# CA Supreme court asked to go both ways on Prop 8 **URL:** \ **Category:** The BBQ Pit\ **Created:** [December 20, 2008, 3:38am UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025 "2008-12-20T03:38:50Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [December 21, 2008, 6:40am UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/41 "2008-12-21T06:40:25Z")
Right. As you know, but maybe Matt doesn’t, things are different in the US. In the US, there’s a federal constitution as well as individual constitutions for each of the fifty states. Each state constitution has it’s own set of rights guaranteed to the citizens of that state. Since the passage of the 14th amendment, a series of US Supreme Court cases called the “incorporation cases” have guaranteed that states have to offer rights protections at least equal to the level protected by the federal government (For instance, a state can’t pass a law establishing a state religion or discriminate against people of a certain religion, because that’s prohibited by the first amendment to the US Constitution.) However, a state can guarantee rights not guaranteed by the federal government. For instance, in my state of Virginia, the constitution says that Virginians have the right to hunt, fish, and forage for game. That’s not a federal right…it’s just valid in Virginia. Likewise, the state courts can construe rights more broadly than the federal courts…California or Massachusetts courts can decide that sexual orientation is protected under the equal protection clause of the constitutions of those states, even though the federal courts haven’t decided that sexual orientation is protected under the equal protection clause of the US Constitution. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [December 21, 2008, 7:20am UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/42 "2008-12-21T07:20:31Z")
> [@KGS](#): > > Hopefully, it will bruise the Mormon interlopers who have no business interfering with our state’s politics. How much $$ was sent by NO on 8 supporters from out of state? ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [December 21, 2008, 7:23am UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/43 "2008-12-21T07:23:19Z")
> [@DrDeth](#): > > How much $$ was sent by NO on 8 supporters from out of state? Slightly more than was sent in by Yes on 8 supporters, IIRC. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [December 21, 2008, 7:33am UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/44 "2008-12-21T07:33:40Z")
> [@Miller](#): > > Slightly more than was sent in by Yes on 8 supporters, IIRC. While I know you were told there would be no math, here’s the database of contributors to the campaigns both supporting and opposing Prop 8. > **[Client Challenge](https://www.sfgate.com/webdb/prop8/)** I did find another site that said that out of state contributions for Prop 8 came to 10.7 million, out of a total of 36.1 million, and against Prop 8, 11.9 million out of 38.4 million. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [December 21, 2008, 11:55am UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/45 "2008-12-21T11:55:36Z")
> [@BrightNShiny](#): > > Yeah, what we have is this weird situation where there’s a carve-out to strict scrutiny for sexual orientation solely for the specific issue of marriage. But for everything else, in CA, sexual orientation is still subject to strict scrutiny. But that carve-out, as you put it, appears to have been done on an _ad hoc_ basis, rather than accomplished via duly-passed legislation. Can it be attacked on those grounds? ---
**Author:** ![matt\_mcl](https://avatars.discourse-cdn.com/v4/letter/m/7ab992/32.png) [@matt\_mcl](https://boards.straightdope.com/u/matt_mcl)\ **Post date:** [December 21, 2008, 12:07pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/46 "2008-12-21T12:07:06Z")
> [@Captain\_Amazing](#): > > However, a state can guarantee rights not guaranteed by the federal government. For instance, in my state of Virginia, the constitution says that Virginians have the right to hunt, fish, and forage for game. That’s not a federal right…it’s just valid in Virginia. Okay. And what you’re saying is that if there were, say, a ballot measure in Virginia (assuming Virginia has ballot measures) to withdraw that right, there could be no recourse to the 14th Amendment on the grounds that they were withdrawing rights and privileges from American citizens? Well, to my eyes that seems remarkably ineffective for a constitutional amendment, for reasons explained by **Northern Piper** , but of course I wasn’t consulted. 🆒 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 21, 2008, 1:27pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/47 "2008-12-21T13:27:21Z")
> [@matt\_mcl](#): > > Okay. And what you’re saying is that if there were, say, a ballot measure in Virginia (assuming Virginia has ballot measures) to withdraw that right, there could be no recourse to the 14th Amendment on the grounds that they were withdrawing rights and privileges from American citizens? Since the right to hunt and fish is a creature solely of the state constitution, then, no, if it were removed by the voters, there would be no claim under the federal constitution. (Virginia does not have direct ballot measures; an amendment to the state constitution must be passed by both the state senate and the House of Delegates by simple majority in two successive sessions, and then ratified by simple majority of the voters.) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 21, 2008, 3:14pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/48 "2008-12-21T15:14:46Z")
> [@BrightNShiny](#): > > I’ll just add for the sake of completeness, the 14 Amendment is technically not part of the Bill of Rights, which people usually limit to the original 10 Amendments. And states don’t necessarily have a section of their constitution which they call a “Bill of Rights.” I just used those terms because you seem to be using Bill of Rights interchangeably with Charter of Freedoms. Understood. I was just using Bill of Rights as a generic term for the portion of a constitution which entrenches individual rights, to explain the main differences between the two systems. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 21, 2008, 3:49pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/49 "2008-12-21T15:49:40Z")
> [@matt\_mcl](#): > > Okay. And what you’re saying is that if there were, say, a ballot measure in Virginia (assuming Virginia has ballot measures) to withdraw that right, there could be no recourse to the 14th Amendment on the grounds that they were withdrawing rights and privileges from American citizens? But there is a logic to it, **matt** - it would be odd if the protection of the 14th Amendment varied from state to state, depending on what’s in the state constitutions. It would also be odd if the effect of the 14th Amendment was that the people of a state could amend their constitution to add a particular right, and then be barred by the 14th Amendment from repealing that provision by the same process of a state constitutional amendment. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 21, 2008, 5:06pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/50 "2008-12-21T17:06:52Z")
> [@Polycarp](#): > > I see the point you were making with the comparison, as outlined in your later post. However, thanks to some hypocritical scum who seriously see no difference (both being morally outrageous to them), you can expect to find your drawing any such point, however valid, by that comparison, to elicit outrage from gay people. Consider how outraged you would be if someone compared your behavior with your wife to that of a child molester and the little girl he’s molesting. > > The proposition as I understand it is this: **Marriage** is a fundamental right. Asserted by Chief Justice Warren in Loving; to validate, conduct a _reductio ad absurdam_ and assert it is not; therefore any state can completely abolish marriage, nullifying any that exist and forbidding any future ons from being contracted. If you find this proposition indefensible, then marriage must be a right. > > Notice we are not talking about gay marriages yet – this addresses the basic concept of marriage. Now, like any other right, marriage may be regulated. Even the most absolutist defender of freedom if speech does not assert it gives someone the right to drive through a residential neighborhood at 3 AM in a truck with loudspeakers bellowing forth his message. We set a minimum age for marriage, assert that you can marry only one other person at a time, and not while an existing marriage is in force, etc. But any regulations or limitations on marriage must (a) have a legitimate secular purpose, not tied to a religious proposition, and (b) must be justified by a connection to a valid government purpose. Absent these criteria, prohibitions on marriage must fail. An anti-miscegenation statute such as the one the Lovings allegedly violated is an example of a law bereft of such a purpose, and therefore constitutionally void. > > The question therefore arises, What legitimate secular governmental purpose is so implicit in our society that it justifies prohibiting two persons of the same sex from contracting a marriage with each other, both being willing to do so, not already married, and of the age of consent for marriage? > > This is not a question of a “right to gay marriage” but rather of gay people’s access to the commonly held right of marriage. > > Further, the dissolution of 18,000 legal marriages contracted between May and November 2008 by the action of Section 7.5 (the constitutional provision enacted by Proposition 8) is fraught with consequences. Can a state dissolve a marriage between two people who contracted a legal marriage and wish to remain married by act of law? Could the Virginia legislature decide that **Bricker** and his wife, despite their wishes, no longer are married? Or North Carolina do likewise to **Liberal** and **Edlyn** , or to myself and my wife? What if it’s all Vietnamese Americans, or all Mormons? Would such a law be legal? What if it’s part of the state constitution? > > Have fun with the consequences. It’s not us deciding something about them; it’s us setting a precedent that may bite some of us. Martin Niemoeller had a point. I think you are blurring the concept of marriage. Sure marriage, in Loving, was held to be a fundamental right, but the definition of marriage was implicitly held to be that of two opposite sex people. You can’t redefine the word marriage, and then go back to when it had a different definition and quote a court decision to support the newly created definition. For example, let’s say that in 100 years, we decide that urinating on someone you don’t like is considered “free speech”. Fine and good, but you can’t go back to something that Jefferson or Madison said about “free speech” and make the claim that they supported urinating on people. I think we all should realize that the intent of any of the words in our constitution were simply not meant to apply to gay marriage. The best hope of pro-SSM supports is time. Let attitudes change. Trying to force change through court decisions will only make SSM bans enshrined in Constitutions across the country. I would bet that, if left alone, in 10 years, SSM would have gradually become legal without much of a fuss. Since you all pushed the issue, now states are making the bans concrete in their constitutions.. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [December 21, 2008, 5:09pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/51 "2008-12-21T17:09:42Z")
> [@matt\_mcl](#): > > Okay. And what you’re saying is that if there were, say, a ballot measure in Virginia (assuming Virginia has ballot measures) to withdraw that right, there could be no recourse to the 14th Amendment on the grounds that they were withdrawing rights and privileges from American citizens? Right, because you don’t have that right as an American citizen…just as a citizen of Virginia. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 21, 2008, 5:32pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/52 "2008-12-21T17:32:20Z")
Unless that right were also granted by the US Constitution, in which case there would be no controversy anyway unless Virginia started abridging that right. Since SSM has not been found to be protected by the US Constitution, there’s no Federal question here, which means only the SCOTOC can try this case. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [December 21, 2008, 8:46pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/53 "2008-12-21T20:46:46Z")
> [@jtgain](#): > > I would bet that, if left alone, in 10 years, SSM would have gradually become legal without much of a fuss. You mean like just sitting around and waiting ended segregation and Jim Crow and all the rest ? ---
**Author:** ![jaydotbeedot](https://avatars.discourse-cdn.com/v4/letter/j/54ee81/32.png) [@jaydotbeedot](https://boards.straightdope.com/u/jaydotbeedot)\ **Post date:** [December 21, 2008, 8:51pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/54 "2008-12-21T20:51:45Z")
I have no legal expertise, but here’s a ruling I would enjoy seeing: First, that the amendment does indeed require the court to invalidate the existing same-sex marriages. Second, because the first part is so extraordinary, the amendment should indeed have gone through the legislature and is therefore voided. In other words: If Prop 8 supporters hadn’t pushed for stripping couples of their existing marriages, it could have stood. But because they’re such a nasty bunch and just couldn’t leave well enough alone, they lose. No reason to believe that will happen. I just think it would be especially fitting. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [December 21, 2008, 9:43pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/55 "2008-12-21T21:43:00Z")
> [@matt\_mcl](#): > > Okay. And what you’re saying is that if there were, say, a ballot measure in Virginia (assuming Virginia has ballot measures) to withdraw that right, there could be no recourse to the 14th Amendment on the grounds that they were withdrawing rights and privileges from American citizens? > … Prop 8 doesn’t just take away the right of gay & lesbian Californians to marry in the future; it voids all existing same-sex marriages. Think of a ballot measure that not only revoked Virginians right to hunt, but penalized Virginians who hunted when it was legal (I know it’s not the best analogy since voiding a marriage isn’t a criminal penalty). The CA Supreme Court could rule that Prop 8 violates the federal constitution because it voids _existing marriages_ without ruling that it grants same-sex couples the right to marry. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 21, 2008, 10:39pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/56 "2008-12-21T22:39:05Z")
> [@alphaboi867](#): > > The CA Supreme Court could rule that Prop 8 violates the federal constitution because it voids _existing marriages_ without ruling that it grants same-sex couples the right to marry. I can readily imagine a ruling which invokes the phrase “the sanctity of marriage” to protect the marriages which have already occurred. That would be a nice up yours to the pro-8 lobby. I’m finding it difficult to imagine one which overturns Prop 8, though. ☹ ---
**Author:** ![Equipoise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/equipoise/32/151_2.png) [@Equipoise](https://boards.straightdope.com/u/Equipoise)\ **Post date:** [December 21, 2008, 10:43pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/57 "2008-12-21T22:43:10Z")
> [@jtgain](#): > > For example, let’s say that in 100 years, we decide that urinating on someone you don’t like is considered “free speech”. Fine and good, but you can’t go back to something that Jefferson or Madison said about “free speech” and make the claim that they supported urinating on people. What the fuck is it with you? First pedophilia, now “urinating on someone you don’t like”? Can’t you find examples that don’t conjure up repulsive images? > [@jtgain](#): > > I would bet that, if left alone, in 10 years, SSM would have gradually become legal without much of a fuss. Since you all pushed the issue, now states are making the bans concrete in their constitutions.. jtgain, meet Starving Artist. Starving Artist, meet jtgain. I’m sure you have a lot to talk about. ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [December 21, 2008, 11:17pm UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/58 "2008-12-21T23:17:36Z")
> [@ComeToTheDarkSideWeHaveCookies](#): > > [Link](http://www.cnn.com/2008/US/12/19/california.proposition/?iref=mpstoryview) I note that Ken Starr (yes, that guy) will be serving as lead counsel in the marriage-nullification effort. It is long past time for that guy to die in agony in a deep-fryer. Or not die. Whatever. ---
**Author:** ![Starving\_Artist](https://avatars.discourse-cdn.com/v4/letter/s/aeb1de/32.png) [@Starving\_Artist](https://boards.straightdope.com/u/Starving_Artist)\ **Post date:** [December 22, 2008, 12:58am UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/59 "2008-12-22T00:58:25Z")
> [@Equipoise](#): > > What the fuck is it with you? First pedophilia, now “urinating on someone you don’t like”? Can’t you find examples that don’t conjure up repulsive images? How’s about addressing his actual point, which is that subsequent judicial activism does not equate to original intent. > [@Equipoise](#): > > **jtgain** , meet **Starving Artist**. **Starving Artist** , meet **jtgain**. I’m sure you have a lot to talk about. [bolding mine] 😃 I would certainly agree that the liberal approach to social change is often tantamount to trying to straighten teeth with a hammer…and with similar results. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [December 22, 2008, 1:06am UTC](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025/60 "2008-12-22T01:06:51Z")
> [@alphaboi867](#): > > Prop 8 doesn’t just take away the right of gay & lesbian Californians to marry in the future; it voids all existing same-sex marriages. Well, no, not yet. That’s not clearly spelled out in the wording of the Proposition, and it’s precisely what the impending court battle is meant to determine. It is entirely possible that court battle could continue long enough for Proposition 8 to be reversed by another ballot measure. [Previous page](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025.md?page=2) [Next page](https://boards.straightdope.com/t/ca-supreme-court-asked-to-go-both-ways-on-prop-8/478025.md?page=4)