# Did the Cali SC Really Just Take the Teeth Out of Prop 8? **URL:** \ **Category:** Great Debates\ **Created:** [May 26, 2009, 7:57pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725 "2009-05-26T19:57:19Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Projammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/projammer/32/559_2.png) [@Projammer](https://boards.straightdope.com/u/Projammer)\ **Post date:** [May 27, 2009, 3:49am UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/41 "2009-05-27T03:49:32Z")
> [@Whack-a-Mole](#): > > In the end that is their purpose…to interpret the law. As the highest court in California that’s that barring an appeal to the SCOTUS. This is what I came in to ask about. Since this involves the CA constitution, does the CA Supreme Court have the final say? Or is someone going to ratchet this all the way up the ladder? ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [May 27, 2009, 4:03am UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/42 "2009-05-27T04:03:44Z")
> [@Projammer](#): > > Or is someone going to ratchet this all the way up the ladder? I’m guessing that’s the plan. As I mentioned, I think that there is a move in Washington State to confer upon gay people in civil unions the same rights that are enjoyed by married couples. (Again, I haven’t been following the issue here.) Opponents who have objected to the term ‘marriage’ are now saying that you gay people can’t have ‘marriage’ even if it isn’t called ‘marriage’. The way I see it, they’ll either have to come out and declare gays to be second-class citizens, or allow ‘separate but equal’ civil unions. But that will bring us in the neighbourhood of _Brown v. The Board of Education_, which determined that ‘separate but equal’ is unconstitutional. How can ‘separate but equal’ be unconstitutional for one class of citizens and not unconstitutional for another class of citizens? As soon as ‘separate but equal’ civil unions are made legal, the next step is SCOTUS. ---
**Author:** ![amarinth](https://avatars.discourse-cdn.com/v4/letter/a/3be4f8/32.png) [@amarinth](https://boards.straightdope.com/u/amarinth)\ **Post date:** [May 27, 2009, 7:05am UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/43 "2009-05-27T07:05:05Z")
> [@Johnny\_L.A](#): > > I’m guessing that’s the plan. As I mentioned, I think that there is a move in Washington State to confer upon gay people in civil unions the same rights that are enjoyed by married couples. (Again, I haven’t been following the issue here.) You’re probably referring to [“everything but marriage”](http://seattletimes.nwsource.com/html/localnews/2009233610_webdomestic18.html) bill that was signed last week. It was actually the third bill, each of which slowly extended the rights of domestic partnerships. It is not unlikely that there will be a referendum on the ballot this November. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [May 27, 2009, 11:06am UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/44 "2009-05-27T11:06:23Z")
> [@jtgain](#): > > Couldn’t someone have argued after the passage of the 13th amendment, that “Oh sure, from this day forward, no more enslaving of new people, but those already enslaved can continue being slaves” Many people did argue that **before** that Amendment – it was one of the compromise positions floated in the 1850’s to try to avoid the Civil War. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 27, 2009, 1:23pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/45 "2009-05-27T13:23:49Z")
Just for the record, we have “Domestic Partnerships” in CA, not civil unions. I don’t know what the essential difference is, but here’s the article in wikipedia comparing them to marriage. [Link.](http://en.wikipedia.org/wiki/Domestic_partnership_in_California#Differences_from_Marriage) And, please, no more “Cali”. That’s on par with “Frisco”. 😉 ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [May 27, 2009, 1:37pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/46 "2009-05-27T13:37:16Z")
> [@Alan\_Smithee](#): > > Mind you, “gmarriage” is even better. I concur, after all, if anyone can make marriage really work, it’s Google. ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [May 27, 2009, 1:38pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/47 "2009-05-27T13:38:48Z")
> [@amarinth](#): > > You’re probably referring to [“everything but marriage”](http://seattletimes.nwsource.com/html/localnews/2009233610_webdomestic18.html) bill that was signed last week. Thank you! I did a cursory search before I posted, but didn’t find it. > [@John\_Mace](#): > > And, please, no more “Cali”. That’s on par with “Frisco”. 😉 Seconded. I was born and raised in SoCal, and never heard anyone say ‘Cali’ until I moved to Washington. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 27, 2009, 1:43pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/48 "2009-05-27T13:43:28Z")
> [@Johnny\_L.A](#): > > But that will bring us in the neighbourhood of _Brown v. The Board of Education_, which determined that ‘separate but equal’ is unconstitutional. How can ‘separate but equal’ be unconstitutional for one class of citizens and not unconstitutional for another class of citizens? > > As soon as ‘separate but equal’ civil unions are made legal, the next step is SCOTUS. The thing is, separate but equal isn’t banned _per se_. _Brown_ was, as you know, based on race. Race gets strict scrutiny for EP analysis (as does national origin and fundamental rights); sex based discrimination gets intermediate level scrutiny, and everything else gets rational basis review. Even under intermediate scrutiny, separate but equal can survive - on a crass level look at separate rest rooms for men and women. Sexual Orientation hasn’t officially got anything above rational basis review (though I challenge anyone to argue that _Romer_ didn’t go beyond rational basis review in its analysis). What it seems to have is rational basis with teeth. Unfortunately, given the current make up of the court, I don’t see an equal protection claim regarding marriage working. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 27, 2009, 2:15pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/49 "2009-05-27T14:15:48Z")
> [@Johnny\_L.A](#): > > Seconded. I was born and raised in SoCal, and never heard anyone say ‘Cali’ until I moved to Washington. So “SoCal” is ok but “Cali” isn’t? For my part writing “Cali” here is just laziness to avoid writing out California which, in a thread on the Supreme Court of California about an amendment to the California constitution and regarding California law, gets typed an awful lot. ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [May 27, 2009, 2:17pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/50 "2009-05-27T14:17:48Z")
> [@Whack-a-Mole](#): > > So “SoCal” is ok but “Cali” isn’t? Yes. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 27, 2009, 2:29pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/51 "2009-05-27T14:29:17Z")
> [@Whack-a-Mole](#): > > So “SoCal” is ok but “Cali” isn’t? As is NorCal, although you see it written more than hear it spoken. > [@](#): > > For my part writing “Cali” here is just laziness to avoid writing out California which, in a thread on the Supreme Court of California about an amendment to the California constitution and regarding California law, gets typed an awful lot. I didn’t mean to make a big deal about it, hence the wink. I tend to just write CA, or Cal is OK, too, as long as you don’t get it confused with UC Berkeley… 😉 ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [May 27, 2009, 2:41pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/52 "2009-05-27T14:41:06Z")
> [@villa](#): > > The thing is, separate but equal isn’t banned _per se_. _Brown_ was, as you know, based on race. Race gets strict scrutiny for EP analysis (as does national origin and fundamental rights); sex based discrimination gets intermediate level scrutiny, and everything else gets rational basis review. Even under intermediate scrutiny, separate but equal can survive - on a crass level look at separate rest rooms for men and women. Sexual Orientation hasn’t officially got anything above rational basis review (though I challenge anyone to argue that _Romer_ didn’t go beyond rational basis review in its analysis). What it seems to have is rational basis with teeth. As a non-legal type, your points are hard for me to deny. I think that gay people are naturally gay, as opposed to their orientation being a learned thing. As such, they have no option to not be gay any more than a person of a given ethnic group can choose not to be part of that ethnic group. Therefore, they must have the full protection of the law. But you bring up separate toilets. A man or woman has little choice about his or her gender. But in the case of toilets, both genders in our culture seem to want segregated facilities. Neither group is advocating for unisex toilets. In the case of gay people, one group is actively trying to deny basic human rights (the right to live in a family unit) to another group based solely on (I believe) the other group’s genetic makeup. I see your point, and I can only argue my own idea of ‘fairness’. But gay people have protections under anti-discrimination laws, so they have been recognised as a ‘class’. To me the ‘separate but equal’ issue is like telling a Black person he or she can marry another Black person and enjoy all of the rights and responsibilities of marriage, but cannot marry outside of his or her race. No reasonable person would agree to that, and the Loving decision overturned miscegenation laws. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 27, 2009, 2:46pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/53 "2009-05-27T14:46:35Z")
Don’t get me wrong, **Johnny LA** , I agree with you. Sexual orientation should be treated as a suspect class and given heightened scrutiny (or we dump the whole system but that is another argument). But it isn’t at the moment. There’s not a lot we can do about that short of a pretty major shift on the Court. Kennedy had his chance to go with it with _Romer_ but didn’t. I highly doubt Roberts, Alito, Thomas or Scalia would support it. That’s a majority straight off. I’m as for marriage equality as anyone. I just don’t think a federal equal protection suit is going to work. ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [May 27, 2009, 2:48pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/54 "2009-05-27T14:48:40Z")
> [@villa](#): > > Don’t get me wrong, **Johnny LA** , I agree with you. Oh, I got you. But damned if you’re not a good advocate for the devils! 😛 ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 27, 2009, 3:07pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/55 "2009-05-27T15:07:28Z")
Oddly enough, as a lawyer, I find that complementary… 🙂 The question facing us now is not where do we want to go, it is where can we go. It isn’t about what the law should be, it’s what the law is, and what changes are possible. The Cali court (and I will stop calling the state Cali when y’all repeal Prop 8, deal?) made legally the right decision, I think, on both counts. There’s no basis to make the law retroactive and strike the marriages, but Cali has a (bloody stupid) system that allows amendment by simple majority. Don’t like the results, change that system… There is a silver lining. If Cali (now I am just being gratuitous) can overturn Prop 8 through the ballot box, and the NY legislature does allow gay marriage, then I think it is pretty much game over. We’ve won. As long as this was done throught the courts (not that I think the courts don’t have the authority to do this) there were going to be people whining about it. Cali goes, then the PNW, then the mountain states (with one obvious exception) then the Midwest and the mid-Atlantic. If CA & NY do the right thing, then the tipping point has been hit, and pretty soon you will only see Dixie and Utah holding out. I hope, at least. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 27, 2009, 3:31pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/56 "2009-05-27T15:31:45Z")
> [@SteveG1](#): > > Would they want to simply “cancel” the marriages that had been legal when instituted? I don’t know how to argue this without rolling down th Slippery Slope, but I think it would be a bad precedent to set. Isn’t this the sort of situation that almost forces us to have “grandfather clauses” in laws? Well, leaving this issue aside, don’t any new laws make what used to be legal now illegal? And to not break the new law a person must stop doing the illegal behavior, no? Whether that is wearing a seat belt in your car, discharging fireworks, or gayly (new word?) marrying. I know, you are saying that they already got married, but the fact is that California holds these existing marriages to be “valid” in direct contradiction to what the constitution says. From what I’ve seen, grandfather clauses are only used in a handful of cases and are also explicitly contained in the applicable law. I think my 13th amendment comparison is valid, and the arguments the court used could be transposed to an argument to keep existing slaves: ex post facto, “it was legal when I bought the slave”, “I had long term economic plans with the slave”, etc) ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 27, 2009, 3:34pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/57 "2009-05-27T15:34:13Z")
Making a law retroactive is the exception, not the rule. You have to be very clear when you make a law if it is to have retroactive effect. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 27, 2009, 3:38pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/58 "2009-05-27T15:38:16Z")
> [@villa](#): > > Making a law retroactive is the exception, not the rule. You have to be very clear when you make a law if it is to have retroactive effect. Doesn’t the US Constitution explicitly prohibit retroactive laws? > [@](#): > > Article I, Section 10: > > No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, **ex post facto Law** , or Law impairing the Obligation of Contracts, or grant any Title of Nobility. > > SOURCE: [http://caselaw.lp.findlaw.com/data/constitution/article01/](http://caselaw.lp.findlaw.com/data/constitution/article01/) ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 27, 2009, 3:40pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/59 "2009-05-27T15:40:05Z")
> [@Whack-a-Mole](#): > > Doesn’t the US Constitution explicitly prohibit retroactive laws? Only criminal ones, IIRC. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 27, 2009, 3:44pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/60 "2009-05-27T15:44:10Z")
> [@villa](#): > > Making a law retroactive is the exception, not the rule. You have to be very clear when you make a law if it is to have retroactive effect. I don’t see how this law would be retroactive. It isn’t saying that they were never married. It is saying that from this day forward, they are no longer considered married. [Previous page](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725.md?page=2) [Next page](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725.md?page=4)