# California Supreme Court Ruling on Proposition 8 (SSM) **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [May 22, 2009, 4:29pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306 "2009-05-22T16:29:19Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [May 26, 2009, 6:59pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/41 "2009-05-26T18:59:08Z")
> [@Bricker](#): > > Why do you suppose the challengers failed to make that argument? I don’t know. I’m sure you know but are keeping your information closely clasped to your bosom so that you can lead me into a trap. I await with baited breath! I assume the challengers failed to make that argument because they thought that it would have a poor chance of it succeeding. An argument has to be not only just, but have a chance of prevailing in the current political climate. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 26, 2009, 6:59pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/42 "2009-05-26T18:59:18Z")
> [@Captain\_Carrot](#): > > Majority rule doesn’t apply to denying people rights. > [@Captain\_Carrot](#): > > The courts. Of course, they need actual legal justification, but they’re usually pretty good about that. The job of the judiciary is not to interpret the letter of the exact law before them like robots. Here, the people removed their legal justification; the courts ruled that California’s Constitution required same-sex marriage and the people responded by making it explicitly say that it doesn’t. If you contend that in the face of that move, the courts should still have the power to say otherwise, then you’ve passed “legal justification” and moved into overt rule by the judiciary. ---
**Author:** ![DiosaBellissima](https://avatars.discourse-cdn.com/v4/letter/d/a8b319/32.png) [@DiosaBellissima](https://boards.straightdope.com/u/DiosaBellissima)\ **Post date:** [May 26, 2009, 7:00pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/43 "2009-05-26T19:00:13Z")
> [@Gorsnak](#): > > Except that the challenge wasn’t based on the federal Equal Protection Clause, but rather on procedural issues regarding how the state Constitution can be amended/revised by plebiscite. But because it was mentioned in the decision (“…does not violate the separation of powers doctrine, and is not invalid under the “inalienable rights” theory proffered by the Attorney General.”) does that give any legal footing to a federal appeal? Or no? Was it just part of the opinion with no weight? ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [May 26, 2009, 7:00pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/44 "2009-05-26T19:00:43Z")
> [@Bricker](#): > > Why do you suppose the challengers failed to make that argument? Because they’re idiots. The entire campaign against Proposition 8 has been run by fools. They were incompetent before the election and they’re incompetent now. ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [May 26, 2009, 7:01pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/45 "2009-05-26T19:01:10Z")
> [@Gorsnak](#): > > Except that the challenge wasn’t based on the federal Equal Protection Clause, but rather on procedural issues regarding how the state Constitution can be amended/revised by plebiscite. And the judges could have decided that amending the constitution in a way that raises important Equal Protection issues is a major revision of the CA State constitution (ETA and must therefore go through the legislature first.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 26, 2009, 7:02pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/46 "2009-05-26T19:02:08Z")
> [@Arnold\_Winkelried](#): > > I don’t know. I’m sure you know but are keeping your information closely clasped to your bosom so that you can lead me into a trap. I await with baited breath! Unless your breath smells like minnows or fishing lure, I assume you mean _'bated_. 😃 > [@](#): > > I assume the challengers failed to make that argument because they thought that it would have a poor chance of it succeeding. An argument has to be not only just, but have a chance of prevailing in the current political climate. Yes – no one on that side wanted to make the federal challenge because, unlike a purely state law claim, if the California Supremes said that the federal constitution guaranteed same-sex marriage, that could be appealed to the federal court system, and it seems prudent to not do that now. ---
**Author:** ![Bearflag70](https://avatars.discourse-cdn.com/v4/letter/b/8e7dd6/32.png) [@Bearflag70](https://boards.straightdope.com/u/Bearflag70)\ **Post date:** [May 26, 2009, 7:03pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/47 "2009-05-26T19:03:25Z")
I’ve heard it said that the pro-SSM crowd would want to avoid a new SSM initiative in 2012 because Obama’s reelection bid would turn out much of the anti-SSM Latino vote that contributed to the passage of Prop. 8 in the first place. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 26, 2009, 7:03pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/48 "2009-05-26T19:03:28Z")
> [@Captain\_Carrot](#): > > Because they’re idiots. The entire campaign against Proposition 8 has been run by fools. They were incompetent before the election and they’re incompetent now. Well, maybe they are and maybe they’re not, but I assure you that this particular decision is tactically sound. They do NOT want to punt this debate into the federal courts at the present time. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 26, 2009, 7:04pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/49 "2009-05-26T19:04:30Z")
> [@Arnold\_Winkelried](#): > > And the judges could have decided that amending the constitution in a way that raises important Equal Protection issues is a major revision of the CA State constitution (ETA and must therefore go through the legislature first.) Well, I suppose they could have, but that would have been a dramatic change from all the previous case law dealing with amendments vs. revisions. From the opinion: > [@](#): > > Petitioners contend, however, that even if Proposition 8 does not affect the governmental plan or framework established by the state Constitution, the measure nonetheless should be considered to be a revision because it conflicts with an assertedly fundamental constitutional principle that protects a minority group from having its constitutional rights diminished in any respect by majority vote. Petitioners, however, cannot point to any authority supporting their claim that under the California Constitution, a constitutional amendment — proposed and > 9 > adopted by a majority of voters through the initiative process — cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision. As we shall see, there have been many amendments to the California Constitution, adopted by the people through the initiative process in response to court decisions interpreting various provisions of the California Constitution, that have had just such an effect. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [May 26, 2009, 7:08pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/50 "2009-05-26T19:08:50Z")
> [@Arnold\_Winkelried](#): > > And the judges could have decided that amending the constitution in a way that raises important Equal Protection issues is a major revision of the CA State constitution (ETA and must therefore go through the legislature first.) Perhaps. I know absolutely nothing about the procedures for modifying the California Constitution. But I do know that you really, really don’t want to win this at the state level via a ruling that the federal Constitution guarantees a right to SSM, which is what I took you to be suggesting. Because a decision like that would be almost guaranteed to be overturned by SCOTUS, and that would be a very significant setback in the fight for equal rights. Which sucks, but there it is. ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [May 26, 2009, 7:10pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/51 "2009-05-26T19:10:56Z")
> [@Bricker](#): > > Yes – no one on that side wanted to make the federal challenge because, unlike a purely state law claim, if the California Supremes said that the federal constitution guaranteed same-sex marriage, that could be appealed to the federal court system, and it seems prudent to not do that now. I’m sure that 20 or 50 years before the decision in Virginia v. Loving, someone might have made the same calculations regarding lawsuits to stop the banning of interracial marriages. Does that mean that the Virgina v. Loving decision was wrong? It was correct in 1967 but would have been incorrect in 1937? Did the words of the 14th amendment magically change their meaning? I would say no. A Supreme Court in 1937 might have decided the contrary, and if they would have upheld a ban on interracial marriages, it would have been because they were blinded by their prejudices. ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [May 26, 2009, 7:25pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/52 "2009-05-26T19:25:12Z")
For the record, it appears that the court has only forbidden the [word, not the practice](http://www.dailykos.com/story/2009/5/26/735571/-Read-page-36.-They-just-cut-Prop-8-to-the-bone.). Two dudes can get married, but the state can’t call them married. ---
**Author:** ![Aji\_de\_Gallina](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aji_de_gallina/32/260_2.png) [@Aji\_de\_Gallina](https://boards.straightdope.com/u/Aji_de_Gallina)\ **Post date:** [May 26, 2009, 7:28pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/53 "2009-05-26T19:28:08Z")
It’s nice to hear liberals saying “screw what the people say, screw what the courts say, we’re right PERIOD!” ---
**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:** [May 26, 2009, 7:32pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/54 "2009-05-26T19:32:14Z")
> [@Gorsnak](#): > > Good luck down there. I’d invite you to come up here to get married, but I doubt there’s a Californian alive who would brave a Saskatchewan winter even for true love. 😛 “Not love, quoth he, But crazitee, Sets love a task like that!” :eek: ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [May 26, 2009, 7:36pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/55 "2009-05-26T19:36:24Z")
> [@Aji\_de\_Gallina](#): > > It’s nice to hear liberals saying “screw what the people say, screw what the courts say, we’re right PERIOD!” It’s nice to hear conservatives lie about what liberals say. It’s also refreshing to hear conservatives not decry the “liberal activist judges disregarding the Constitution”. ---
**Author:** ![Aji\_de\_Gallina](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aji_de_gallina/32/260_2.png) [@Aji\_de\_Gallina](https://boards.straightdope.com/u/Aji_de_Gallina)\ **Post date:** [May 26, 2009, 7:39pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/56 "2009-05-26T19:39:59Z")
> [@Jodi](#): > > Agreed. The will of the People of the State of California was upheld. The tragedy isn’t the upholding, but that this was their will in the first place. > [@blanx](#): > > Agreed. Even though I think the outcome is asinine, based strictly upon the procedural history, this was the “correct” outcome. > > This is also why civil rights should not be subject to a vote. Stupid tyranny of the majority. > [@Captain\_Carrot](#): > > It’s nice to hear conservatives lie about what liberals say. It’s also refreshing to hear conservatives not decry the “liberal activist judges disregarding the Constitution”. Yeah, this is a nice thread.🙂 ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [May 26, 2009, 7:41pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/57 "2009-05-26T19:41:51Z")
> [@Captain\_Carrot](#): > > It’s nice to hear conservatives lie about what liberals say. It’s also refreshing to hear conservatives not decry the “liberal activist judges disregarding the Constitution”. There was no lie in that statement. It was an accurate characterization of the attitude of some on the pro SSM side. Yours, for example. ---
**Author:** ![Bearflag70](https://avatars.discourse-cdn.com/v4/letter/b/8e7dd6/32.png) [@Bearflag70](https://boards.straightdope.com/u/Bearflag70)\ **Post date:** [May 26, 2009, 7:42pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/58 "2009-05-26T19:42:13Z")
> [@Captain\_Carrot](#): > > For the record, it appears that the court has only forbidden the [word, not the practice](http://www.dailykos.com/story/2009/5/26/735571/-Read-page-36.-They-just-cut-Prop-8-to-the-bone.). Two dudes can get married, but the state can’t call them married. That’s what I was just thinking about. From the opinion… > [@](#): > > … > Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship. > > … > by incorporating into the California Constitution a specific provision that expressly restricts the designation of “marriage” to the union of a man and a woman, Proposition 8 must be understood as creating a limited exception to the state equal protection clause > > … > Proposition 8 simply changes the substantive content of a state constitutional rule in one specific subject area — the rule relating to access to the designation of “marriage.” > > … > A narrowly drawn exception to a generally applicable constitutional principle does not amount to a constitutional revision within the meaning of article XVIII of the California Constitution. In other words, the Court seems to say that same sex couples have identical substantive espousal rights as opposite sex couples, except same sex couples cannot use the term “marriage” as an official designation of a same sex union. The Court seems to have virtually gutted Prop. 8 by reducing it to an amendment about which label the state can hang on a civil union. ---
**Author:** ![DiosaBellissima](https://avatars.discourse-cdn.com/v4/letter/d/a8b319/32.png) [@DiosaBellissima](https://boards.straightdope.com/u/DiosaBellissima)\ **Post date:** [May 26, 2009, 7:42pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/59 "2009-05-26T19:42:23Z")
> [@Aji\_de\_Gallina](#): > > Yeah, this is a nice thread.🙂 Read for comprehension, what you’re implying isn’t what they are saying. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 26, 2009, 7:44pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/60 "2009-05-26T19:44:09Z")
From a purely legal standpoint; the decision was dead right. The way to effect change is at the ballot box; not in the courts. [Previous page](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306.md?page=2) [Next page](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306.md?page=4)