# 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:** 4
**Author:** ![PharmBoy](https://avatars.discourse-cdn.com/v4/letter/p/74df32/32.png) [@PharmBoy](https://boards.straightdope.com/u/PharmBoy)\ **Post date:** [May 26, 2009, 7:45pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/61 "2009-05-26T19:45:11Z")
> [@Bricker](#): > > But what organization should have the power to overturn laws passed by the people by saying, “This law isn’t right?” > > The problem is that if we give courts the power to say that a law is validly passed, but simply isn’t right, we’ve created a sort of council of philosopher-kings, a group that hold the ultimate power of lawmaking. What happens when you disagree with them? What happens if they think abortion “just isn’t right?” On what leg do you stand then? You surely can’t say, “But a majority of people favor abortion rights!” You’ve already adopted the principle that the majority view must yield to the determination of what is “right.” > > It seems to me you favor overriding the people’s will on some things, but not others. In short, you want your views to prevail, regardless of whether the majority agrees. That’s not unreasonable for an advocate – of _course_ you think your positions are the correct ones – but surely you see it’s untenable as a method of government. This is exactly right, in my view. Just for the record, no one’s “rights” are abolished. No one is saying that gays can’t marry, but if you want to marry someone, then you have to marry someone of the opposite sex. It’s like me demanding the “right” to drive 200 miles an hour, and then complaining when the stae says no. I have the right to petition for a driver’s license, but I have to follow the rules. The comparison with the struggle of blacks in this country is also all wet, and is offensive to many African Americans who clearly see the difference between being DENIED something versus having to follow some rules. BTW, flame all you want, I’ve really stopped reading this Board as it has become dominated by liberal America-bashers who tolerate no dissent from their views while preaching “tolerance”. Bite me ---
**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, 7:47pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/62 "2009-05-26T19:47:22Z")
> [@Aji\_de\_Gallina](#): > > It’s nice to hear liberals saying “screw what the people say, screw what the courts say, we’re right PERIOD!” So right and wrong are determined by a 52% majority vote or a group of judges? I love moral relativism! Slavery in the US was JUST until 1865 when all of a sudden it became UNJUST. Banning interracial marriage in the US was JUST until 1967 when all of a sudden it became UNJUST! Please stay tuned for further cases when a judge might make a contrary decision and change your whole concept of RIGHT vs. WRONG. ---
**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, 7:48pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/63 "2009-05-26T19:48:33Z")
> [@DiosaBellissima](#): > > Read for comprehension, what you’re implying isn’t what they are saying. My comprehension’s fine, thanks for asking, I’ll tell him you said hi. Sorry, the pro-SSM people first wanted a NO on 8 and they failed so they went to the court and failed again and now are complaining that neither the court nor the voters whould’ve been able to decide on it form the get go. ---
**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, 7:51pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/64 "2009-05-26T19:51:18Z")
> [@Bricker](#): > > 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. And sometimes a dramatic change is what’s needed. For what it’s worth, I skimmed through the decision looking at their examples, and the only one that seemed to me to be a alid comparison was the discussion of a constitutional amendment on the Death Penalty, which would affect a fundamental right, the right to life. If any constitutational change affects a fundamental right, then the change needs more than a 50% vote. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 26, 2009, 7:51pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/65 "2009-05-26T19:51:18Z")
> [@Bricker](#): > > But what organization should have the power to overturn laws passed by the people by saying, “This law isn’t right?” > > The problem is that if we give courts the power to say that a law is validly passed, but simply isn’t right, we’ve created a sort of council of philosopher-kings, a group that hold the ultimate power of lawmaking. What happens when you disagree with them? What happens if they think abortion “just isn’t right?” On what leg do you stand then? You surely can’t say, “But a majority of people favor abortion rights!” You’ve already adopted the principle that the majority view must yield to the determination of what is “right.” > > It seems to me you favor overriding the people’s will on some things, but not others. In short, you want your views to prevail, regardless of whether the majority agrees. That’s not unreasonable for an advocate – of _course_ you think your positions are the correct ones – but surely you see it’s untenable as a method of government. Gee, if we only had some overarching meta-law that guaranteed people’s rights so that a legislature or a referendum/initiative couldn’t take them away! – only by the difficult process of amending the overarching meta-law itself could tjat be done. It’s too bad the Founding Fathers never came up with an idea like that, isn’t it? ---
**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:** [May 26, 2009, 7:52pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/66 "2009-05-26T19:52:20Z")
> [@EJsGirl](#): > > This whole thing makes me crazy. “The will of the people? The people have spoken?” God damn it, segregation was the will of the people, as was the lack of rights for women. Doesn’t make it right. And as soon as enough people decided that those things should be changed, they were changed. “The rights of minorities shouldn’t be decided by a vote,” has a nice ring to it, but practically speaking, it’s pretty much unworkable in a democracy. And, honestly, that’s probably for the best. Consider, for example, that an aristocracy is also a minority, and that our country was founded on the idea that the majority should, indeed, have a vote on exactly what rights they were and were not allowed. Anyway, my take away from this decision is the good news that existing marriages were allowed to stand. I didn’t think the overall challenge had a chance, but I was worried about that part. Of course, I’m sure the bastards behind Prop. 8 are already ginning up something for 2010 to take care of that. I don’t think they’ll have a chance, though. 2008 was their last gasp at glory. From here on out, it’s all down hill for them. ---
**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, 7:54pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/67 "2009-05-26T19:54:55Z")
> [@Gorsnak](#): > > 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. What I want is for judges to make a decision based on the merits of a case and a good interpretation of the law, not for decisions to be made based on legal tactics and what might happen in court Z if we make the right decision in court X. Maybe this decision will mean that gay marriage will be easier to obtain in the future. But what it also means is that you only need 50% of the CA votes to remove a fundamental right from a class of people. That is a bad decision. ---
**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, 7:56pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/68 "2009-05-26T19:56:43Z")
I have a question for those in favor of SSM who have a problem with both Prop 8 and this ruling. Who, or what, _should_ decide these things? I understand that you feel it is a basic right and shouldn’t be subject to the whim of the populace, but who or what group do you want to make that determination? Surely you can see that whatever solution you come up with, it would also have to work for other things down the road. So is there some super-duper ethics panel? If so, who chooses its members? Is there something else? I’m not understanding what _process_ would satisfy you. Any suggestions? ---
**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, 8:01pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/69 "2009-05-26T20:01:12Z")
> [@magellan01](#): > > I have a question for those in favor of SSM who have a problem with both Prop 8 and this ruling. Who, or what, _should_ decide these things? I understand that you feel it is a basic right and shouldn’t be subject to the whim of the populace, but who or what group do you want to make that determination? Surely you can see that whatever solution you come up with, it would also have to work for other things down the road. So is there some super-duper ethics panel? If so, who chooses its members? Is there something else? > > I’m not understanding what _process_ would satisfy you. Any suggestions? Maybe I missed it- and I’m genuinely not being sarcastic here- but who in this thread that is for SSM has expressed an issue with this ruling? I’m seeing lots of logical folks pointing out that legally, this was the correct ruling (the law was instated legally), but those same are expressing general feelings of shame over their state’s original passage of Prop 8, no? ---
**Author:** ![Stealth\_Potato](https://avatars.discourse-cdn.com/v4/letter/s/d78d45/32.png) [@Stealth\_Potato](https://boards.straightdope.com/u/Stealth_Potato)\ **Post date:** [May 26, 2009, 8:01pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/70 "2009-05-26T20:01:49Z")
> [@magellan01](#): > > I have a question for those in favor of SSM who have a problem with both Prop 8 and this ruling. Who, or what, _should_ decide these things? I understand that you feel it is a basic right and shouldn’t be subject to the whim of the populace, but who or what group do you want to make that determination? Surely you can see that whatever solution you come up with, it would also have to work for other things down the road. So is there some super-duper ethics panel? If so, who chooses its members? Is there something else? > > I’m not understanding what _process_ would satisfy you. Any suggestions? Well, suppose that (somehow) a majority of California voters approved another proposition amending the California constitution to define marriage as being strictly between two people of the same race. Would you have a problem with the courts striking that down? ---
**Author:** ![blanx](https://avatars.discourse-cdn.com/v4/letter/b/f04885/32.png) [@blanx](https://boards.straightdope.com/u/blanx)\ **Post date:** [May 26, 2009, 8:02pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/71 "2009-05-26T20:02:59Z")
> [@Aji\_de\_Gallina](#): > > Yeah, this is a nice thread.🙂 Quoting notorious liberals like John Stuart Mill: [QUOTE=John Stuart Mill] Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant — society collectively over the separate individuals who compose it — its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. \*\*Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. \*\*There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism. — On Liberty, The Library of Liberal Arts edition, p.7. [/QUOTE] Or flaming liberals like James Madison: [QUOTE=Madison] “A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.” --Federalist 10 [/QUOTE] ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 26, 2009, 8:04pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/72 "2009-05-26T20:04:13Z")
> [@Bricker](#): > > Why do you suppose the challengers failed to make that argument? Perhaps because they were appealing to a state’s high court, in reference to a state matter? Can a state court even rule on a federal question absent a tie to a state question? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 26, 2009, 8:12pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/73 "2009-05-26T20:12:19Z")
> [@AK84](#): > > From a purely legal standpoint; the decision was dead right. The way to effect change is at the ballot box; not in the courts. You have no right to say that! :mad: 😉 ---
**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, 8:15pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/74 "2009-05-26T20:15:05Z")
> [@magellan01](#): > > I have a question for those in favor of SSM who have a problem with both Prop 8 and this ruling. Who, or what, _should_ decide these things? I understand that you feel it is a basic right and shouldn’t be subject to the whim of the populace, but who or what group do you want to make that determination? Surely you can see that whatever solution you come up with, it would also have to work for other things down the road. So is there some super-duper ethics panel? If so, who chooses its members? Is there something else? > > I’m not understanding what _process_ would satisfy you. Any suggestions? To take another famous California example: OJ Simpson was found not guilty beyond a reasonable doubt when he was tried for the murder of his wife. I think that the jury might have made a mistake in his case. Does this mean that I want to scrap trial by jury? No, but it means that I admit that sometimes juries can make mistakes. My problem with Proposition 8: it removes a fundamental right from a group of people for no good reason at all. My problem with the CA initiative process: you can remove a fundamental right from the constitution with a 50% vote. My problem with today’s decision: that the CA supreme court should have put its foot down and specified that removing a fundamental right is a Constitutional revision, not a simple amendment. I am OK with the Supreme Court making final decisions. But I also realize that sometimes they will make the wrong decisions, and hope that this will be corrected over time. I am OK with the people or the legislature changing the CA constitution. But the process we have right now in California is flawed and needs to be fixed. ---
**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, 8:17pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/75 "2009-05-26T20:17:35Z")
> [@PharmBoy](#): > > Just for the record, no one’s “rights” are abolished. No one is saying that gays can’t marry, but if you want to marry someone, then you have to marry someone of the opposite sex. Do laws banning interracial marriages violate anyone’s rights? ---
**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, 8:17pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/76 "2009-05-26T20:17:39Z")
> [@DiosaBellissima](#): > > Maybe I missed it- and I’m genuinely not being sarcastic here- but who in this thread that is for SSM has expressed an issue with this ruling? I’m seeing lots of logical folks pointing out that legally, this was the correct ruling (the law was instated legally), but those same are expressing general feelings of shame over their state’s original passage of Prop 8, no? My question was more general, as I agree with your characterization of most of the posters in this thread. ---
**Author:** ![blanx](https://avatars.discourse-cdn.com/v4/letter/b/f04885/32.png) [@blanx](https://boards.straightdope.com/u/blanx)\ **Post date:** [May 26, 2009, 8:18pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/77 "2009-05-26T20:18:54Z")
> [@magellan01](#): > > I have a question for those in favor of SSM who have a problem with both Prop 8 and this ruling. Who, or what, _should_ decide these things? I understand that you feel it is a basic right and shouldn’t be subject to the whim of the populace, but who or what group do you want to make that determination? Surely you can see that whatever solution you come up with, it would also have to work for other things down the road. So is there some super-duper ethics panel? If so, who chooses its members? Is there something else? > > I’m not understanding what _process_ would satisfy you. Any suggestions? Remember, I don’t like the ruling, but think it’s probably the right one given the procedural issues, so maybe I’m not the one to ask, but I’ll take a stab. Ideally, I’d like the US Supreme Court to step in and invalidate DOMA, and these types of state amendments to state constitutions pursuant to the 14th Amendment. ---
**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, 8:19pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/78 "2009-05-26T20:19:46Z")
> [@Arnold\_Winkelried](#): > > What I want is for judges to make a decision based on the merits of a case and a good interpretation of the law, \ > > you only need 50% of the CA votes to remove a fundamental right from a class of people. That is a bad decision. That’s bad public policy but not necessarily a bad judicial decision. The Court should make its decision based upon the law, not on the result the Court wants to achieve. The fact that California permits the electorate to remove fundamental Constitutional rights by simple majority initiative is a problem created by Hiram Johnson and the reformers of the early 20th Century who wrote that possibility into the law. The proper solution is initiative reform or an opinion deeming Prop. 8 a violation of the federal constitution. As the Court noted, many states with an initiative process have stronger restrictions on what the public can and cannot do to the state Constitution via initiative. California has no similar restrictions, and the Court had nothing to hang its hat on to suggest the people cannot make this kind of Constitutional change via simple majority initiative. ---
**Author:** ![blanx](https://avatars.discourse-cdn.com/v4/letter/b/f04885/32.png) [@blanx](https://boards.straightdope.com/u/blanx)\ **Post date:** [May 26, 2009, 8:21pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/79 "2009-05-26T20:21:34Z")
> [@magellan01](#): > > My question was more general, as I agree with your characterization of most of the posters in this thread. The real problem here is with California’s procedure to amend its constitution. There’re several really good reasons why the US Constitution is so bleeding hard to amend. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 26, 2009, 8:24pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/80 "2009-05-26T20:24:50Z")
> [@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. You, my sir, need to read a good summary of the Supreme Court of the United States under the “substantive due process” era (_Lochner_ the seminal case). During this time, the Supreme Court decided that most attempts by the progressive legislatures of various states and the federal government to initiate protective laws for things like working hours, safety conditions, etc., were a violation of the freedom of parties to contract as they desired. It thus struck such laws down. This continued until Franklin Roosevelt threatened to have Congress pack the Court with additional members sufficient to overcome the resistance of the Court to such laws, at which time the Court yielded, eschewed the “substantive due process” method of review, and allowed government to get along with the business of modernizing food safety, worker safety, etc. laws. Sauce for the goose, sir, sauce for the goose. [Previous page](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306.md?page=3) [Next page](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306.md?page=5)