Cali Gay Marriage Opinion to be Released Today

[jcd11235 0]

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I don't think I'd say the majority of California voters are bigots.

Labeling those who disagree with you is easy. Actually discussing things with them is harder, but always more productive.

"A nose by any other name still smells."

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[quade 4]

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I don't think I'd say the majority of California voters are bigots.

What would you call them then, mindless drones willing to go along with the program laid out by their religious zealot leaders? Because that's kinda the only two options here.

quade -
The World's Most Boring Skydiver

[TomAiello 26]

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I don't think I'd say the majority of California voters are bigots.

What would you call them then, mindless drones willing to go along with the program laid out by their religious zealot leaders? Because that's kinda the only two options here.

There are a lot more than two options.

I'd call them "people who I disagree with."

If you really care about changing people's minds on an issue important to you, calling them bigots is pretty counterproductive. Engaging them in dialogue, although perhaps less satisfying, is a lot more likely to achieve your goals.

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[billvon 3,120]

>I don't think I'd say the majority of California voters are bigots.

I agree, nor do I think that everyone who voted for Prop 8 is a bigot. Our neighbors, for example, are pro gay marriage, but voted for prop 8 because they thought the ballot measure was to require gay marriage be taught to children. I think a lot of people were misled by ad campaigns claiming that.

However, if someone wants to systematically deny a right to a minority because they feel the minority is inferior, or is not approved by their religion, or allowing them rights will lead to the collapse of society or some such - they meet the definition of bigot.

[TomAiello 26]

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Our neighbors, for example, are pro gay marriage, but voted for prop 8 because they thought the ballot measure was to require gay marriage be taught to children. I think a lot of people were misled by ad campaigns claiming that.

And the correct response to that, which you've implied, is to discuss the actual issue with them and determine (and address) their objections (real or, as in this case, illusory).

If you'd just started off by calling them bigots (or, what was the other choice, mindless drones?), you'd probably not have been able to find out why they'd voted the way they did.

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[quade 4]

Call them what you will.

I've been upset about this entire concept since before the election even took place and maybe I'm not exactly thinking correctly. I do KNOW that the some of the voters probably aren't bigots and are just dupes for their religious leaders, so yeah, maybe my original response to Mike was -slightly- over the top.

It really bothers me though that crap like this comes in from a religious organization based in another state.

I'm all for the 1st Amendment, but if religious organizations want to keep their tax exempt status, they should have to keep out of politics. I don't think they should be allowed to have it both ways.

quade -
The World's Most Boring Skydiver

[MikeForsythe 0]

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If marriage is a religious institution, then the government has no business recognizing any marriage.

I agree, that is what I said.

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Bigotry under the guise of religious beliefs is still bigotry and still wrong.

Having religious beliefs that are different than yours does not automatically make it bigotry.

Time and pressure will always show you who a person really is!

[billvon 3,120]

>Having religious beliefs that are different than yours does not automatically make
>it bigotry.

Correct. But having a bigoted religious belief does not make it non-bigoted. If someone is a devout Baptist and believes that blacks should not be allowed to marry whites based on their religious values - they are still a bigot. Even if they cite biblical passages (and court decisions) to support their view.

[jakee 1,596]

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Marriage is a specific religious term

Which religion? Does this mean that only people married under the rites of one particular religion (or group of religions) can use the word?

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regarding a man and a woman

Can you provide me with your understanding of the etymology of the word that leads you to that specific conclusion?

Do you want to have an ideagasm?

[jcd11235 0]

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Having religious beliefs that are different than yours does not automatically make it bigotry.

Correct. Nor have I ever claimed otherwise. Of course, we aren't discussing how people believe relative to me. We are talking about people who voted for an amendment to enshrine discrimination in their state constitution. That being the case, there seems to be a strong correlation between the supporters of Prop 8 (or similar amendments nationwide) and bigotry.

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[MikeForsythe 0]

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Ya know what Mike . . . it kinda does.

It kind of does means it also kind of doesn’t. Silly argument.

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Prop 8 was extremely mean spirited. Voting for it was a vote for hate and certainly not a very "Christian" thing to do.

So you are saying that everyone that voted for it did so because they were "extremely mean spirited"? Try again.

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Sorry, but the truth hurts sometimes.

Yes it does, when it is the truth, but that is not the case here.

We had a similar amendment question here in Florida (passed by a super majority). I voted for it because I don’t think the government should be in the marriage business. If the same question was on the ballot for heterosexual couples I would vote to ban that too. So if I am against the government marring anyone how does that make my vote "extremely mean spirited"? And if that is how you truly feel then by definition you would be the bigot that others here have thrown the term around without justification or knowledge. So what is it Bill?

Time and pressure will always show you who a person really is!

[billvon 3,120]

>So what is it Bill?

He's Paul; I'm Bill.

[lawrocket 3]

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what sort of case could be put in front of federal courts to challenge it?

Pretty much a 14th Amendment challenge. This issue was not raised in these cases - it was decided wholly on California law, so this decision does not grant itself fo an appeal straight to the US Supreme Court. Instead it would probably have to start as petitions in federal court by a person who was denied a marriage license.

They would likely also challenge the Defense of Marriage Act, which is that the Feds don't recognize gay marriage. I'd like to see DOMA challenged because I think it is an unconstitutional limitation on the full faith and credit clause. I think a case was filed a couple of months ago in LA or Orange County challenging DOMA and Prop 8 as against the Federal Constitution.

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but currently the federal government still doesn't recognize legal gay marriages made in maine, iowa, massachussetts, etc. right?

DOMA means that the feds do not recognize any gay marriage at all. This actually has practical effect, since division of retirements in divorces are covered by ERISA (federal law) which does no provide for recognition of a Qualified Domestic Relations Order for gay marriages without some explicit allowance in a plan's language.

So there are issues with federal non-recognition.

My wife is hotter than your wife.

[MikeForsythe 0]

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Correct. But having a bigoted religious belief does not make it non-bigoted. If someone is a devout Baptist and believes that blacks should not be allowed to marry whites based on their religious values - they are still a bigot. Even if they cite biblical passages (and court decisions) to support their view.

Nice try Bill, lets leave out the red herring and your usual extreme examples and address the issue here. Do you agree or not that having a religious view automatically makes you a bigot?

Time and pressure will always show you who a person really is!

[MikeForsythe 0]

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He's Paul; I'm Bill.

Too many dam greenies

Time and pressure will always show you who a person really is!

[billvon 3,120]

> Do you agree or not that having a religious view automatically makes you a bigot?

?? Not at all. You can have a religious view and not be a bigot. You can be a bigot and not be religious. You can be both, or neither.

However, claiming that a bigoted view is "religious" does not make it suddenly non-bigoted.

[rehmwa 2]

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>So what is it Bill?

He's Paul; I'm Bill.

they don't even dress the same

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[MikeForsythe 0]

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they don't even dress the same

Yeah they do, I have seen them both in jump suits at the same time.

Time and pressure will always show you who a person really is!

[jcd11235 0]

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>So what is it Bill?

He's Paul; I'm Bill.

they don't even dress the same

Which one doesn't put his pants on one leg at a time?

Math tutoring available. Only $6! per hour! First lesson: Factorials!

[lawrocket 3]

Okay, folks:

First - I'd recommend that all of you actually read the opinions. http://www.courtinfo.ca.gov/opinions/documents/S168047.PDF

Now, here's my sumary and some takes upon skimming it and pulling what I thought was important, instructive, etc., and a little commentary, too.

Page 1-13 - summary of the issues and holdings.

Pages 14-24 - a history of Prop 8.

From 24-43 – a discussion of the history of the gay marriage cases in California, which spawned Prop 8.

Pages 43-84 - a history of thehistory of the California Constitution, legislation, and important cases on amendment/revision and constitutional structure and powers (a fascinating read and highly informative for wonks like me.)

Now to some of the analysis and holdings. First, Amendment v. Revision:
On page 84 the majority states, “From a quantitative standpoint, it is obvious that Proposition 8 does not amount to a constitutional revision.” They say that qualitatively, it is also not a revision because it does not make “far reaching changes in the nature of our basic governmental plan.” (p.85) In analyzing revision v. amendment, the court states that “in order to constitute a qualitative revision, a constitutional measure must make a far reaching change in the fundamental governmental structure or the foundational power of its branches as set forth in the Constitution.” (p.89) (my note: they extended "revision" to say it "must" change the governmental plan.)

On Page 92, the court reasons that Prop. 8 does not "strip" or "eliminate" a fundamental right, because gays and lesbians may continue to receive all the costs and benefits of marriage under California law – they just can’t call it marriage (My note: here’s an opening to a “separate but equal” argument, which was not raised in these cases – I think petitioners deliberately chose not to raise itfor future strategic reasons.)

Page 93 lists Amendments that granted rights that were not revisions to show that this is not unprecedented.

Page 95-96 is interesting. It describes how Prop 14 (which repealed a statute that barred racial discrimination in housing rentals and sales) was an amendment “subsequently was held invalid under the federal Constitution.” (Italics were in the court’s opinion – a clear signal that this court will entertain a Federal Constitutional equal-protection argument.) But then the court discusses through Page 100 circumstances in which an amendment has been used to take away certain rights, privileges or immunities and still be an amendment.

On p. 100, the court stated:

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“had this court rejected the constitutional challenges to the existing marriage statutes in its decision in the Marriage Cases, supra, 43 Cal.4th 757, and had the people responded by adopting an initiative measure amending the privacy, due process, and equal protection provisions of the state Constitution to guarantee same-sex couples equal access to the designation of marriage, that measure would be viewed as a constitutional amendment that properly could be adopted through the initiative process...

“But if an initiative measure thereafter was proposed to repeal those recently adopted changes to the state Constitution, that measure, under petitioners’ approach, would be designated a constitutional revision, and the people would be powerless to adopt that change through the initiative process.”

– The Court basically said you can’t have it both ways. (p.100-101)

From 100-109, the Court explains that initiatives are really powerful under the California Constitution. Other state Constitutions limit what can be done with them, but since the California Constitution has no such limitations, the court is bound to stick with what the Constitutions says.

109-118 compares and contrasts cases from other jurisdictions on amendments. On Page 118 is the holding:

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“For the reasons discussed above, we conclude that Proposition 8 constitutes a constitutional amendment, rather than a constitutional revision, and that therefore it is not invalid because it was proposed through the initiative process.”

P. 118 starts discussing the contention that Prop. 8 violated “separation of powers” because it “readjudicates” the courts’ decision in the Marriage Cases. (I called this line of argument, “Judges. The peasants are telling you that you are wrong. Don’t let the peons get away with it.”) The court responded that the People have a right to amend the Constitution. This discussion went through p. 122.

p. 122 is where the court starts to address the Attorney General’s brief. The AG agreed that Prop 8 is an “amendment” and that it does not violate “separation of powers.” The AG position was that the Court should invalidate Prop. 8 because it abrogates fundamental rights without a compelling interest - the “natural law” argument. The court said NO - the Constitution is the highest law. “There is no inalienable right or natural law which might arguably be above the California Constitution .”(Cite omitted) “The judiciary is but the creature of the Constitution, and can not judge its creator. It can not rise above the source of its own existence. If it could do this, it could annul the Constitution, instead of simply declaring what it means.” (cite omitted.) On p. 128, they concluded that the AG’s argument lacked merit.

P. 128 commences discussion of whether Prop. 8 invalidates the marriages already in existence. The Court said that if Prop 8 disallows the existing marriages, “such action would take away or impair vested rights acquired under the prior state of the law and would constitute a retroactive application of the measure.” (p. 131) The “retroactivity issue would pose a serious potential conflict with the state constitutional due process clause.” (p. 133) (this means that the state is taking a vested right without due process.)

Ultimately, the court found conflict between Prop. 8 and the due process clause of the California Constitution. Because Prop. 8 had no language that explicitly invalidated marriages already in existence, the court found that the balance weighed in favor of non-retroactivity. (through p. 135)

135-136 is the end summary of the holdings. Authored by Chief Justice George (a guy I would LOVE to see on the SCOTUS, though he’s about 69 now. He cannot be pinned as liberal or conservative.)
Joined by Kennard, Baxter, Chin and Corrigan.

Kennard, in separate concurrence (p. 137), explains his role and why he agrees. In the Marriage Cases, he found that the Constitution as it was then supported the decision. Now:

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“Although the people through the initiative power may not change this court’s interpretation of language in the state Constitution, they may change the constitutional language itself, and thereby enlarge or reduce the personal rights that the state Constitution as so amended will thereafter guarantee and protect.” (p.138).

Because they could not invalidate Prop 8, the new language of the Constitution controls. Ended at p. 140.

Justice Werdegar writes a concurrence starting at p. 141 where she explains her agreement with the majority’s result but not with all the reasoning. She starts by saying that the original drafters would be horrified at how Amendments are used and how easily they are done. Werdegar says that “revision” does not demand a change of the governmental plan – that kind of change is merely one characteristic. Werdegar wrote that a constitution implies a fixed instrument of permanent nature. (p. 146).

“Amendment” means “addition” along the lines that will improve and help it carry out its function. “[A] revision is a more substantial or extensive change, an amendment a less substantial or extensive one.” She focuses on scope of quantitative change rather than mere structural quantitative change. She proposes on p. 148 a test of “whether Proposition 8 accomplishes a change of sufficient scope in a foundational principle of individual liberty as to amount to a constitutional revision.” Judge Werdegar concurs, but with the statement that it is up to all departments still to ensure “equal protection.” (p.150)

Moreno concurs and dissents (mainly dissents) starting on p. 150. Moreno states:

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“I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus 'represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof.'” (p. 152).

Moreno discusses “equal protection” at length. He finds that equal protection should be foremost for suspect minority classes, which includes gays under the Marriage cases. Here's a poignant quote:

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“Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment.” (p. 156).

He describes the initiative process but states, “there is no “underlying” principle more basic to our Constitution than that the equal protection clause protects the fundamental rights of minorities from the will of the majority. Accordingly, Proposition 8’s withdrawal of any of those rights from gays and lesbians cannot be accomplished through constitutional amendment.” (p. 161.)

Now Moreno hits a big point:

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“Proposition 8 entirely undermines the countermajoritarian nature of the equal protection clause and usurps the judiciary’s special constitutional role as protector of minority rights. Therefore, without deciding cases not before us, my reasons for concluding that Proposition 8 attempts a constitutional change that can only be accomplished through revision do not apply to a situation in which an electoral majority grants and then repeals rights.” (p. 172-173).

Whoa! Fundamentally, he argues that Prop 8 DOES constitute a change in his powers as a judge because he is prohibited from enforcing the equal protection rights of gays to marry because of this Proposition. Moreno added: “Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification.” (p. 174).

My thoughts on Moreno are that he stated quite nicely the reasons why I voted against Prop. 8. Problem – he views one portion of the Constitution to be supreme to another in doing this. As Orwell wrote, “All animals are born equal, but some are more equal than others.” He does not view the various portions of the Constitution with equal dignity under the law. While unequal dignity is fine with me in a sociological or political realm, it is inappropriate, in my thinking, for a judge to view any Amendment as inferior or superior to another. It also violates longstanding rules of interpretation. Moreno creates his own test that comes down to personal feelings.

I do not support Moreno's legal reasoning. I do support his political bent.

My wife is hotter than your wife.

[TomAiello 26]

Honestly, I think it's a great example of the failures of democracy. This is a clear case where a republic (a government holding a fixed body of law not subject to majority rule) would benefit the rights of a minority, even when the majority would restrict those rights.

Government is an instrument for the oppression of those not in power, to the advantage of those holding power. Such exercise of power is not automatically legitimized simply because 50.1% of the population supports it.

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[Shotgun 1]

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Our neighbors, for example, are pro gay marriage, but voted for prop 8 because they thought the ballot measure was to require gay marriage be taught to children.

Hmm, your neighbors must not be too bright if they really thought that. That was one of the simplest propositions I've ever seen, and if someone couldn't understand what they were voting for on that one, then I shudder to think how they interpret some of the propositions that require actually reading multiple pages.

I tried having discussions with people who were for Prop 8, but I could never get a logical answer. Lots of BS stuff about gay marriage being taught in schools, or about it ruining the sanctity of marriage (as if heterosexuals haven't already done that), but never an answer that actually made sense. And I'm usually pretty good about understanding all sides of an issue (whether I agree with them or not), but not this one.

[lawrocket 3]

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I voted for it because I don’t think the government should be in the marriage business.

Of course you realize that by voting for it you condone government's involvement with it. IT did not strip the government of "marriage" or preclude government from recognizing it.

Prop 8 did not keep government out of marriage. All it did was keep gay people out of marriage.

My wife is hotter than your wife.

[Andy9o8 2]

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If marriage is a religious institution, then the government has no business recognizing any marriage.

Correct. I have trouble understanding why we need the government to be in the marriage business at all.

Like it or not, governmental involvement in marriage is inevitable in modern times. That's because there must be a system of uniform regulation of such matters as, for example, inheritance, marital ownership of property ("tenancy by the entireties") - which in most states is not the same as "joint ownership"; and, of course, distribution of marital property, spousal support and alimony when a marriage dissolves. I really think it's unavoidable.

[Andy9o8 2]

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Marriage is a specific religious term regarding a man and a woman.

It is? I am an athiest. I got married by a man who was not affiliated with a religious group in any way at a casino in Las Vegas. Am I not married?

Well, you're certainly a gambler where the house has the overwhelming odds. So, yes.