# 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:** 5
**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, 8:27pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/81 "2009-05-26T20:27:11Z")
> [@Arnold\_Winkelried](#): > > From a legal stanpdoint, the ruling is incorrect if you take the legal position that CA Proposition 8 violated the Equal Protection Clause (Section 1 of the 14th Amendment of the US Constitution). The Supreme Court of the United States has yet to assert that gender discrimination is protected under the 14th Amendment at a level that would require states to provide same-gender marriage. That argument goes no where, fast. ---
**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, 8:27pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/82 "2009-05-26T20:27:49Z")
> [@DSYoungEsq](#): > > 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. And that contradicts what I said how? ---
**Author:** ![Hirundo82](https://avatars.discourse-cdn.com/v4/letter/h/919ad9/32.png) [@Hirundo82](https://boards.straightdope.com/u/Hirundo82)\ **Post date:** [May 26, 2009, 8:28pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/83 "2009-05-26T20:28:42Z")
> [@Miller](#): > > 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. I don’t think another amendment invalidating the marriages before Prop. 8 would be valid under the California constitution (or Article I, Section 9 of the US Constitution, although I don’t think that particular section applies to the states): > [@](#): > > CALIFORNIA CONSTITUTION > ARTICLE 1 DECLARATION OF RIGHTS > SEC. 9. A bill of attainder, **ex post facto law** , or law impairing > the obligation of contracts may not be passed. ---
**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, 8:38pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/84 "2009-05-26T20:38:06Z")
> [@Arnold\_Winkelried](#): > > 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. But where do you divine that rule? What percentage must it be? ---
**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, 8:39pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/85 "2009-05-26T20:39:08Z")
> [@Hirundo82](#): > > I don’t think another amendment invalidating the marriages before Prop. 8 would be valid under the California constitution (or Article I, Section 9 of the US Constitution, although I don’t think that particular section applies to the states): No – the ex post facto provision applies to criminal cases only. It does not prevent the government from promulgating any law at all with a retroactive effect. ---
**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, 8:42pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/86 "2009-05-26T20:42:31Z")
> [@Captain\_Carrot](#): > > And that contradicts what I said how? You want courts to invalidate laws that you think are unjust, according to principles you hold important. For example, in this case, you want the Court to acknowledge that homosexual couples are getting the shaft in a very unprincipled way. But when you grant to a court the power to do that, you grant to it the power to do that in cases when the principles to be applied aren’t so near and dear to your heart. The _Lochner_ era cases were part of a general _laissez-faire_ attitude by the entrenched establishment (primarily Republican conservatives) that felt that any interference with the business of Business was bad for the country. So they saw to it that the Supreme Court was filled with justices who took the approach that any attempt to intefere with Business was a violation of a cherished concept: Liberty. Now, you look at those cases and you say, “But that wasn’t really Liberty at all! That was just rationalization to allow Business to go ahead and screw the individual.” And I won’t disagree with you. But just because you and I look at the Court’s application of “Liberty” and shudder doesn’t mean that they were being unprincipled bastards who were just out to rule arbitrarily. They were jurists who had a very different viewpoint on the meaning of a simple word: Liberty, as that word is used in the Constitution. They were very principled, and yet their decisions basically sucked rotten eggs, as far as a modern-day Liberal would be concerned. So do you **really** want judges taking the “will of the people” as expressed through legislation (or initiative) and using whatever particular version of principle they feel important at that moment to deny that expression? Me, I want some very tightly controlled reins around that, tyvm.:eek: ---
**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, 8:43pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/87 "2009-05-26T20:43:36Z")
> [@Polycarp](#): > > 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? Of course a state can. The only problem in doing that here was a tactical one. As long as the Cali Supremes were discussing only state law, their decision was unreviewable. But if they had said, “Yeah, Prop 8 is valid under California law, but we find it violates the US Constitution,” they would have dumped the law, but opened that decision to review by federal courts. And if that had happened, it might well have enshrined a precedent that would have applied throughout the 9th circuit, or throughout the land… a precedent that no one on the antiprop-8 side wanted to see. ---
**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, 8:50pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/88 "2009-05-26T20:50:25Z")
> [@DSYoungEsq](#): > > You want courts to invalidate laws that you think are unjust, according to principles you hold important. For example, in this case, you want the Court to acknowledge that homosexual couples are getting the shaft in a very unprincipled way. But when you grant to a court the power to do that, you grant to it the power to do that in cases when the principles to be applied aren’t so near and dear to your heart. The _Lochner_ era cases were part of a general _laissez-faire_ attitude by the entrenched establishment (primarily Republican conservatives) that felt that any interference with the business of Business was bad for the country. So they saw to it that the Supreme Court was filled with justices who took the approach that any attempt to interfere with Business was a violation of a cherished concept: Liberty. > > Now, you look at those cases and you say, “But that wasn’t really Liberty at all! That was just rationalization to allow Business to go ahead and screw the individual.” Actually, no, I don’t. > [@DSYoungEsq](#): > > So do you **really** want judges taking the “will of the people” as expressed through legislation (or initiative) and using whatever particular version of principle they feel important at that moment to deny that expression? Me, I want some very tightly controlled reins around that, tyvm.:eek: “Whatever particular version of principle at the moment”? I’m talking about fundamental rights here, not cafeteria Christianity. ---
**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, 9:02pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/89 "2009-05-26T21:02:23Z")
> [@Bricker](#): > > But where do you divine that rule? What percentage must it be? How about we model ourselves after the federal government: changes removing fundamental rights need approval by two-thirds majorities in both houses of the state legislature. Alternative: Right now, in California, a revision to the constitution would have needed to be voted on by the state legislature. How about we start with that. What do _you_ think is a good system, Bricker? Do you think that removing a fundamental right from the constitution should be allowed by a 50% majority vote of the electorate with no input from the legislature? ---
**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, 9:06pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/90 "2009-05-26T21:06:36Z")
> [@DSYoungEsq](#): > > The Supreme Court of the United States has yet to assert that gender discrimination is protected under the 14th Amendment at a level that would require states to provide same-gender marriage. As far as I know, they haven’t asserted the contrary, either. And they should decide that gender discrimination is protected under the 14th Amendment at such a level. And I am of the firm opinion that they eventually will. It’s not like the US is even leading the charge here. Contrary to the 18th and 19th centuries, the US is now trailing European countries when it comes to human rights, instead of leading. A sad state of affairs. ---
**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, 9:08pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/91 "2009-05-26T21:08:50Z")
> [@Captain\_Carrot](#): > > Actually, no, I don’t. > “Whatever particular version of principle at the moment”? I’m talking about fundamental rights here, not cafeteria Christianity. Check again. “Liberty” is a fundamental right. The Court in the _Lochner_ era was upholding the fundamental right of “liberty.” Wanna try again? 😉 ---
**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, 9:12pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/92 "2009-05-26T21:12:00Z")
> [@Arnold\_Winkelried](#): > > As far as I know, they haven’t asserted the contrary, either. And they should decide that gender discrimination is protected under the 14th Amendment at such a level. And I am of the firm opinion that they eventually will. It’s not like the US is even leading the charge here. Contrary to the 18th and 19th centuries, the US is now trailing European countries when it comes to human rights, instead of leading. A sad state of affairs. They have not directly done so, but unless and until the SCotUS protects either gender or sexual-choice as a specially protected class or through a fundamental right, then it’s going to be very hard to guarantee a win in a constitutional analysis where there is some balancing going on. I know this is not easy to accept, but just as the country is not as conservative as some people like to think, it’s also not as liberal as some people would like to believe. 😉 ---
**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, 9:12pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/93 "2009-05-26T21:12:41Z")
Question- what happens to the folks who are currently legally married? Can they get legally divorced? I assume yes, right? Hypothesize gay couple A- they were married in the window. They get divorced, and then reconcile. Now they’re legally barred from remarrying, even though they had previously been married, legally? Bizarre. ---
**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, 9:13pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/94 "2009-05-26T21:13:31Z")
> [@Arnold\_Winkelried](#): > > How about we model ourselves after the federal government: changes removing fundamental rights need approval by two-thirds majorities in both houses of the state legislature. > > Alternative: Right now, in California, a revision to the constitution would have needed to be voted on by the state legislature. How about we start with that. > > What do _you_ think is a good system, Bricker? Do you think that removing a fundamental right from the constitution should be allowed by a 50% majority vote of the electorate with no input from the legislature? The Court addressed your first point by saying it does not make sense to call the ADDITION of rights amendments while calling REMOVAL of rights revisions. Are you asking what a good system would be as a matter of good public policy or asking whether the Court should have created that “good system” in this judicial opinion? ---
**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, 9:13pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/95 "2009-05-26T21:13:54Z")
> [@DSYoungEsq](#): > > Check again. “Liberty” is a fundamental right. The Court in the _Lochner_ era was upholding the fundamental right of “liberty.” > > Wanna try again? 😉 Liberty is a vague concept, not a legal right. And in any case, I can approve of the process while sometimes not liking the outcome. ---
**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, 9:17pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/96 "2009-05-26T21:17:35Z")
> [@Bearflag70](#): > > The Court addressed your first point by saying it does not make sense to call the ADDITION of rights amendments while calling REMOVAL of rights revisions. And I don’t agree that it doesn’t make sense. It would make total sense to me that it should be easier to recognize that a fundamental right should be extended to a class of people, and harder to remove a fundamental right from a group of people. ---
**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, 9:58pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/97 "2009-05-26T21:58:40Z")
> [@Captain\_Carrot](#): > > Liberty is a vague concept, not a legal right. > [@United States Constitution](#): > > nor be deprived of life, liberty, or property, without due process of law Best you take that up with the Founding Fathers, who most certainly considered it a right, and didn’t think there was anything “vague” about it. 😉 > [@](#): > > And in any case, I can approve of the process while sometimes not liking the outcome. Well, yes, of course. But that’s the basic question at hand, isn’t it? Give the court the power to do something you really won’t like (they did it for almost a whole generation after _Lochner_!), or refuse to let the court have a power you think it needs (resulting in decisions that fail to advance the cause of justice). If it was easy, anyone could play. 😛 ---
**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, 10:20pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/98 "2009-05-26T22:20:18Z")
> [@Hirundo82](#): > > I don’t think another amendment invalidating the marriages before Prop. 8 would be valid under the California constitution (or Article I, Section 9 of the US Constitution, although I don’t think that particular section applies to the states): That’s not going to stop them from trying. ---
**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, 11:00pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/99 "2009-05-26T23:00:12Z")
> [@Arnold\_Winkelried](#): > > 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. No they are not. Not even 99.9994565% of the population of the world can make something right or wrong (morally) if it already isn’t. Slavery wasn’t JUST ever, it was legal. In this specific thread I’m trying to present the fact that when courts have made SSM legal none of the liberal guys here said anything against the fact that it was a court which decided. > [@blanx](#): > > Quoting notorious liberals like John Stuart Mill: > > Or flaming liberals like James Madison: Completely agreed. I’d loved to see those comments before the decision, it simply feels like anger disguised as legal or moral principles. ---
**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, 11:28pm UTC](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306/100 "2009-05-26T23:28:10Z")
> [@Aji\_de\_Gallina](#): > > In this specific thread I’m trying to present the fact that when courts have made SSM legal none of the liberal guys here said anything against the fact that it was a court which decided. In my case, I’m not complaining that judges made a decision, I’m complaining that judges made a wrong decision. [Previous page](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306.md?page=4) [Next page](https://boards.straightdope.com/t/california-supreme-court-ruling-on-proposition-8-ssm/497306.md?page=6)