Hopefully this puts to rest all of the “It’s already against the law, why do we need to put it in the constitution” arguments.
No. And this is in response to Bricker too. There is no explicit guarantee that specifically Libertarians are entitled to freedom of speecxh (textualism); it’s an inference from “Congress shall make no law” and the rights of U.S. citizens which a state may not trammell except in certain select ways. And originalism would note that the Constitution was passed over the essentially Libertarian viewpoint of the Anti-Federalists.
Yet, if we grant your point, that Libertarians zre contained within the larger group that re entitled to free speech, that leaves us with an issue.
I suspect that no Originalist would claim that the Congress could ban marriage altogether. And in response to the petition of Richard and Virginia Loving, SCOTUS has made it established law that marriage is a fundamental right. Notice that wording. I believe Chief Justice Warren knew what he was doing. He did not assert that there is a right to marry across racial lines, as would have been practical under the Fourteenth Amendment and judicial self-restraint. Rather he included a clear ruling on the nature of marriage, which sets precedent. For better or worse, until Loving is overturned, marriage is a right of the American citizen.
Now, look at the Equal Protection Clause. Can you make a case that the forbidding of same-sex marriages is closely related to a compelling government interest? Can you show it as being substantially related to an important government interest? Can you even defend it as being reasonably related to legitimate government interest? If not, then it is subsumed under the general heading of “marriage”, which as we have seen is guaranteed as a ight, by a decision binding unntil overturned by stare decisis.
And rights guaranteed by the Constitution need not wait for the legislature to act – it is the duty and privilege of the courts to say what the law of the land is, ruling in accord with the Supreme Law of the Land, viz., the Constitution.
Otherwise, whatever rights to free speech you may think you have, your sole recourse is to petition your representatives to pass a statute recognizing that supposed right, and keep quiet otherwise in the meantime.
And yes, I’m being a wize-ass. But I’m making the point that a guaranteed right need not and should not wait on the legislature. Otherwise, why have a guarantee of rights in theConstitution at all?
I’ve read this post six times, trying to figure out which side you’re advocating here, and I’m still not absolutely certain. It SOUNDS like you’re saying that you’re hopeful that the people who are arguing against a consitutional amendment ssm ban because ssm is already illegal will realize now that it’s actually needed. So, are you saying that an amendment to ban ssm is now needed? And if so, could you please justify that opinion?
I don’t think so.
While the California chapter of the Republican Party might try a few ads, I don’t think the state will vote McCain over Obama. (California’s electoral votes are “winner take all”. Obama will just need 50% +1 to get them all.)
Nationally, I think the voters in other states will see it as an internal California issue that doesn’t affect them.
IANAL, but the court did apply strict scrutiny. I am not clear from reading the opinion whether the court had previously applied strict scrutiny to sexuality issues or if this marks the first time.
Briefly, strict scrutiny involves “suspect classes,” which boiled down severely means that there is an “immutable characteristic” upon which discrimination is being predicated. For a state action to survive under strict scrutiny, there must be a “compelling” reason for the state to take the action and the action must be absolutely “necessary” to accomplish that goal.
Intermediate scrutiny means that there is an “important” state interest and the state action is “substantially related” to furthering that interest.
Rational review means that the state need only show that the state’s interest is “legitimate” and that the state act is a “rational” means of futhering that interest. The state’s action doesn’t have to be the only way or even the best way to further that interest, only a rational way.
ETA: I hope Del Martin and Phyllis Lyon are first in line at the marriage bureau.
It is the role of the courts to interpret and apply the state Constitution.
Further, Arnold’s veto of the SSM bill had no impact on SSM because a legislative bill cannot overturn an initiative (e.g., Prop. 22, which defined marriage as a man and a woman).
Arnold’s veto was “officially” based upon that reasoning. He basically said that either Prop. 22 is contitutional or unconstitutional, we do not know yet.
If Prop. 22 is constitutional, then the SSM bill from the legislature is unconstitutional because it would have the effect of overturning an initiative (Prop. 22).
If Prop. 22 is unconstitutional, then the SSM bill from the legislature is unnecessary because the courts will have guaranteed the right to SSM without the need for legislation.
Therefore, Arnold vetoed the SSM bill on the grounds that the bill was either unconstitutional or unnecessary.
I am concerned about the upcoming election impact, but not with respect to the Presidential race. This could impact some of the state district elections in California, such as:
STATE SENATE
SD19
STATE ASSEMBLY
AD10
AD15
AD26
AD37
AD78
AD80
U.S. CONGRESS
CD3
CD4
As I read his post, he’s saying what you surmise. People often argue against a state constitutional amendment by saying, “It’s already against the law; why do we also need a constitutional amendment?” This decision answers that: because a mere law can be overturn by judicial action; a constitutional amendment is not so vulnerable.
I am a bit torn about this. This needs to come from the people, not the courts.
But the only thing that can “come from the people” now is an amendment banning same-sex marriage, and that’s a huge step backwards.
Perhaps what needs to “come from the people” is a failed attempt at an amendment banning SSM, thus demonstrating that the populace favors this change.
I wasn’t thinking California. They’d vote for a yellow dog if he ran as a Dem for president. I just think this trips that anti-gay radar nationwide and might spur more anti-gay ballot initiatives which would play into McCain’s hands.
I’m not quite sure. Rove used the issue perfectly in 2004, but now most of the swing states have banned and rebanned ssm. Plus, Kerry was from Massachussetts. Obama isn’t from California.
The Christian right has lost a lot of steam since 2004. The death of Falwell, the humiliation of Ted Haggard, and the Terri Schiavo fiasco has taken a lot of their swagger away.
From the opinion:
The Government should get its hands out of marriage completely. Marriage in the eyes of the government should be merely a civil contract, a form of incorporation. Let any emotional content be handled in the social sphere.
What does it take to amend the state constitution? Simple majority vote on ballot initiative? The legislature would never vote for it.
I haven’t seen any recent poll numbers for CA, but I’d be surprised if an anti-SSM constitutional amendment would pass. I think it would be close, but that it would fail.
Yeah, that’s what we thought in Wisconsin too. Guess what got added to our constitution?
Never know. Got shot down by the voters in Arizona, and there’s people (on this board, even) who just love to talk about how bigotted Arizonans are. I guess we hate Mexicans and love gays.
But how do you feel about Mexican gays?
Plus, California is a solid blue state. I don’t see enough anti-ssm people getting motivated enough to go out and vote with McCain at the top of the ticket. They already know Obama will carry their state.
I’m not saying I think it would be a slam dunk. Yet. Certainly within 10 years it would be defeated easily, but I think it would still not pass today. At any rate, the court’s decision has made it a certainty that we will find out! It’s still a hot button issue, and isn’t going away without a fight.
Prop 22 passed with 60% of the vote, but that was such a long time ago in terms of how people’s attitudes have changed about gays since then. The Ellen DeGeneres kiss was still recent history.
Simple majority?! REALLY?! :mad:
A Living Document indeed.
Wiki says that the California Constitution had been modified over 500 times since it was first written.