From last time, there’s two things :
(1) Original Intent: This is a subjective term, yes, but the procedural matter of who interprets the “intent” of a law is not up for debate. Hell, I don’t even think that “original intent” was brought up rationally in the comments, but, if you wanna talk “historically,” I can play that game too. Per the U.S. Constitution, the judicial branch interprets the laws. So, we’re basically talking about the CA Supreme Court, and, in the case of a formal amendment of a law, the CA legislature. The voters have no direct role in this process–this is not merely a personal opinion but a fact of constitutional law. If you have a problem with that, then arguing with me will do you no good, so write to the CA legislators or Arnold Schwartznegger.
(2) Power to the People & All That Shit: A long-time commenter is, apparently, still pissed at me about this because he no longer says anything around here. Anyway, he wanted to know why I was concentrating about the CA voters when so many other states had, at some point, voted to ban gay marriage. Here’s why: California is the only state that had already legalized gay marriage before a vote was held. Of course, I’ve already stated too many times that it was unconstitutional to allow voters to amend part of a state constitution. Now, the Supreme Court of California will contemplate that issue as well.
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12 comments
Look, I can’t pretend like this affects me, but I do care deeply about it. Prop-8 is wrong, an illegal action under the 14 amendment, and as you pointed out, could have been done differently.
That being said, I hope it gets struck down and the marriages will be recognized. “Life, Liberty, and the Pursuit of Happiness”. Different document, but still good stuff. Stuff worth debating, sharing, and defending.
You have the right to disagree with me. Be thankful that hasn’t been repealed (*cough-John Adams-*cough).
AB, regardless if you agree with them or not, calling Mormons and Catholics “haters” is really over the top. Besides, the Black and Hispanic communities also went for Prop 8 in overwhelming numbers. Are you going to call them haters too? I’m sure they would find that not a little bit ironic.
There’s a very fine line here in painting the opposition as demons. By this logic, we can call the California Supreme Court a bunch of haters for thwarting the will of the voters in the first place.
I agree with you Geo. Both sides have demonized the other, and, yeah, lots of Blacks and Hispanics voted for Prop 8, but it was mostly the Mormons and Catholics who fronted the $73 million to get this thing passed.
The CA Supreme court had ruled before all this mess started that a ban on gay marriage would be “unconstitutional”. Isn’t that enough to realize that Prop. 8 is illegal!? (even though rougly half of CA voted for it). Sorry, and we’re assuming that Hispanics/Latinos are mostly Catholic, but there are plenty who do not practice and are in fact homophobic. I should know, I’m from Puerto Rico and I’ll probably here a who slew of arguments for this ban when and if I go back for a visit. And CA did make gay marriage legal before Prop. 8 came into the legislative landscape. So there!
Kudos to you, kiddo, for this astute observation. Framing the argument around the idea that this taking rights away that were already granted is a very spot-on point. This will probably be overturned by the CSC and that would be good news. Civil libertarians unite!
As to someone bugging out on you because of a disagreement; we have a saying over at the Anonymous boards. Goes something like “and nothing of value was lost.”
“an illegal action under the 14 amendment”
I’m pretty sure it doesn’t say anything about marriage, gay or straight, in the 14th amendment no matter how much we try to shoehorn an issue into it.
No matter how passionately an issue may affect someone, the will of the people can’t just be swept under the rug because we don’t like the outcome. We’re not talking about something like slavery where a person’s physical freedom is affected – just a piece of paper saying that a marriage is ‘official’.
When the handfull of justices in the courts are used to circumvent the outcome of a vote of several million people, it’s not that small a step to imagine them installing their own president because a minority of the population in a single, toss-up state doesn’t want the Marxist that the rest of the country voted for infringing on their 1st, 2nd or other (actual) constitional rights that he has promised to do.
It’s also a bit one-sided to say the outcome was mainly due to the money that a particular group put up because both sides pumped millions into this debate.
We can agree to disagree but my position would be the same if the vote had turned out differently. I don’t really care what happens in California. As a matter of fact, I’m all for two hot woment, uh, nevermind.
Sigh. I have studied the 14th amendment ad nauseum and also been tested as such. The 14th amendment is not a literal creature because it largely delegates to the states, but it has been interpreted by the U.S. Supreme Court to include MANY things, including the right to privacy and access to birth control. Neither of these rights appear in so many words in the 14h amendment, but it’s in the case law of the U.S. Supreme Court. These things seem indispensible to our society, but it’s not provided for automatically by the so-called Founding Fathers. So, it can reasonably include the right to gay marriage, even though it’s not articulated.
I went to law school, and I’m not an idiot, so these aren’t just things that I’m pulling out of my ass. Those of you who don’t agree won’t ever agree, but I can blog about it if I so desire. Obviously, I wouldn’t take time our from our regular AB programming if I didn’t feel strongly about this topic.
It is a curious thing that blacks and hispanics would want to support an act to take away human rights from another minority. There is some potent propoganda online which highlights this phenomenom, with black Christian leaders doing comparisons between rights for black people and rights being sought for gay people and claiming that they are two different things. The argument very broadly goes that gays were not slaves, could not be shown to have economic disadvantage and other factors that effect African Americans. Hate is hate no matter who is peddling it.
Opposition to gay marriage is however primarily the agenda of religious cults and even if people don’t care about gay rights they should care about the fact that a handfull of fanatics are setting about reconstructing society to suit their own beliefs, and they have the money and the people power to have a wideranging effect.
Remember how same sex unions used to legal in Hawaii? Mike Gabbard, a member or another cult, worked with the Mormons and received piles of money to attack gay rights in Hawaii, California and travelling as far as New Zealand on a world tour of bullshit. (http://www.mikegabbard.info) As a straight woman outside the US this law doesn’t effect me at all, but I don’t want to live in a society where people like this get to say what’s right about anything.
Gay people already have the right to marry – but not to redefine the institution of marriage itself. The California Supreme Court will not strike down the amendment.
I am not an expert on constitutional law and I don’t even play one on TV, but I have to say that the implementation of social policy by judicial fiat is disturbing to me. When that tinkering is overridden by popular vote, and the will of the electorate is disregarded by these same unelected judges, that is deeply disturbing to me. I view this whole thing with a great deal of concern.
That said, I disagree with the ideas contained in Prop 8 as I understand it. I think gay people probably do deserve the right to get married in California. I also think whether they should be able to, if it’s up to anybody, it should be up to the people who reside in that state. Not me, not the Federal government, and not a handful of unelected judges. It seems to me that if the Constitution is so vague that is somehow has lurking in it all these previously undiscovered “rights”, then this will never stop.
I think the reason Prop 8 passed is exactly because people are (rightly, IMO) distrustful of judges who legislate from the bench. I also think you’ve got it exactly backwards — Prop 8 itself was blowback from the earlier tactics used by the gay rights movement. I have no doubt that gay marriage is coming, but I think the attempt to ram it through using left-leaning judges was a mistake and will delay it from happening on a widespread basis for years.
No matter your stance, there are a few things that both sides should recognize…
1) Social legislation should be voted on by the people. It’s the way our system of gov’t is set up. And it is set up this way so our gov’t won’t be able to have too much control.
2) It is not the job of any judge to legislate from the bench. Any judge who does this should be disbarred. It is illegal, technically, and yet Americans allow it so they don’t have to bother to think for themselves how social issues affect life as we know it.
3) You cannot legislate morality. However, the will of the people should be met by the gov’t they elect. Denying an entire group of people a basic civil liberty is wrong. But legislating from the bench will not change the will of the people they are “chastizing.” Yes, Californians (and Arizonians and Floridians) need lessons in basic humanity, but the majority will won out.
And yes, it feels fine up here staddling the fence. My husband asks if it chafs, but I’m made of thicker skin than that. Plus, I’m very short. I can see things better up here.
Jvon and Fluffy,
You don’t seem to understand one of the basic principles of our system of government: majority rule and minority rights. Our Constitution contains many checks against an untrammeled majority. Our courts bear a large part of that burden. The PURPOSE of judicial review is to check majority-supported and enacted legislation if it violates Constitutional protections. The founding fathers removed federal judges from the possibility of facing the electorate to secure their immunity from popular passion.
If you believe that judges should never overturn laws supported by the majority, what do you envision their role to be?
Furthermore, to be intellectually consistent, you must also oppose Brown v. Board of Education, Loving v. Virginia, and Heller v. District of Columbia. All three of those rulings overturned the will of the majority.
Lastly, anti-gay marriage forces should be very careful about their demands for submission before the majority. Public opinion is shifting towards tolerance rather quickly. I’m confident that gay marriage will win the next voter battle in California. One wonders if the anti-gay forces will be intellectually honest and say “Well, I used to argue that popular will should trump the courts, so now that the popular will accepts gay marriage, I withdraw my objections.”
I cannot believe they would do that. The arguments of the anti-gay marriage forces mostly disingenuous – when you apply logic and scratch the surface, it always comes down to “My Jesus says gays are icky!”
Jesus’ ickyfication isn’t a good basis for public policy.