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.
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.
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?
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.
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.)
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.
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.
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…
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.
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.
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.
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.
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, meet Starving Artist. Starving Artist, meet jtgain. I’m sure you have a lot to talk about.
How’s about addressing his actual point, which is that subsequent judicial activism does not equate to original intent.
[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.
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.
