I’d like to see them eliminate the tiered system in entirety. Everything gets rational basis review, but rational basis should require the state to have, you know, a rational basis for doing it. Now the level of justification would be higher to count as “rational” with some kinds of discrimination than others, but dump the whole protected classes concept…
I never understood the “rational basis” argument. Surely if it passed by a majority of each house of a state legislature, and was signed into law by the governor (or alternatively vetoed by the Governor and passed by 2/3rds in each house) that there must be some rational basis, no? Or is the Court saying in each of these circumstances that every legislator and Governor who supported the bill must have been off their meds when they passed it?
Because there’s no corresponding federal right. A state is free to amend its constitution to give greater rights to its citizens than the federal government does, and it’s also free to reduce those rights to those rights under the federal constitution.
It’s probably bad terminology to use, I agree, but we are kind of stuck with it. “We feel ike it” or “we hate homos” isn’t “rational.”
There might be a “rational basis” for a political calculation behind voting for a law, but for the law itself? If there were, we’d have seen some hint of what it might be by now, right?
I am still very confused on how they can let those 18,000 marriages stand. It seems very confusing and bizarre to me. For one, does that mean that same-sex couples will have to provide their marriage certificate that shows they were married in that ~6 month window? It seems that in most cases hetero couples don’t have to show their marriage certificate, people just take their word that they are married.
That answers the equal protection complaint, but not the due process complaint. That is, does a state have the power to remove a right derived from its state constitution (and not the federal) without the guaranteed (under the federal constitution, at least) due process. I would say no, it doesn’t have that power; if a state recognized a right, it must use due process to remove it.
This sort of thing happens all the time. A new law may be passed that makes something illegal but those who legally did (whatever) prior to the law taking effect are fine. For instance (just an example) when the Assault Weapons Ban was passed in the 90’s it allowed anyone who had such a weapon prior to that to keep and use and even sell those guns. Only new guns were banned.
And if they outlawed marriage for hetero couples then yeah…I expect those married before the ban would need to be able to prove they were indeed married prior to the ban.
I think the idea would be that given that a simple majority is sufficient to alter the California constitution, that is sufficient due process as regards changes in California’s relationships with its citizens that do not relate to a protected federal right. The fact that the US constitution requires higher hurdles to be passed to amend doesn’t affect the due process requirement for CA amendments (provided they meet a certain level, I would assume).
What about a same-sex couple living in California who got married in Canada or Massachusetts? Presumably any couple who either married and/or moved to CA after Prop 8 wouldn’t have their marriage recognized, but what will happen to couples already married and living in CA?
What’s really disturbing to me is that, if Proposition 8 is upheld, it proves we really don’t have much of a Constitution in this state at all; instead we have just another statute book into which 50.01% of the electorate can enact any damn thing they feel like without any meaningful recourse by opponents. Don’t want something to be invalidated on principle by judicial review? Just make it a constitutional amendment.
It’s almost a mockery of the word “constitution”. Does anyone question why the federal constitution says nothing about things like gay marriage or recreational marijuana? Of course not, because prohibiting and regulating behavior, and even morals, is not an inherent component of the structure of a government.
More like a “definition”.
Although you are correct - Prop 8 was to take it out of the hands of judges and into the hands of the people. Because the will of a majority of those who got out and voted was implemented, and not the will of a judge.
I suspect if we could all agree that gay marriage was not in the CA constitution, and it was not the proper role of judges to put it there, we could have spared a good deal of thrashing about.
But now, for better or worse, Prop 8 put it exactly where matters not covered by any constitution belong - in the hands of the people. And ISTM that the proponents of gay marriage would be better served to begin the admittedly difficult task of persuading 51% of their fellow citizens to give them what they want, instead of getting judges to impose it by fiat.
Regards,
Shodan
Which leads directly to the tyranny of the majority. Something our Founding Fathers were keenly aware of and sought to avoid. As long as 50%+1 person agree someone’s rights should be restricted then it is so.
It does not belong in the Constitution. A Constitution that codifies discrimination? That is appalling.
Such things are in the hands of the people. They can vote in new legislators and see a different set of judges appointed or, if they want revise the Constitution but Constitutional revision should be a difficult process. It is that way with the US Constitution and for good reason. Can you imagine the US Constitution being revised by anyone with a bug up their butt to put on a ballot measure every four years and implemented if 50%+1 person think it is a good idea? Would be a nightmare of epic proportions.
People once upon a time thought black people should not marry white people. A judge overturned it. Damn, evil activist judges! If the people want segregation then by damn we should have it! (sarcasm alert)
Indeed.
But that is much of the problem - instead of the difficult task of revising the CA Constitution, proponents of gay marriage tried to short-circuit the process by getting a judge to rule it into the constitution.
As you say, revising should be difficult. I suspect it will be more difficult now than if no judge had tried to impose a right to gay marriage by fiat in the first place.
No doubt much of the push behind Prop 8 came from simple bigotry. Some came from sincerely held religious belief, or social beliefs, or simple inertia. I suspect some of it came from a desire not to be dictated to.
Making a case for gay marriage is different from telling people they are going to get it whether they like it or not, even though making a case takes longer. ISTM that it will take that much longer now that there is a constitutional amendment to overcome. And it is even more grotesque (in my view) to have judges arguing about whether or not the CA constitution is un-constitutional than it is to say that it says what it doesn’t say, and what a majority of CA citizens don’t consent to.
Regards,
Shodan
I actually agree with this sentiment, in large part. Not that I am sympathetic to the Prop 8 side on Constitutional grounds, per se. But I certainly would like to live in a world where 51% actually want it to be that way. I do disagree that I think it will difficult. I think that it will happen sooner rather than later.
You write this as though the citizens of california are going to be forced into gay marriages themselves, which is obviously not the case. We have the majority enacting a law to oppress a separate and helpless minority. That’s even more grotesque than judges interpreting the constitution (which is, of course, their job).
Not unlike the situation we find ourselves in today, in California.
Aw, heck, that’s nothing! If you really want to see an end-run around the constitution, take a look at how straights managed to get their marriages recognized. They didn’t even involve the judges, they just went ahead and did it without any constitutional justification at all!
Shame on Richard and Mildred for going to court instead of petitioning the legislature.
They would be forced to pay for it though.