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.
And that contradicts what I said how?
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):
But where do you divine that rule? What percentage must it be?
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.
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:
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.
Actually, no, I don’t.
“Whatever particular version of principle at the moment”? I’m talking about fundamental rights here, not cafeteria Christianity.
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?
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.
Check again. “Liberty” is a fundamental right. The Court in the Lochner era was upholding the fundamental right of “liberty.”
Wanna try again? 
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.
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.
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?
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.
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.
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.
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. 
That’s not going to stop them from trying.
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.
Completely agreed. I’d loved to see those comments before the decision, it simply feels like anger disguised as legal or moral principles.
In my case, I’m not complaining that judges made a decision, I’m complaining that judges made a wrong decision.