, that the ground rule was clear. It was an amendment. Now we are having an after the fact discussion of whether that rule was correct.

"You don't get to claim that the mere act of going through the motions is sufficient to remove it from judicial review. "

I made no such claim. I was trying to convey, rather badly it appears, that I think that arguing that Prop 8's short, simple, fairly unambiguous statement on one issue is a revision vice an amendment is going to be quite a stretch. And, based on past CA history I won't go into here, IMO a lot of people are tired of the courts stretching. It is almost to the point of being seperate of the actual issue at hand. I mentioned Rose Bird as a precedent for CA voters recalling judges.

I concede that the "thumbing their nose" comment was provocative and out of line, and actually irrelevant, because it was in reference to her, not the Proposition 8 situation.
3.5.2009 5:15pm
Serendipity:
Just to be devil's advocate for a bit, isn't gay marriage actually a "conservative" goal. Ultimately, gay marriage seems to reinforce the idea that the only way to acceptably live or have a normal family, or be viewed as a full citizen is to be in a monogamous relationship with one other individual and somehow have 2.2 children. Given that we subsidize this monogamous lifestyle through tax credits and all sorts of other things, won't gay marriage actually result in another group of "second-class citizen," namely those heterosexuals and homosexuals who choose to be polyamorous, remain single, or just not have any children or a traditional family? Why should those folks be further rendered second class citizens more than they already are by expanding the class of folks who benefit from the subsidization of marriage and the monogamous lifestyle?
3.5.2009 5:29pm
Greg Q (mail) (www):
torrentprime,

In case you hadn't noticed, "judicial" thugs have been assaulting our fundamental right to vote, and have our vote matter, for some time now. And yes, that bothers me a great deal. The fact that you applaud such actions is clear demonstration of your hatred of democracy.

If a Muslim majority in the US supports a Constitutional Amendment to overturn the First Amendment, and gets their Amendment passed, then they are free to do so. Do I think they should win? No. But as I'm not the God-Emperor of the US, my disagreement is not more important then the majority's vote.

Which, after all, is why Barack Obama is President, rather than Mitt Romney.
3.5.2009 5:29pm
Greg Q (mail) (www):
Why don't these anti-gay-rights people realize judicial review protects their majority rights from encroachment as much as they protect the minority?

Because they don't in fact do so. Left wingers don't care at all about individual rights, or individual freedom. Helping people avoid responsibility for their actions? They love that. helping people they like force their beliefs on everyone else? That, they believe, is great. (And, BTW, is the whole point of the CA SC SSM decision.)

But allowing people to make their own decisions (like take a job for less than the minimum wage, or refuse to rent their house to an unmarried couple, or refuse to join, or give money to, a Union)? Not a chance.

Honest judicial review might protect our rights. But that's not what's happening here. There's no right to SSM, in any state in the US. The fact that three state SCs have forced that "right" on three states is not "judicial review", it is judicial tyranny.

And the only people that protects are people who don't deserve protection.
3.5.2009 5:37pm
Greg Q (mail) (www):
MarkField,

If you think the Founders approved of "judges" rewriting the Constitution in order to force their personal beliefs on everyone else (which is what has happened in every single pro-SSM ruling), you're utterly delusional.

If you think that the Founders didn't favor checks and balances, you are utterly ignorant.

CA's Constitutional Amendment by Initiative process gives the people of CA a check on out of control judicial tyrants. That makes it an inherently good thing, to anyone who values democracy at all.

The Constitution starts with "We The People" for a reason. There used to be a time when people who called themselves "liberals" understood that.
3.5.2009 5:42pm
ray_g:
zuch: Actually, there are two things going on here, and I didn't clearly delineate them. First, there is the matter of the issue of SSM marriage. But second, now there is the question of whether Proposition 8 is an ammendment or a revision. What I am trying to say is that it is my opinion that, regardless of how they stand on SSM marriage, the voters were told, and believed, that what they were voting on was an ammendment, not a revision, and the argument that a short, simple, unambiguous, single issue statement constitues a revision is looked upon as absurd.
3.5.2009 5:45pm
Greg Q (mail) (www):
Tony Tutins,

The best argument for Pro 8 was this:

There is not, in fact, a right to SSM in the CA State Constitution. The 4 "justices" who created that "right" were abusing their powers when they did it. As such, a proper respect for democracy demanded a vote for Prop 8, and against judicial tyranny.

The best argument against SSM is this:
Our society exists because of heterosexual couples having children, and raising them to be productive and functional citizens. It therefore makes sense that our society should provide benefits to those couples We call that set of benefits "marriage".

Do same sex couples provide society the same benefit as those married heterosexual couples? No? Then they don't deserve the benefits.

Yes? Prove it.

Don't whine about all the other couples that get the benefits even though they don't have kids. That's irrelevant. We can chose to give people benefits even if they haven't earned them. (That's that whole democracy thing which you lefties hate so much.) If you're going to argue that same sex couples deserve to be able to get married, fine: prove it. Show that their marriages will be just as valuable to society as heterosexual marriages are.

If you can't, then it would be irrational for society to give them teh rewards that they haven't earned.
3.5.2009 5:53pm
Clayton E. Cramer (mail) (www):

We'll keep that in mind when, a few years down the road, the citizens of California do make it a fundamental right, via the initiative amendment process. And I'm sure, based on your faith in the process, you won't whine even a little bit about it.
I wouldn't be happy about the result, but that would be clearly constitutional. Connecticut's legislature created civil unions a couple of years back--not the judiciary. Bad decision? I think so. But the people are the ultimate source of political legitimacy.

There is no fundamental right to marry anyone and everyone. If you had arged before the Court in Loving that there was a right to marry the same sex, the justices would have thought you crazy--and probably phrased the decision a bit more carefully.
3.5.2009 6:09pm
LN (mail):

Just to be devil's advocate for a bit, isn't gay marriage actually a "conservative" goal. Ultimately, gay marriage seems to reinforce the idea that the only way to acceptably live or have a normal family, or be viewed as a full citizen is to be in a monogamous relationship with one other individual and somehow have 2.2 children. Given that we subsidize this monogamous lifestyle through tax credits and all sorts of other things, won't gay marriage actually result in another group of "second-class citizen," namely those heterosexuals and homosexuals who choose to be polyamorous, remain single, or just not have any children or a traditional family? Why should those folks be further rendered second class citizens more than they already are by expanding the class of folks who benefit from the subsidization of marriage and the monogamous lifestyle?


I think this is completely correct, BTW.
3.5.2009 6:17pm
ray_g:
zulu: "If so, aren't we asking the wrong "question" on that referendum? Or are people "answering" the wrong question, and not that put to them?"

I don't think it is either of those. You can't look at Proposition 8 in isolation. There was a previous initiative, Proposition 22, which was not a Constitutional ammendment or revision, which the CA Supreme Court ruled unconstitutional. So, the question was already answered, but the voters were told it was the wrong answer, or perhaps more properly an invalid answer, so the question was asked again in a slightly different way (i.e, now it is an ammendment). The answer was the same, now the voters are waiting to see if the court thinks it is right this time.
3.5.2009 6:26pm
MarkField (mail):

If you think the Founders approved of "judges" rewriting the Constitution in order to force their personal beliefs on everyone else (which is what has happened in every single pro-SSM ruling), you're utterly delusional.

If you think that the Founders didn't favor checks and balances, you are utterly ignorant.


I like to think I'm neither, but then again I'm signing my own scorecard on that.

You didn't respond to my point. If you just want to rant, that's cool. If you actually want a discussion, let me know.
3.5.2009 6:32pm
Serendipity:
@LN
Guess I wasn't quite being devil's advocate, because that's actually what I think. Seems like true equality mandates the government be literally neutral and not really subsidize any one life style over any other, but, yeah, that's never gonna happen.
3.5.2009 6:33pm
David Schwartz (mail):
CA's Constitutional Amendment by Initiative process gives the people of CA a check on out of control judicial tyrants. That makes it an inherently good thing, to anyone who values democracy at all.
Yeah, nothing worse than an out-of-control tyrant just giving random rights to all kinds of people left and right.
3.5.2009 6:49pm
zuch (mail) (www):
Greg Q:
[torrentprime]: Why don't these anti-gay-rights people realize judicial review protects their majority rights from encroachment as much as they protect the minority?

[Greg]: Because they don't in fact do so. Left wingers don't care at all about individual rights, or individual freedom....
False. But even if true, irrelevant. We're talking about gays here, not "left wingers". But nice to know your animosity and mendacity knows no bounds.
Helping people avoid responsibility for their actions?...
So Mukasey, Gonzales, Yoo, and Dubya are "left wingers"?!?!?
They love that. helping people they like force their beliefs on everyone else? That, they believe, is great. (And, BTW, is the whole point of the CA SC SSM decision.)
Where's the "force" to foist unwanted "beliefs" on you? Can we please stick to the case at hand and not your paranoid fears? Thanks in advance.
But allowing people to make their own decisions (like take a job for less than the minimum wage...
... or marry the person they love, or....

Cheers,
3.5.2009 7:12pm
jonzyx (mail):
Martinned:

It shouldn't be that easy to abolish free speech, or any other fundamental right. In fact, one could argue that it ought to be outright impossible. (Some modern constitutions, such as the German Basic Law, forbid the amendment of certain sections.)

David:

Yeah, nothing worse than an out-of-control tyrant just giving random rights to all kinds of people left and right



Lets assume that a hypothetical Court ruled that cows are persons with all the fundamental rights due to persons by the California Constitution.

If no fundamental rights should be stripped of persons once they are granted by the court, are they available for marriage?
Or is there perhaps a remedy available to "the people" of a state/nation if they feel that the Court has become "an out of control tyrant just giving random rights to all kinds...?"

Whether you agree with the amendment process or not, it within the power of the people to make the rules for themselves. In a democracy it is not a question of whether the majority can do something, but simply how large the majority has to be before its will is accomplished.
3.5.2009 7:19pm
zuch (mail) (www):
ray_g:
What I am trying to say is that it is my opinion that, regardless of how they stand on SSM marriage, the voters were told, and believed, that what they were voting on was an ammendment, not a revision, and the argument that a short, simple, unambiguous, single issue statement constitues a revision is looked upon as absurd.
And what I tried to say is that you claim that "large part" of the people voted not to ban gay marriages but rather to stick a thumb in the eyes of the judges. And I ventured further that a similar portion probably also were voting in the hope or expectation that gays would be denied civil rights outside the simple denial of the title "marriage". Which makes this "simple, unambiguous, single issue statement" not quite so simple. And then there's the issue as to exactly what happens to those already married and whether they are now forced to "divorce", etc. (see here for some of the complications WRT that...) Thus, this "simple, unambiguous, single-issue" proposition is not quite that simple ... nor is it straight-forward ... and as such might be considered more of a sweeping "revision" ... or fatally flawed for lack of specificity ... or both. In part, I think these problems are on of the most severe defects in any initiative system; people don't know what they're voting on, nor can they be reliably judged to see the ramifications and complications; better to leave law-making to the professionals, IMNSHO. When it comes to amending a constitution, that goes double, and this may be why the state of California put in the two-tiered "amendment"/"revision" distinction in the first place.

Cheers,
3.5.2009 7:25pm
zuch (mail) (www):
Greg Q:
The best argument against SSM is this:
Our society exists because of heterosexual couples having children, and raising them to be productive and functional citizens. It therefore makes sense that our society should provide benefits to those couples...
Then you think I shouldn't have been able to marry my wife, eh? If that's the "best argument", you have a rather weak case....

Cheers,
3.5.2009 7:29pm
ReaderY:
Quite correct. The question of whether a change represents an amendment or revision simply has nothing to do with whether or not one likes its contents.
3.5.2009 7:55pm
David Schwartz (mail):
If no fundamental rights should be stripped of persons once they are granted by the court, are they available for marriage?
Or is there perhaps a remedy available to "the people" of a state/nation if they feel that the Court has become "an out of control tyrant just giving random rights to all kinds...?"

Whether you agree with the amendment process or not, it within the power of the people to make the rules for themselves. In a democracy it is not a question of whether the majority can do something, but simply how large the majority has to be before its will is accomplished.
Nice argument, but I'm not sure what it argues against. It is a strawman on at least two accounts.

First, nobody denies that the people have the right to revise, amend, rewrite, or do whatever they want to their constitution. The question is what legal process does the constitution itself require for them to do so.

Second, nobody said that that this applies to "fundamental rights once they are granted by the court". It applies to actual fundamental rights, whether or not recognized by the courts.

Neither courts nor constitutions can create fundamental rights. They can either acknowledge them or not. We can discover new rights we didn't previously know existed, such as the right to equal treatment from your government regardless of your skin color, race, sexual orientation, religious beliefs, and so on.
3.5.2009 7:56pm
Bpbatista (mail):
Of course, nothing prevents the amendment of the federal Constitution in such manners either.
3.5.2009 7:57pm
Tommy J (mail):
just throwing out a thought here ...

whatever your legal viewpoints are on Prop 8, please remember that within a decade another amendment will likely come along which this time will reinstitute gay marriage in the state (the 2000 amend. was something like 62% against gay marriage; last year, only 52% .... you can follow the trend)

in light of the above, is your legal reasoning still the same on the matter ? (if so, kudos for consistency) ...
3.5.2009 8:34pm
Eli Rabett (www):
Starr may have lost the case right there. If they rule for the amendment, they open the door to exactly the kinky stupidity he was advocating for.
3.5.2009 8:43pm
Putting Two and Two...:
It looks as though, in order to protect the word "marriage", social conservatives have obliterated the word "inalienable".

Anyone think that's a fair trade?
3.5.2009 8:53pm
PC:
It looks as though, in order to protect the word "marriage", social conservatives have obliterated the word "inalienable".

Anyone think that's a fair trade?


I think it's more interesting that conservatives are admitting that the government has a responsibility to promote the general welfare. That's going to be a fun slippery slope to slide down.
3.5.2009 8:59pm
ray_g:
"And what I tried to say is that you claim that "large part" of the people voted not to ban gay marriages but rather to stick a thumb in the eyes of the judges."

Yes, that is what I am saying.

"And I ventured further that a similar portion probably also were voting in the hope or expectation that gays would be denied civil rights outside the simple denial of the title "marriage"."

Those people certainly exist, but they are not the group I am talking about.

"Which makes this "simple, unambiguous, single issue statement" not quite so simple."

The issue may not be simple, but the ammendment certainly is.

"And then there's the issue as to exactly what happens to those already married and whether they are now forced to "divorce", etc."

I agree, this is bad, but it could have been avoided, it was proposed that the marriage licenses not be granted until the case had been decided by the court, but the SSM proponents would have none of that, IMO in hopes of gaining strategic advantage by causing just such a dilemma. So I'm not as sympathetic as I might have been.

"In part, I think these problems are on of the most severe defects in any initiative system; people don't know what they're voting on, nor can they be reliably judged to see the ramifications and complications; better to leave law-making to the professionals, IMNSHO."

I disagree, I think that people do know what they are voting on. As far as seeing ramifications and complications, IMO the people are no worse at this than the legislators.

"When it comes to amending a constitution, that goes double, and this may be why the state of California put in the two-tiered "amendment"/"revision" distinction in the first place."

I have no idea what the reasoning was behind the "ammendment/revision" distinction. That happened long before I came here. And I agree that the initiative process is not the way to ammend or revise a constitution.

I'm not going to defend California's initiative system, it has problems and I'll listen to suggestions on how to change/improve it. But if your argument for major change or elimination of it is "because the voters are stupid" or "the politicians know better than the voters", well, there is no point in further discussion.
3.5.2009 9:14pm
David Schwartz (mail):
In part, I think these problems are on of the most severe defects in any initiative system; people don't know what they're voting on, nor can they be reliably judged to see the ramifications and complications; better to leave law-making to the professionals, IMNSHO.
The same thing happens in legislatures. There are many, many cases where the legislators could agree on a particular set of words but not on what those words mean.
3.5.2009 10:44pm
Lior:
I cannot fathom the non-response to "jonzyx"'s abominable post above, intended to remind us that certain human beings are no better than dogs.

Such statements should not be tolerated here.
3.5.2009 11:43pm
Tony Tutins (mail):

I cannot fathom the non-response

A prime directive for Internet discussion: Do not feed the trolls. They operate on the "Even bad attention is good attention" model. If you think a certain post is abominable, let the poster know.
3.6.2009 1:01am
cmr:
Another directive for Internet discussion: pearl-clutching and crying wolf makes you look more inadequate than righteously indignant.
3.6.2009 1:05am
Tracy W (mail):
Consider this. On Election Day, I stood with a sign at a busy intersection trying to convice people not to destroy my own marriage. Can you imagine having to carry a sign up and down a sidewalk begging people not to divorce you from your own wife? And you want to say the people that would vote to do such a vile thing were kind-hearted?


Down from the Ivory Tower - how do you think rights like freedom of speech, freedom of religion, female suffrage, came about in the first place? They weren't granted by an all-gracious soverign, instead the proponents had to convince a lot of people to support that right. Sometimes they then had to violently rebel in order to get those rights written into law (and of course for a violent rebellion to be successful you need a lot of people on your side).

I don't think there is anything vile about expecting you to convince other people that you are right rather than having it laid down by law without you having to dirty your hands with any public argument. Marriage is all about public recognition, it is not just a matter between two individuals (Prop 8 presumably did not force you to evict your partner). You want the public to recognise your marriage, what's so terrible about having to persuade them?

I think it's bigoted to just expect to be able to exempt yourself from the rough-and-tumble of public life. People who are opposed to gay marriage may indeed also be bigoted but that doesn't excuse your attitude - sadly there appears to be no shortage of bigotry.
3.6.2009 3:28am
Passing By:
If voters approved a resolution "repealing all provisions of the Constitution not affecting the basic structure of the state government", that could be done by majority vote?

And I thought California's history of initiatives was enough of a parody of democracy in action, even before this latest nonsense.
3.6.2009 9:28am
zuch (mail) (www):
What about the argument that, if stripping fundamental rights (or other fundamental cornerstones of the constitution including its implicit protection against simple majority whim) is possible on a 50% vote, the exception is capable of piecemeal swallowing the whole, and there is then no distinction between a constitutional provision and any old law passed by simple majority vote every day?

As the update says, there must be some rational basis for delineating "revisions" from "amendments" (otherwise known as publicly passed majority rule). Are we really going to say that the dividing line is at the level of prohibiting "amendments" passed by minority vote? That would seem to be what Starr is claiming (he consoles the petitioners with the claim that the legislature has kindly consented to give a "bundle of rights" to the petitioners ... but what the legislature gives [by majority vote], it can easily take away the same way).

Agreed, the California provision for "amendment" by simple majority vote is not entirely rational, and perhaps no consistent (and logical) distinction can be made. If so, that needs fixing.

Cheers,
3.6.2009 10:29am
zuch (mail) (www):
ray_g:I'm not going to defend California's initiative system, it has problems and I'll listen to suggestions on how to change/improve it. But if your argument for major change or elimination of it is "because the voters are stupid" or "the politicians know better than the voters", well, there is no point in further discussion.I didn't say voters were stupid (but it is a fact the 50% are stupider than average). They are uninformed and not trained in law (which is what they're being asked to decide on). They don't always understand how the laws they pass will likely influence actual legal outcomes. Those trained in the relevant case law and precedent (and legal procedure) can look for problems with interpretation, ambiguities, loopholes, etc. and be more sure that the intent of the law is achieved. I don't think the politicians are necessarily all smarter than the public (but, by and large [excepting such as Tom DeLay and Sarah Palin], they are). But they are elected by the public, and as such should prove a vehicle for the public's interests (and if they don't they can be voted out).

One of the problems with "amendment" majority vote (at least for cornerstone or foundational law) is that it doesn't have hysteresis. For stability, you want some degree of hysteresis so that important and foundational principles aren't flipped back and forth with 49%/51%/49% variations in public sentiment, with the ensuing unfairness of unsettled law and inability to reasonably rely on an an outcome. That we have here, where people were hoping to be married for life, and then had that yanked on them in short order. Unlike laws as to whether pot smokng today is legal while it might not be tomorrow, the decision as to domestic arrangements is one with ongoing ramifications; one that one relies on to exist substantially the same for quite some time.

Cheers,
3.6.2009 11:18am
zuch (mail) (www):
David Schwartz:
[Arne]: In part, I think these problems are on[e] of the most severe defects in any initiative system; people don't know what they're voting on, nor can they be reliably judged to see the ramifications and complications; better to leave law-making to the professionals, IMNSHO.

The same thing happens in legislatures. There are many, many cases where the legislators could agree on a particular set of words but not on what those words mean.
True, but the legislators (or their legal staff) are better trained to watch for such ambiguities, to understand to some extent how the interpretations will likely play out in court (which is the ultimate repository for disputes of law), and to make sure that their intent is likely to be fulfilled. See my previous post on this.

Cheers,
3.6.2009 11:22am
Soronel Haetir (mail):

One of the problems with "amendment" majority vote (at least for cornerstone or foundational law) is that it doesn't have hysteresis. For stability, you
want some degree of hysteresis so that important and foundational principles aren't flipped back and forth with 49%/51%/49% variations in public sentiment,
with the ensuing unfairness of unsettled law and inability to reasonably rely on an an outcome. That we have here, where people were hoping to be married
for life, and then had that yanked on them in short order. Unlike laws as to whether pot smokng today is legal while it might not be tomorrow, the decision
as to domestic arrangements is one with ongoing ramifications; one that one relies on to exist substantially the same for quite some time.



Then the court should have held off a bit in their mad rush. It is almost as if the CSC hoped by issuing their ruling and then not staying it until the amendment either didn't make the ballot or until after the election they hoped people would change their mind and vote no. This entire episode has appeared to be a huge slice of arrogance on the part of the CSC. And now they have todeal with it.

As for people who married in the meantime, they did so knowing that there was already a huge uncertainty over whether it would last.
3.6.2009 11:44am
Soronel Haetir (mail):
I would also say that the entire "a bare majority can't take rights away from a minority" argument misses the fundamental point that those boundaries are supposed to be set up ahead of time, not decided on an ad hoc basis. While the US constitution has a high enough threshold that any lowering of the bar is extremely unlikely, California is evidently not so situated. And that is probably a good thing, otherwise there truely would be rule ba judicial tyranny.
3.6.2009 11:54am
davis (mail):
Starr's argument is a near-perfect exemplification of the fundamental error of legal positivism. While recognizing that a constitution is the measure of legal justice, it fails to recognize that constitutions should also be measured by natural justice. All failures to acknowledge both aspects of just constitutions are reducible to endorsement of organized violence as a sufficient justification for law. Until legal positivists come to see this, they will continue to be the intellectual heirs of Thrasymachus.
3.6.2009 12:03pm
cmr:

Down from the Ivory Tower - how do you think rights like freedom of speech, freedom of religion, female suffrage, came about in the first place? They weren't granted by an all-gracious soverign, instead the proponents had to convince a lot of people to support that right. Sometimes they then had to violently rebel in order to get those rights written into law (and of course for a violent rebellion to be successful you need a lot of people on your side).

I don't think there is anything vile about expecting you to convince other people that you are right rather than having it laid down by law without you having to dirty your hands with any public argument. Marriage is all about public recognition, it is not just a matter between two individuals (Prop 8 presumably did not force you to evict your partner). You want the public to recognise your marriage, what's so terrible about having to persuade them?

I think it's bigoted to just expect to be able to exempt yourself from the rough-and-tumble of public life. People who are opposed to gay marriage may indeed also be bigoted but that doesn't excuse your attitude - sadly there appears to be no shortage of bigotry.



I completely agree. That again is why I hate the allusions to the civil rights movement. Gay rights advocates want all the benefits but want to do little of the work that went into it to make it a "movement" in the first place.

Do you think it never occurred to MLK that him having to march and protest and sing "We Shall Overcome" and wear their Sunday's finest...and still get pelted with pneumatic hoses and attacked by dogs and have rocks thrown at them, was beneath him? That what he was working for should've been self-evident and he shouldn't have to go through all this red-tape song-and-dance stuff to get his civil rights?

Get over yourselves! You want special status, not equal status.
3.6.2009 12:25pm
zuch (mail) (www):
Soronel Haetir:
Then the court should have held off a bit in their mad rush. It is almost as if the CSC hoped by issuing their ruling and then not staying it until the amendment either didn't make the ballot or until after the election they hoped people would change their mind and vote no. This entire episode has appeared to be a huge slice of arrogance on the part of the CSC. And now they have todeal with it.
I was talking about one reason for hysteresis in constitutional amendments (which is one impetus for supermajority approval). This makes it harder to make the first change (and that is what an amendment is), and also any subsequent changes. I'd note that stare decisis, such standards as "clearly wrong", and judicial comity and respect tend to put a kind of hysteresis in place for judicial decisions as well. But the first decision of a court on an issue is not encumbered with prior precedent. They are required to give a ruling on all matters properly brought before them. Why you think they should decide one way here in the first instance, to avoid "upsetting the apple cart", is not obvious. It's not like the ruling changed marriage for those that were already married ... nor did it require anyone who wasn't married previously to suddenly get married if they didn't want to. I don't think that anyone's expectations were dashed by the CSC decision last year.

Cheers,
3.6.2009 12:59pm
David Schwartz (mail):
I would also say that the entire "a bare majority can't take rights away from a minority" argument misses the fundamental point that those boundaries are supposed to be set up ahead of time, not decided on an ad hoc basis. While the US constitution has a high enough threshold that any lowering of the bar is extremely unlikely, California is evidently not so situated. And that is probably a good thing, otherwise there truely would be rule ba judicial tyranny.
The problem is that those rules are based on notions that are incompletely understood and evolve over time, such as "equal protection". At one time, it might have been though that "equal protection" only meant equal protection among heterosexual, white males.

If you want to avoid what you consider rule by judicial tyranny, you have to define rights in foundational documents sufficiently precisely that our understanding of them cannot grow. The problem is, if you do that, you wind up with a much worse system. For example, there could never be a right to due process, because judges have to decide what process is due.
3.6.2009 1:06pm
KWC (mail):
Thank you, Dale!

Opponents of Proposition 8 did not do enough to exploit many of the weaknesses in Starr's arguments. Starting with this one. Under his theory, the equal protection clause (which was ratified at much more than a simple majority level) could be completely eviserated by a series of (or even a single?) simple-majority amendment to the Constitution.

His arguments that: (1) it's improbable, (2) the federal constitution is there as a backup, and (3) same-sex couples have domestic partnerships are red herrings. They should play no role whatsoever in addressing the state constitutional question before the court. I don't think anyone did a good job pointing that out from the Opp. of Prop. 8 side.

I hate to say it, but I think Kennard is quite comfortable in her seat and is afraid of a constitutional revolution.

Corrigan will forever go down as the LGBT equivalent of Uncle Tom. While I respect her judicial integrity, I think it goes deeper than that. Her dissent in In re Marriages is weak.
3.6.2009 2:17pm
KWC (mail):
Greg Q:

People like you are only emboldened to make these arguments becuase LGBT people are openly considered second class citizens in this country. I would like to see you make these same arguments about Loving v. Virginia, Brown v. Bd. of Educ., or any case involving race or sex.

Of course, you will find a way to distinguish them, just as people like you found ways to distinguish sex from race, and race from national origin, and national origin from . . . . The list goes on and on. The game never changes; just the targets.

Thanks for showing us precisely why equality for LGBT people is necessary!
3.6.2009 2:24pm
zuch (mail) (www):
KWC:
Opponents of Proposition 8 did not do enough to exploit many of the weaknesses in Starr's arguments. Starting with this one. Under his theory, the equal protection clause (which was ratified at much more than a simple majority level) could be completely eviserated by a series of (or even a single?) simple-majority amendment to the Constitution.

His arguments that: (1) it's improbable, (2) the federal constitution is there as a backup, and (3) same-sex couples have domestic partnerships are red herrings.
Indeed, one defence Starr gave was that the basic protections given to gays and lesbians were left intact:
The initiative "does not erode any of the bundle of rights that this state has very generously provided," [Starr] said, but merely "restores the traditional definition of marriage."
But what the state gives, it can just as easily take away, and Starr said at other times that the state could remove even state free speech protections with such "amendments" ... and what's with this "very generously provided" rights?!?!? Do conservatives generally rely on the benevolence of the state?

Cheers,
3.6.2009 7:52pm
Tony Tutins (mail):

Do conservatives generally rely on the benevolence of the state?


To be sure. "He's from the government and he's here to help," is practically a Conservative Republican mantra.
3.6.2009 11:25pm
Randy R. (mail):
cmr:"Do you think it never occurred to MLK that him having to march and protest and sing "We Shall Overcome" and wear their Sunday's finest...and still get pelted with pneumatic hoses and attacked by dogs and have rocks thrown at them, was beneath him? That what he was working for should've been self-evident and he shouldn't have to go through all this red-tape song-and-dance stuff to get his civil rights?

Get over yourselves! You want special status, not equal status."

But of course, cmr fails to note that proponents of interracial marriage did nothing of the kind, and merely resorted in most cases to court filings to obtain their rights, culminating with Loving v. Virginia.

I guess that means, according to cmr, that interracial couples never 'got over themselves', and therefore today enjoy special status, not equal status.
3.8.2009 6:01pm
RJS (mail):
A lengthy comment and a brief question. Hope someone can answer the question.

As a former supporter of SSM on libertarian grounds, who has passed out petitions for same, and acted in local pro-LGBT productions;
The actions of the anti-prop 8 crowd show that they have no tolerance for, nor respect for the rights of those to whom they disagree (regardless of orientation).
Their tactics resemble the Democrat tactics against the blacks in the civil rights movement--intimidation, harassment (both of individuals and their employers), church vandalism, terrorism (anthrax scares), even court rulings with favorable judges.

Much of the argument here is about fairness and rights. The Pro 8 voters have shown themselves capable of allowing LGBT people to live and pursue their careers, politics and love lives. Many of the Pro 8 voters hire or serve LGBT individuals or couples, and respect their right to fight for what they desire in the courts of law or public opinion without risking careers or services.

The anti-prop 8 crowd has not shown the same tolerance, especially for Mormons. Indeed, they have targeted a historically discriminated group, and one a recent poll said is more disliked than almost any other (made it easier to target I guess).

I am still very much against harassment of LGBT people. I have and will continue to stake my reputation and abilities in their defense of life, love and liberty, as much as I have those rights.

I am also very much against harassment of others.
I am no longer an SSM supporter. Nor are many former supporter for the same reason: a group that will not respect the rights of others has lost our respect and will to fight for them.

For the question:
As other points of topic (much on another post) revolve around the status of current SSM marriages if Prop 8 is upheld and legal precedent, and as Mormons have been targeted for vilification; why has no one brought up the precedent of what happened to Mormon marriages when polygamy was outlawed?
What happened to those marriages, legally? I don't know. And why is that not a precedent?

Thank your for any answer to the question.
R
3.9.2009 5:02am
cmr:
But of course, cmr fails to note that proponents of interracial marriage did nothing of the kind, and merely resorted in most cases to court filings to obtain their rights, culminating with Loving v. Virginia.

I guess that means, according to cmr, that interracial couples never 'got over themselves', and therefore today enjoy special status, not equal status.


Randy, instead of bastardizing the issue of interracial marriage -- which shows your ignorance of it, anti-miscegenation laws, and what the ruling said -- why don't you take, like, twenty minutes and read the Wikipedia page for it. Then we can chat.
3.9.2009 12:57pm
zuch (mail) (www):
RJS:
I am also very much against harassment of others.
I am no longer an SSM supporter.
Yes, it's like gays and lesbians never get discriminated against, are never denied housing or jobs, never get beat up (or even murdered just for being gay.... But I'd note that the gummint has a lot of power to specify what it does, and less power to change the actions -- much less thoughts -- of private citizens. So you're in favour of the gummint engaging in discrimination against gays because some gays are (allegedly) intolerant?

Then there's the question as to why -- if we assume arguendo that some people are "intolerant" of the Mormons and other RW frothers -- the proper response is that we should counter that by discrimination against all gays. Just a FYI, I am personally very upset at the Mormon Church's stand on Prop. 8, the influence from out-of-state, the use of church money for political campaigns, etc.. And I may well want to boycott the Mormons or other groups that spear-headed Prop. 8. But I'm not gay. How could gummint discrimination against all gays here, on this rationale, be the proper response (when not even all gays are marching and agitating for boycotts, etc.)? How does that make sense to you?!?!?

Cheers,
3.9.2009 1:01pm
cmr:
What you just said doesn't make much sense to me.
3.9.2009 1:06pm
zuch (mail) (www):
RJS:
As other points of topic (much on another post) revolve around the status of current SSM marriages if Prop 8 is upheld and legal precedent, and as Mormons have been targeted for vilification; why has no one brought up the precedent of what happened to Mormon marriages when polygamy was outlawed?
For the record, I agree that Mormons were persecuted in the 19th century, and I think that the federal requirement that they ban polygamy as a condition of Utah statehood was one of the biggest violations of religious freedom in the history of the U.S. I can see no principled reason to deny Mormons polygamy should they so choose, and attribute this primarily to religious bigotry (but FWIW, marriage of underaged girls and forced marriages cross the line, in my mind). What boggles the mind is that the Mormons of all people should be so gung-ho to ban gay marriage when they had been treated so disgracefully. But, I guess, to some people two wrongs do make a right (or at least make the initial victims feel better).

Cheers,
3.9.2009 1:07pm
zuch (mail) (www):
cmr:
What you just said doesn't make much sense to me.
If this was in response to my previous comment: That's not something I can remedy. I suggest you take your own advice ("why don't you take, like, twenty minutes and read") and see if that helps.

Cheers,
3.9.2009 1:12pm
RJS (mail):
Hi zuch,

You are always an interesting read. Sometimes I think you argue just for the fun of it, which I appreciate.

But the question is what happened legally to the marriages after the gov't declared them illegal, and if that would have any relevance here. Though that is a topic on a different post, you've posted there.

Incidently, it is illegal for me to marry my partner where I live.


Cheers,
3.9.2009 2:00pm
zuch (mail) (www):
RJS:
But the question is what happened legally to the marriages after the gov't declared them illegal, and if that would have any relevance here. Though that is a topic on a different post, you've posted there.
That I don't know (and best just to admit that upfront). But I'd posted a different question, based on what you'd said earlier. I'm still interested in knowing what you think.

Cheers,
3.9.2009 2:52pm
cmr:

If this was in response to my previous comment: That's not something I can remedy. I suggest you take your own advice ("why don't you take, like, twenty minutes and read") and see if that helps.


OK, I did, and it didn't. I'm thinking it was because you were babbling incoherently and sarcastically for no reason than to say you disagreed with RJS.
3.9.2009 3:56pm
zuch (mail) (www):
cmr:

No, there were several points there. Do you agree that we should vote to eliminate by law (and with the force of gummint) the rights of an entire group because we think that some of the people in that group are "intolerant" or just rude personally?

Cheers,
3.9.2009 4:42pm
RJS (mail):
Hi zuch,

Sorry for the delay in answering, I don't have access while at work.

Thank you for your answer to my question. I don't know the case law or legal matters concerning the marriages already entered into in the 1800s. Perhaps it isn't relevant case law because most people agree it was unjust (your answer gave me this conclusion, maybe it is right, thanks). Hence, I hope that the marriages already entered into in the current CA battle continue, as the Prop 8 proponents allow.

I didn't answer your question because I doubted you really thought that all gays were for SSM, and doubted you really thought that all Mormons were against SSM, so figured it was rhetorical.

All laws discriminate. Giving benefits to one group is always at the expense of another.

When is a privilege a right, particularly one that trumps the rights of another group? Not even identical twins will agree in every case. After a few pages of arguments, you might convince me to lay aside my anger at the violence the No on 8 advocates are causing and again support SSM. But most people will not change, at least not quickly.
Society manufactured laws, and people gave up rights to Gov't to move beyond "Might makes Right," but left mechanisms in play so that questions concerning rights and privileges might be determined.

I don't even consider my own 6yr companionship a right. It is a privilege. To us, we are married, but not to the community. Who cares? So I don't get benefits, additional privileges that do come at the rights of others. Married women with children don't get all the welfare benefits of single mothers either, so some people chose to stay single due to gov't interference, or marry for monetary gain when marriage favors their circumstance.

Personally, I don't think the gov't should be in the marriage business. Gov't interference with sometime penalties for married couples and sometimes benefits has already caused the erosion of marriage that the religions groups fear from gay marriage.

Both sides of the argument have the lawful right to seek for laws in their favor. Any outcome will grant privilege to one group at the expense of the other.

The Prop 8 opponents have regressed to violence, which is wrong, just as it is wrong for anti-gay activists to use violence of any form against them. I side against the violent side here, as I sided against the violent side and perfomed in "The Laramie Project" locally after the death of Matthew Shepard.

People are violently mad at other people who financed Prop 8. So, where is the violence and anger at the much higher financing of the Prop 8 opponents? It doesn't exist (as much) because the current majority has decided violence does not make right. Historically, and demographically it seems to be happening already in CA, the current pacifist majority will be subsumed by a more violent former minority. What happens then to a small minority that has through violence bent the majority against it's will? Which minority now in CA with rising demographics is in favor of CUs, much less SSM?
No, letting the legal mechanisms play out is the way to go. I have no wish to see violence returned against the GL community due to the violence of many prop 8 opponents.

As for various groups that would like to legalize polygamy, it is not hypocritical, either as a matter of philosophy or strategy. I think it more hypocritical that gay opponents of Prop 8 live in fear of other gays for the crime of being different.

For philosophy, you would have to ask one of the poly supporters.

For mormon splinter groups, muslims and other polygamist proponents who have consistently failed already in federal courts, their best strategy would be to defeat the LGBTs in CA, and let this go to the Supreme Court. The problems with allowing 18,000 married L&Gs but not others is an easier issue for them to win on than on polygamy to get a SC ruling on non-discrimination in marriage, which will make a crack that the polygamists can exploit. It may also be the best strategy for the SSM proponents to force SSM nationally like Roe, but as with all games, it is a risk.
3.9.2009 10:46pm
RJS (mail):
Sorry, meant hypocritical that gay proponents of Prop 8 live if fear...
3.9.2009 10:51pm

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Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.