If they abolish the 18,000 marriages does that change the legal angle at all?
IANAL but from what I have read around here seems like it is one thing to deny a “right” that you never possessed in the first place (indeed they cannot “deny” you a right you do not have…it is incumbent upon you to convince someone you possess that right…or should) and a completely different thing to strip you of rights you currently have (much bigger deal and now the task of the government to say why you no longer have that right).
I am guessing the latter opens a can of legal worms.
None, but some would disagree with your premise; some people might have the idea that a popular vote is more ‘weighty’ than judicial fiat and that that alone is reason to resist the move, regardless of other considerations.
That is, they don’t think that it is good to do something bad to stop something bad.
Well yes and no. The California court could find that the California constitution guarantees equal protection for homosexuals, and that it also prevents homosexuals from being married. Therefore it could rule that in order for the provisions that appear in conflict to be made compatible, the marriage ban be extended to all Californians regardless of sexual orientation.
Ha! While agree it would be logically consistent there is no freaking way in hell they’d ever do that. More’s the pity. Would be funny to hear the howls when the Prop-8 proponents realized what they had wrought.
But the issue could be whether or not using the California initiative process to remove rights by a simple majority vote of the electorate violates the due process guaranteed in the federal constitution.
For example, could a majority vote of the electorate be used to remove the right of blond people to travel freely? Being blond is not a crime (nor is it a protected class). Normally, the state must use due process to incarcerate a person. So, would this anti-blond initiative pass federal due-process guarantees?
It seems to me Prop 8 removed a right without due process. Unless the vote itself is consider due process. I don’t know.
Actually, that would screw us pretty badly. They’d use it as proof that gay marriage leads to the destruction of marriage as an institution. No, that doesn’t make any sort of logical sense, but that’s how they’d spin it, and they’d be very successful in that spin.
The language of Prop 8 is murky and hastily written. Taken literally, it would allow incest marriage as well. Hopefully the lawyers will be smart enough to put the intolerant people who voted for it on the defensive with a clever legal ploy. I hope its overturned, but think like other people its better if it is done through the ballots. Maybe the next time marriage is extended for gays, the legislation can rush through an amendment prohibiting popular vote to amend our state constitution
Here’s what I think might happen: Prop 8 remains overturned, but the 18,000 asme sex marriages will be upheld. The definition of “marriage” will also be slightly changed-- to WHAT I do NOT know.
BTW, isn’t the original or oldest definition of marriage as “the passing of ownership of a woman and her property from father to husband”? Correct me if I’m wrong here, please.
Probably. People who vote for this stuff do not strike me as especially nuanced or subtle in their thinking. Doubtless they’d scream about the evil homosexual agenda to corrupt our children.
But if I don’t care about the actual social ramifications I think it would be funny.
Why in the world would you want that? And wouldn’t that violate the right of the people to petition the government for redress? Great Googly Moogly, being able to be involved in the legislative process is a good thing, overall, not something to be done away with because at times it can become difficult to parse.
Because, while initiatives are certainly a good way of forcing an issue through when the legislature doesn’t want to deal with it (which is why they were started…to weaken the power of the railroad-controlled state legislature), in practice it’s led to the passing of a lot of contradictory and confusing amendments, as well as cluttering up the ballot by letting any activist or group with an ax to grind. For instance, a lot of California’s recurring budget problems have had to do with a combination of Proposition 13, which really limits the ability of the government to raise taxes, and various propositions which mandate high levels of state spending.
I understand what you’re saying, but eliminating the ballot initiative isn’t the answer. When we percieved somewhat the same problem with our own initiatives in Nevada, we just made the requirements for a ballot initiative a bit more stringent (more signatures, for example).
While you are right that the Court has not found sexual orientation to be a protected class under Equal Protection analysis, it has done something rather odd. In Romer, the Court gave us “rational basis with teeth.” Rather than simply blindly accepting the state’s protestation of a rational basis, the Court actually examined it, found that it was lacking, and ruled that pure animus is not a reason for discrimination. It’s not certain whether that is setting up a special fourth class of analysis for sexual orientation, higher than regular rational basis review but lesser than the review for sex based discrimination, or if it is boosting rational basis review for everything.
Now, don’t get me wrong, I’m not expecting the Court to turn around and say that the Pro-8 arguments were pure animus (even though they were). I would think it is possible a lower court might, though.
Right now, it looks like the court is leaning towards upholding prop 8.
If so, that means that bigots or others who hold a simple majority opinion, but not an overwhelming majority opinion, can easily make drastic changes in a constitution. I doubt if this was any framer’s intent.
The mind boggles at majority opinions in the past which could have been enshrined in law, like prohibitions to inter-racial marriage, gay sex, or abortion. Even slavery could have been allowed, because it certainly was accepted by a majority in some states. It’s frightening to think that the silent majority has found a loophole that allows them to push their agenda.
Not true. Slavery is outlawed by the federal constitution. A state may grant constitutionally protected rights in excess of those guaranteed by the federal constitution, but may not set a lower bar.
The problem here is that currently federal courts read the US Constitution as not guaranteeing marriage rights to homosexuals (or more accurately not guaranteeing the right to same sex marriage - as people never tire of saying, homosexuals have the right to marry, they just cannot marry a person for whom they have sexual attraction).
