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Is the Proposed California Same-Sex Marriage Ban an Unconstitutional "Revision" by Initiative?

SanFranciscoSentinel.com reports:

A marriage equality group asked the California Supreme Court in San Francisco today to remove from the November state ballot an initiative that would ban same-sex marriage.

Equality California argued in a lawsuit filed directly in the high court that the measure would be a state constitutional revision, not an amendment, and would therefore require more elaborate procedures for passage.

A few quick thoughts (I'm on a trip and can't get into as many details as I'd normally like):

1. Under the California Constitution, the initiative can be used for "amendments" but not "revisions":

[Art. XVIII, § 1.] The Legislature ..., two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution ....

[§ 2]. The Legislature ..., two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution....

[§ 3]. The electors may amend the Constitution by initiative.

[§ 4]. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.

Comparing section 1 with section 3 shows that, while the legislature may either propose an amendment or a revision, the initiative process may only propose an amendment and not a revision. And Raven v. Deukmejian, 52 Cal. 3d 336 (1990), confirmed this.

2. The proposal to allow only same-sex marriages is likely to be found to be only an amendment, not a revision. Raven struck down an initiative that would bar the state courts from interpreting the state constitution in a more defendant-friendly way than the federal constitution is interpreted, as to a wide range of constitutional provisions. (Generally speaking, state prosecutions must comply with both the state constitution's bill of rights and the federal bill of rights, and while states often interpret state constitutional rights the same way as the U.S. Supreme Court has interpreted the analogous federal right, they also have the power to interpret the state rights more broadly.)

The court stressed that the proposal made "such far reaching changes in the nature of our basic governmental plan as to amount to a revision," because it "involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution," as opposed to only dealing with one specific right:

In effect, new article I, section 24, would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect. As an historical matter, article I and its Declaration of Rights was viewed as the only available protection for our citizens charged with crimes, because the federal Constitution and its Bill of Rights was initially deemed to apply only to the conduct of the federal government....

Thus, Proposition 115 not only unduly restricts judicial power, but it does so in a way which severely limits the independent force and effect of the California Constitution....

It is true, as the Attorney General observes, that in two earlier cases we rejected revision challenges to initiative measures which included somewhat similar restrictions on judicial power. In In re Lance W., 37 Cal.3d 873, 891 (1985), we upheld a provision limiting the state exclusionary remedy for search and seizure violations to the boundaries fixed by the Fourth Amendment to the federal Constitution. In People v. Frierson, 25 Cal.3d 142, 184-187 (1979), we upheld a provision which in essence required California courts in capital cases to apply the state cruel or unusual punishment clause consistently with the federal Constitution.

Both Lance W. and Frierson concluded that no constitutional revision was involved because the isolated provisions at issue therein achieved no far reaching, fundamental changes in our governmental plan. But neither case involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution....

3. And the two cases that I've found in other states that dealt with the same question have likewise concluded that an opposite-sex-only marriage initiative was an amendment, not a revision: Bess v. Ulmer (Alaska Supreme Court, 1999), and Martinez v. Kulongoski (Oregon Court of Appeals, 2008). Bess, in particular, expressly applied California precedents (though with a minor change that doesn't seem relevant here), and concluded that the opposite-sex-only marriage initiative was an amendment, not a revision: "Few sections of the Constitution are directly affected, and nothing in the proposal will 'necessarily or inevitably alter the basic governmental framework' of the Constitution."

4. That the proposed amendment would cut back on the scope of a state constitutional right shouldn't affect this analysis, or otherwise make the amendment unconstitutional. As the two cases cited and distinguished in the Raven excerpt quoted above show, the amendment process may be used to cut back on the scope of a state constitutional right as well as to add to the scope of such a right. (State constitutional amendments of course can't be used to cut back on the scope of a federal constitutional right, but the California Supreme Court same-sex marriage decision rested solely on the state constitution.) One point of the state constitutional amendment process is to make sure that the scope of state constitutional rights is decided by the voters in the state, not just by the seven voters on the state supreme court, especially since those seven voters themselves derive their constitutional authority from a document enacted by a majority vote of the states' voters.

5. All this goes to the merits of the constitutional question, but what about the timing? May this "impermissible revision" challenge be raised before the election, or must it wait until the voters approve the amendment (if they do indeed approve it)? It seems like the preelection challenge would be allowed here. As the California Supreme Court has put it (emphasis added), "'[I]t is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity.'... [But] '... this general rule applies primarily when a challenge rests upon the alleged unconstitutionality of the substance of the proposed initiative, and ... the rule does not preclude preelection review when the challenge is based upon a claim, for example, that the proposed measure may not properly be submitted to the voters because the measure is not legislative in character or because it amounts to a constitutional revision rather than an amendment.'"

6. There have been some other constitutional arguments raised about the constitutionality of the proposed amendment; I hope to speak to them later, but likely not this week, because my opportunities for blogging will be limited (and chiefly focused on the Second Amendment case).

tvk:
All very well, but the cynic in me can't help but speculate that if a 4-3 majority of the California Supreme Court is willing to go out on a limb and judicially impose gay marriage on the entire state in the face of a popular voter initiative the first time round, why can't the same 4-3 majority go the whole nine yards and make its decision effectively unchangable?
6.23.2008 4:31am
Cornellian (mail):
You'd think for something as fundamental as that the drafters might have put in a few words about the difference between an amendment and a revision.
6.23.2008 5:56am
Brett Bellmore:
Would it be a "revision" for Californians to amend that to read, "The electors may amend or revise"?
6.23.2008 7:32am
martinned (mail) (www):
@Cornellian: That would have made sense. The California Constitution does seem to have a more detailed style than the Federal one, so that can't be it.

In any case, the precedents quoted seem reasonable to me. I guess some people's worries about the California Supreme Court "imposing" rights are somewhat premature...
6.23.2008 7:33am
martinned (mail) (www):
@Brett Bellmore: Both from the case law and from common sense, I would imagine so.
6.23.2008 7:34am
PersonFromPorlock:

You'd think for something as fundamental as that the drafters might have put in a few words about the difference between an amendment and a revision.

For some reason, when I saw "the difference between an amendment and a revision," what popped into my mind was "Duck! Rabbit!"
6.23.2008 7:37am
David Schwartz (mail):
I think the best challenge would be that this amendment would violate the federal constitutional prohibition on ex post facto laws. Declaring what was once a marriage to no longer be one quite literally changes the legal status of relationships that existed prior to the enactment of the law.

Do I have to worry that someone will find a reason to make me no longer married too?
6.23.2008 8:44am
zerlesen:
"The proposal to allow only same-sex marriages is likely to be found to be only an amendment, not a revision."

At last, the sinister endgame is revealed!
6.23.2008 8:47am
jrose:
I think the best challenge would be that this amendment would violate the federal constitutional prohibition on ex post facto laws

That prohibition only applies to criminal penalities.

Also, the amendment is silent on what happens to marriages solemnized prior to November. That question will likely be litigated (assuming the amendment passes).
6.23.2008 9:06am
Bart (mail):
jrose:

Only marriage between a man and a woman is valid or recognized in California .

All other "marriages" would be void under CA law.
6.23.2008 9:38am
L.A. Brave:
Reminds me of an article I read recently. It has nothing to do with men vs. women, but explains why knee injuries (and other human body quirks) are the result of us having an "inner fish": Fish Out of Water.
6.23.2008 9:42am
U.Va. 3L:
Bart:

All other "marriages" would be void under CA law.

Certainly, but as jrose notes, that's going to be litigated. It seems to my admittedly untrained eye that couples whose marriages are voided have a pretty good argument that voiding their marriages is a violation of the Contracts Clause.
6.23.2008 9:43am
L.A. Brave:
Er, disregard my above post as totally, completely off topic.
6.23.2008 9:43am
L.A. Brave:
Doesn't this ultimately end up in the federal Supreme Court anyway? Based on Romer v. Evans, it seems clear that a state constitutional amendment can be reviewed by the Supreme Court. This amendment would be a restriction on the right to marriage, which is subject to strict scrutiny. Guess it could pass strict scrutiny, but that seems doubtful.
6.23.2008 9:52am
Roger Schlafly (www):
voiding their marriages is a violation of the Contracts Clause.
It makes just as much sense to say that not voiding the marriages would be a violation of the Contracts Clause. All California same-sex marriages are being performed with an understanding that they are subject to a Nov. initiative on the subject. Any couple that just wants a contract that will last past Nov. can get a domestic partnership instead of a marriage.
6.23.2008 9:54am
U.Va. 3L:
All California same-sex marriages are being performed with an understanding that they are subject to a Nov. initiative on the subject.

But when did "an understanding" become part of the law?
6.23.2008 10:01am
martinned (mail) (www):
@L.A. Brave: Wow! That's a cool argument! Like any decent lawyer, I sometimes love cool arguments even if they don't have any real chance of success before a court, simply because they're creative or just plain cool.

(My personal favourite: The Tadic case before the Yugoslavia tribunal, where Tadic argued that the Security Council was ultra vires when it created the tribunal. No one really expects the court to agree with that, but it's still interesting to see what they say about it.)

In this case, if I understand you correctly, you're offering the argument that there is a Constitutionally (Federal) relevant difference between not ever having SSM and having SSM and then taking it away. Cool! (I have no idea whether such an argument might fly, unfortunately.)
6.23.2008 10:10am
contract clause mourner:
UVA 3L,
The contract clause has been dead since the early 1930's, when the Supreme Court said it was okay to stay foreclosures. The name of the case escapes me now. I don't believe there has been a successful contracts clause case since then, though.
6.23.2008 10:18am
L.A. Brave:
Same sex couples can currently marry in California. If the amendment passes, they will lose that right.

So yes, there is a very significant difference between finding a right to same sex marriage in the Constitution as opposed to protecting an existing state right to same sex marriage.
6.23.2008 10:20am
Blah:
"Impose gay marriage"? Explain to me how granting a choice is an imposition on anyone (at least in this case)?
6.23.2008 10:28am
Anon Y. Mous:
OK, what am I missing? Based solely on the text quoted, it appears that the difference between a revision and an amendment is the process used to achieve the result: changes to the California Constitution are referred to as amendments if the initiative process is used; if changed via a constitutional convention, it's called a revision.

If that's not the distinction between a revision and an amendment, than what is?
6.23.2008 10:33am
Forgotten Password (mail):
Group sues in court to prevent the voters from exercising their power to 'correct' the court's interpretation the constitution and reverse a decision of that Court granting the group their personal red pen over the English language.

'Mommy, Daddy says I can't take the car out Friday night even though you said I could... Make him stop!'

Can't you just smell the fear? The petulance?

I wonder how the court will decide? I think they'll side-step the issue for fear of pitchforks.
6.23.2008 10:38am
Per son:
When is the law gonna change in California!?!

I want the value of my marriage restored. It just has not been the same since those pesky judges got in the way.

Since that decision, my wife just is not the same.

lol
6.23.2008 10:39am
Roger Schlafly (www):
But when did "an understanding" become part of the law?
For hundreds of years. The understanding of the parties has always been a part of contract law.

LA Brave, are you saying that it would be legal to have an amendment creating same-sex marriage, but not an amendment abolishing it? Are there some amendments that cannot be repealed under any circumstances?
6.23.2008 11:08am
DangerMouse:
I think they'll side-step the issue for fear of pitchforks.

Don't bet on it. The Court hates the People. In their view, it's their job to rule, it's the people's job to follow. They'll do anything to prevent that Amendment from becoming law. Theirs is a high and lonely destiny.
6.23.2008 11:19am
MPP (mail):
Roger Schlafly,

Sorry. But that's too clever. Marriages are being entered into with the understanding that there is a fundamental right under the California Constitution to marry. It's absurd to expect people to put their marriages on hold because an initiative will be on the ballot in a few months and may pass. In that case, if the amendment doesn't pass, I am sure there will be another one and another one and another one after that. Are all rights on hold until this is resolved?

Show me one example where a contract was invalidated becuase the parties knew (and it's unclear when that knowledge actually became clear...when the measure was discussed? when it got enough signatures? when it was officially approved to be on the Nov. ballot?) that there was a chance that a law might pass that might invalidate the contract. Come on, bro. Pull it together.
6.23.2008 11:35am
MPP (mail):
DangerMouse:

Moving the fear-o-meter to Orange isn't going to work here. Sorry.

Let's talk about how Democratic these initiatives are? Starting step by step:

(1) People stand outside of grocery stores, claiming to have you sign something about "saving the enviroment," and then slip in this anti-gay-marriage sheet (or some other cause) that you sign willy-nilly. (I've seen it happen several times; I've gotten into arguments with these paid-per-signature liars).

(2) It gets put on the ballot. Often with some counter intiative that has deceptively similar language as the other one. No one knows what they are voting on. Does this give more money to Indian tribes or less? Is this an increase in term limits or a decrease? Is this more money or less?

(3) People check a box. Often unclear what they voted on or the ramifications. Often deceived about what the REAL impact of their vote is. Often deceived about WHO is backing the amendment. Innocuous names like "Lovers of Constitutional Freedoms" or something are used to adorn the "Vote Yes" pamphlet explanation. "Oh that sounds good" says John Doe "I'll vote for that."

That's not democracy. Sorry. It's just not. Or if it is, it's why we live in a republic because pure democracy just doesn't work.
6.23.2008 11:42am
MPP (mail):
Anon Y. Mous:

There is a difference. If a change to the constitution is considered profound enough (i.e., meets the tests that Eugene discusses above), then it can only be made via revision (a more onerous process). If a change does not rise to that level, it's an amendment, and can be achieved by initiative. If this amendment would be a revision, then the initiative would not be enought to effectuate it.

See?
6.23.2008 11:45am
trad and anon:
Doesn't this ultimately end up in the federal Supreme Court anyway? Based on Romer v. Evans, it seems clear that a state constitutional amendment can be reviewed by the Supreme Court. This amendment would be a restriction on the right to marriage, which is subject to strict scrutiny. Guess it could pass strict scrutiny, but that seems doubtful.
The gay-rights movement isn't stupid: they aren't even going to make that argument because they know that it would end up creating contrary president. Either they lose at SCOCA, or they lose in the 9th Circuit (if it winds up there and they somehow get a panel that doesn't agree with them), or they win below and SCOTUS smacks them down. No matter what they end up creating contrary precedent with near-100% probability.

Of course if some gay couple wants to try anyway, there's nothing the gay-rights movement can do about it. But although I agree with the argument in substance, there's now way SCOTUS, as currently composed, would ever agree.
6.23.2008 11:46am
L.A. Brave:
trad and anon:
You see 5 justices finding a compelling government interest in taking away the right to marry from same sex couples in California?
6.23.2008 11:55am
Kazinski:
If you are presented with the spectacle of the CA Supreme Court changing the law, then disallowing the people from amending their constitution to restore the law as it was, it becomes more difficult to suppose we still have a government answerable to the people.

Mario Savio's words echo down through the decades:

There's a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part, you can't even passively take part, and you've got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you've got to make it stop! And you've got to indicate to the people who run it, to the people who own it, that unless you're free, the machine will be prevented from working at all!


Good thing the Justices in California have to face the voters periodically. This wouldn't be the first time they've gone too far and the people have had to take corrective measures.
6.23.2008 12:03pm
Kazinski:
MPP:
That's not democracy. Sorry. It's just not. Or if it is, it's why we live in a republic because pure democracy just doesn't work.

Heh. That's quite an about face in short paragraph, first it's not dmocracy then if it is, it's pure democracy.

"That's not an orange. But if it is an orange then it is the most perfect orange possible."

I kind of think the problem is that you don't like the some of the results of democracy, not that you don't like democracy itself.
6.23.2008 12:36pm
DangerMouse:
I kind of think the problem is that you don't like the some of the results of democracy, not that you don't like democracy itself.

Of course that's MPP's problem. After all, what got him all riled up was my correct statement that the Court views itself as Masters and the People as followers. And then he proceeds to rant that the Followers are making stupid decisions that are better left to the Masters.

Thanks for making my point, MPP.
6.23.2008 12:41pm
Roger Schlafly (www):
Changes in the law affect contracts all the time. Tax changes are particularly common. If California suddenly abolished medical marijuana, your marijuana contracts would not be valid any more, even if you think that getting high on marijuana is a fundamental right.
6.23.2008 12:43pm
MPP (mail):
Actually, it makes perfect sense.

It is not likely the true will of the people (for reasons explained). If that is how democracy (the process) is destined to work (people get duped into voting for things they don't understand), then it's severely flawed because people aren't putting in the effort needed to make democracy (the concept) work.

Something that people fail to point out is that in a true democracy to pass an initiative it should require a majority of the people. IT DOESN'T here. It only requires a majority of the VOTERS. That's a minority of the population. So the argument that "the people want x" or the "people want y" is bogus. The people, as it were, DON'T CARE and don't vote.

What's more, the gay marriage initiative is only at risk becuase the people who vehemently oppose are more likely to vote than the people who are indifferent (i.e., don't care one way or another about gay marriage). The latter group, the live and let lives, aren't affected directly, so their incentive to vote is lower. So, in the end, it's a MINORITY of the population who would be imposing its will on the rest of us (and more directly, on a super minority population--gay people).

Any response?
6.23.2008 12:49pm
Cornellian (mail):
Of course that's MPP's problem. After all, what got him all riled up was my correct statement that the Court views itself as Masters and the People as followers.

No doubt then, the voters of California will vote the whole Court (or at least the majority) out of office at their next election.

Or maybe not. Don't hold your breath.
6.23.2008 12:53pm
MPP (mail):
Roger:

But that has nothing to do with the fact the state is contemplating a law change. Your argument has shifted from contracts are somehow weaker when they are made with the knowledge that the law might change, to now, where you are saying that contracts can be invalidated by law change. They are distinct points, and I think you know that.

While the former point you made is most clearly wrong, the latter is, indeed, debatable. It's an interesting question and we'll have to see. The problem as posed is whether or not the contracts clause has anything to say about this (contracts clause problems arise in your marijuana scenario, too, by the way--so that's not as clear of a question as you might think). It's especially interesting to ask whether or not a contract based on a fundamental right can be invalidated retroactively. I don't think the answer is as clear as some of you want it to be.

Also, it's not about an individual's "thinking" something is a fundamental right. Gay marriage is a fundamental right. Please don't play fast and loose with language here.
6.23.2008 12:56pm
IB Bill (mail) (www):
I'm confused. My assumption (just that) is that if the voters scuttle "gay marriage" in November, it wouldn't affect the existing marriage contracts among gay people between June 17 and the vote. Essentially, this sounds like one of those things that needs to be "grandfathered in". I can't imagine nullifying the existing contracts ... but I haven't really thought through the implications.
6.23.2008 12:59pm
MPP (mail):
DangerMouse:

Your facile court-as-master-people-as-follower rhetoric is ineffective. People weren't told to do anything follwing the In re Marriages decision. You can continue living your life unaffected. NOthing's changed for you. You don't have to accept gay marriage.

What you (and others) are made about is that fact that the Court has protected a minority from the will of some people (who you will wrongfully consider a majority) to oppress it. You see, DangerMouse, it is YOU who wants to assert your tyranny over others, not the Court.

I have an idea, though. Why don't you just worry about your own life. I'm sure there's something salvageable in it.
6.23.2008 1:01pm
Per Son:
First the Court will mandate gay marriage.

Then the Court will force hetero couples to become gay.

Finally, the Court will outlaw all abortions if they are the result of alien butt babies.

It is all part of the ploy . . .
6.23.2008 1:05pm
MPP (mail):
IB Bill:

We don't know. You would think so, but it's not completely clear.

One interesting consideration is this. The proximity of this amendment and the legalization of gay marriage is really close, so people haven't invested much in their marriages at this point (maybe). But imagine this amendment came in 15 years. Would an amendment be able to dissolve a married couple? With kids? A family? Property? Seems unlikely. If not then, then why now?

Also, there are other arguments people may not have considered. There are religious implications. Many assume gays are not religious, but that is not so. Maybe a gay person believes in marriage once and forever. If I get married and my marriage is invalidated, then the government is essentially forcing me to violate my religion if I get remarried again (to the opposite sex, let's say). I don't know if that will go anywhere because the restriction is neutral (not meant to target a religion...see, e.g., Peyote-smoking Indians).
6.23.2008 1:06pm
shawn-non-anonymous:

Do I have to worry that someone will find a reason to make me no longer married too?


(IANAL)
An interesting question. I wonder if the entire state decided to just punt and declare all "marriages" downgraded to "Civil Unions" if the Federal Government would then not recognize all these heterosexual civil unions? That would be disaster for international couples and create all sorts of inheritance issues. Military members would lose their marriage allowances. 30+ million Californians will get to see what it's like to have their "marriage" disappear as they cross state lines.

While it's amusing to imagine people boiling in a soup of their own making, I really wouldn't wish this on anyone.
6.23.2008 1:06pm
MPP (mail):
Shawn-not-anonymous:

It's definitely possible. It's possible that the if the amendment passes, the COurt will say, fine "marriage is between a man and woman," then marriage itself is unconstitutional. The amendment doesn't say anything about marriage being constitutional or required to exist.

The In re Marriages decision definitely makes this point nad it might have been in anticipation of this amendmnet.

Brah ha ha ha ha Braahaahahaahaa. (evil laugh).
6.23.2008 1:11pm
Kazinski:
MPP,
If the people of California voted for same sex marriage, I'm sure you would consider it valid and binding until the end of time. That's one of the problems, the elites keep trying to tell us that we can vote yes, but we can't vote no.

Corneilian,
Maybe the people will toss a few justices overboard, maybe they won't. They've done it before and it changed the character of the court for over a decade, making it much more conservative. Even those that don't care much about gay marriage can detect an abuse of power if the Supreme Court decides its judgement on gay marriage can't be challenged by the people.
6.23.2008 1:13pm
DangerMouse:
People weren't told to do anything follwing the In re Marriages decision.

Yes, they were. The People were told that a Constitution that was enacted more than 100 years ago by the People of the State of California meant to provide a fundamental right to homosexual so-called "marriage" even though at the time homosexual activity was a felony. I didn't realize that the People were so adept in doublethink.

You can continue living your life unaffected. NOthing's changed for you. You don't have to accept gay marriage.

I don't? Well then, I guess I'll start an adoption agency. Oh, wait, that'll affect me. Maybe I'll run a dormatory for married couples in college. Oops! That'll affect me too. Maybe then, I'll just become a wedding photographer. Wait, nope, that'll get me also.

Moreover than that, homosexual "marriage" is another example of cultural degeneracy. It affects the culture I live in. Homosexual "marriage" basically destroys motherhood and fatherhood, and hence, destroys family. It says there is nothing important in having both a mother and a father for children.

What you (and others) are made about is that fact that the Court has protected a minority from the will of some people (who you will wrongfully consider a majority) to oppress it. You see, DangerMouse, it is YOU who wants to assert your tyranny over others, not the Court.

I suppose then that the polygamists and the necrophiliacs and the bestialitsts have similar claims for protection, then?
6.23.2008 1:14pm
DangerMouse:
It's possible that the if the amendment passes, the COurt will say, fine "marriage is between a man and woman," then marriage itself is unconstitutional. The amendment doesn't say anything about marriage being constitutional or required to exist.

What was that I said again? Oh yes: "Homosexual "marriage" basically destroys motherhood and fatherhood, and hence, destroys family."

Once again, you prove me right. I can't believe you're really making these logical mistakes on purpose. Come on, admit it. You're a parody, right?
6.23.2008 1:17pm
David Schwartz (mail):
jrose:

First, the wording of the amendment strongly suggests that it applies to all marriages, whenever solemnized. It would include past, present and future marriages whether they took place in California or elsewhere.

Second, you are incorrect about 'ex post facto' only applying to criminal cases. It is true that the 'ex post facto' *clause* in the constitution only applies to criminal cases but the 'ex post facto' clause is only part of the Constitutional prohibition on ex post facto laws. Another part is the "impair the obligations of contracts" clause, which prohibits the type of ex post facto civil laws discussed here.
6.23.2008 1:26pm
Per Son:
How does homosexual marriage impact the following any more than general non-discrimination laws:

I don't? Well then, I guess I'll start an adoption agency. Oh, wait, that'll affect me. Maybe I'll run a dormatory for married couples in college. Oops! That'll affect me too. Maybe then, I'll just become a wedding photographer. Wait, nope, that'll get me also.

Whether there is gay marriage or not, a law barring discrimination against gay people (a type of law that has been passed all over the country) would still apply. The case about Catholic Charities is always interesting, because they never forbade gay adoptions until the Mass. Supreme Court decided in favor of gay marriage. Interesting timing, eh?

As for what hurts families, lots of things do. Poverty and hunger impact families. Parents who work long hours impact families.

Lastly, how does gay marriage impact my relationship with my parents?
6.23.2008 1:26pm
jrose:
You see 5 justices finding a compelling government interest in taking away the right to marry from same sex couples in California?

In Wilson v Ake, a federal district court applied rational-basis review. So did another federal district court in Smelt, although the 9th Circuit Corut of Appeals vacated the decision on the grounds that California courts should have the first say.
6.23.2008 1:37pm
Roger Schlafly (www):
MPP, I did not say that contracts are somehow weaker when they are made with the knowledge that the law might change. I am saying that all those who enter a same-sex marriage contract are doing so with the understanding that a Nov. election may terminate the contract. If they want their contract to survive the Nov. election, then they have the opportunity to get a domestic partnership. If they choose not to get a domestic partnership, then they are voluntarily agreeing to get their contract terminated in Nov, if the vote goes that way.

People often sign contracts that allow external events to terminate the contract. It would really be wrong for a court to extend a contract when it is supposed to be terminated.
6.23.2008 1:39pm
jrose:
First, the wording of the amendment strongly suggests that it applies to all marriages, whenever solemnized

Maybe so. But it's vague enough that litigation after the vote, rather than a pre-vote facial challenge, will decide the issue.

Another part is the "impair the obligations of contracts" clause, which prohibits the type of ex post facto civil laws discussed here

I suspect marriage will be viewed as a public grant rather than a contract in this context.
6.23.2008 1:54pm
Parenthetical:
Roger Schlafly:

I am saying that all those who enter a same-sex marriage contract are doing so with the understanding that a Nov. election may terminate the contract. * * * People often sign contracts that allow external events to terminate the contract. It would really be wrong for a court to extend a contract when it is supposed to be terminated.


There are provisions for terminating a marriage contract: principally death or a divorce decree. Indeed, marriage is an unusual contract in that the parties cannot terminate it. As long as the parties survive, only courts may do so.

Should the measure pass, the courts may void the existing marriages. I can't imagine that they would do so because the parties' reliance on the contract was tenuous. Certainly there is no provision in these marriages that they are tentative.
6.23.2008 2:25pm
SteveW:
If I were on the California court, I would say that if the amendment is retroactive (terminating same sex marriages entered into before adoption of the amendment), then it is a revision. Otherwise, I would say it is an amendment.

It seems to me that if the amendment is not retroactive, then there is an interesting equal protection issue. Isn't there a special equal protection rule for discrimination based on grandfathered status that involves a fundamental right?
6.23.2008 2:37pm
DangerMouse:
Isn't there a special equal protection rule for discrimination based on grandfathered status that involves a fundamental right?

If the Amendment passes, homosexual "marriage" is no longer a "fundamental" right under the California Constitution.

Live by the sword, die by the sword.
6.23.2008 2:43pm
SteveW:

If the Amendment passes, homosexual "marriage" is no longer a "fundamental" right under the California Constitution.
--said DangerMouse


But marriage is a fundamental right under the federal constitution. If the amendment passes and is not retroactive, then the test to determine if a marriage is valid will be different for the group of people who married before the amendment than for the group who married after the amendment.
6.23.2008 3:01pm
DangerMouse:
But marriage is a fundamental right under the federal constitution.

Right. Marriage is a fundamental right under the federal constitution. Fake, so-called homosexual "marriage" is not.

Unless you can point to me the Supreme Court case which says homosexual "marriage" is a federal right?
6.23.2008 3:36pm
AngelSong (mail):
Just an interesting thought because I'm bored at work on Monday afternoon. It seems to me that a lot of these hysterical rants that involve the Court "creating" a new right are based upon the premise that "gay marriage" is a new and distinct institution that stands separate from "marriage". Another way of reading that would be that marriage is inherently and fundamentally a union of a man and a woman, so that "gay marriage" is inherently and fundamentally an institution that is similar but distinct. Sort of like the difference between a "bear" and a "koala bear" or "spaghetti" and "spaghetti squash".
Then you have the Court's holding, which seems to say that "marriage" is an institution that is inherently and fundamentally a union of two persons regardless of gender, so that "straight" and "gay" are just adjectival modifiers of the same institution. Sort of like the "red" ball and the "blue" ball.
So which understanding would the constitutional amendment actually address? Does it say that "marriage" is a distinct institution separate and apart from "gay marriage" (which will continue to exist albeit perhaps not with legal recognition)? Or does it say that "marriage" is an institution for which discrimination against a certain class is acceptable?
6.23.2008 3:45pm
Clayton E. Cramer (mail) (www):

Then you have the Court's holding, which seems to say that "marriage" is an institution that is inherently and fundamentally a union of two persons regardless of gender, so that "straight" and "gay" are just adjectival modifiers of the same institution. Sort of like the "red" ball and the "blue" ball.
Yes, it isn't like there has ever been a universally recognized definition that "marriage" means "opposite sexes."

I remember some years ago in Southern California, one of the local governments passed an antidiscrimination statute with respect to sexual orientation--and this wasn't a particularly liberal place. In no time at all, a referendum was placed on the next ballot to overturn this--and the courts intervened, prohibiting it from even coming to a vote. The people weren't even given a chance to vote on it.

If there is anything that best typifies homosexuality's attitude about government, it is the totalitarian fear of the masses.
6.23.2008 3:50pm
Clayton E. Cramer (mail) (www):

Doesn't this ultimately end up in the federal Supreme Court anyway? Based on Romer v. Evans, it seems clear that a state constitutional amendment can be reviewed by the Supreme Court. This amendment would be a restriction on the right to marriage, which is subject to strict scrutiny. Guess it could pass strict scrutiny, but that seems doubtful.
It is unfortunate that no one wants to look at the enormous arrogance of the Romer decision. On one side, a majority of the voters of Colorado voted to amend their state constitution, limiting the power of the government.

On the other side, a majority of nine unelected judges, none of them residents of, or voters in the state of Colorado, decided that there was no rational basis for that constitutional amendment limiting governmental power.

You know, if we were talking about an argument between several judges in D.C., and a few dozen state legislators, you might argue that perhaps those judges were more rational than a somewhat larger group of state legislators. It is certainly plausible (even likely) that any given Supreme Court justice is more intelligent and sensible than any given member of a state legislature. Maybe even enough more so that a majority of the Supreme Court is more rational and intelligent than a majority of a state legislature.

But when a majority of nine judges decides that it is smarter and more sensible than a majority of more than a million people--it just shows the arrogance of the judiciary.
6.23.2008 3:59pm
AngelSong (mail):
Actually, the most basic definition of "marriage" is simply a union. (As an aside, it would be an interesting etymological study as to whether the root has a matrimonial connotation which has broadened from common use or the common matrimonial connotation represents a narrowing of the original idea -- regardless, the evolution of meaning should not be an overly shocking idea or phenomenon). But that still leaves us with the basic question of what is the effect of an anti-discrimination law or ruling? Is a new institution created (women's basketball) or is an old institution extended (basketball that can now be played by both men and women)? As for the idea of universal recognition, isn't the whole point of most anti-discriminatory acts that the universal recognition has been a bit, well, non-universal?
6.23.2008 4:02pm
Clayton E. Cramer (mail) (www):

Actually, the most basic definition of "marriage" is simply a union.
And that's why you have lots of examples of same sex marriages from multiple cultures, right?

This all boils down to this: homosexuals want to feel normal, something that will never happen, so they use their control of the judiciary to force everyone else to pretend that they are normal.

Those signs that said, "recriminalize sodomy" that were visible in San Francisco a few days ago--those should worry homosexuals. But this insane need to feel normal is going to take an idea that was pretty well dead, and bring it back to life.
6.23.2008 4:09pm
AngelSong (mail):

But when a majority of nine judges decides that it is smarter and more sensible than a majority of more than a million people--it just shows the arrogance of the judiciary.

I know that this is just more hysterical rhetoric, but it brings to mind an interesting question. How many of those more than a million people do you think have read anything even remotely scholarly in the last year? Heck, how many of them have read anything that could be described as non-fiction literature in the last year? How many of those more than a million people can recite to you entire plot lines of Desperate Housewives, ER, American Idol, etc? I mean, when we have an entire show devoted to showing that the average American is not smarter than an elementary student! And yet the idea that the members of the judiciary, who actually do regularly use words with more than three syllables, who probably read more than they watch TV, might be a bit more intelligent when it comes to legal interpretation than the average voter is somehow arrogant???
6.23.2008 4:09pm
AngelSong (mail):

And that's why you have lots of examples of same sex marriages from multiple cultures, right?

Same sex? At least those are in the same species! I saw an interesting show last night that featured a "marriage" of garlic and caramel in a sauce for fish!
6.23.2008 4:11pm
Clayton E. Cramer (mail) (www):

I am saying that all those who enter a same-sex marriage contract are doing so with the understanding that a Nov. election may terminate the contract.
Imagine if the ACLU succeeded in having the California Supreme Court rule that it was unlawful to discriminate against a marriage partner based on their gender, age, or appearance. After all, who you marry certainly plays a significant economic role in our society--and why should Jim Smith refuse to marry Gary Johnson, just because Jim doesn't like sex with men? That's just discrimination based on sexual orientation.

The voters of California would understandably respond by putting an initiative on the ballot to declare that no one may be forced to marry against their will. The ACLU would file suit arguing that the fundamental right to marry who you wish would be violated--and then they would point to the large number of marriages that had taken place in the interventing few months.

Homosexuality, individual freedom: pick one.
6.23.2008 4:15pm
Clayton E. Cramer (mail) (www):

I know that this is just more hysterical rhetoric, but it brings to mind an interesting question. How many of those more than a million people do you think have read anything even remotely scholarly in the last year? Heck, how many of them have read anything that could be described as non-fiction literature in the last year?
Probably more than you think. Still, you have made my point: homofascism is about elites telling the majority what to do, how to think, what to accept, and so on.
6.23.2008 4:17pm
Clayton E. Cramer (mail) (www):

First the Court will mandate gay marriage.

Then the Court will force hetero couples to become gay.
That's not likely, simply because homosexuals aren't particularly interested in that, but there is this question: what are the limits of governmental power?

Any government powerful enough to prohibit discrimination against homosexuals is also powerful to require it. Right now, you know that this isn't likely, because homosexuals are so powerful. But you have created a dangerous precedent: that there are no limits to governmental power, and nothing is outside the realm of governmental authority to control in the pretended public interest.

What happens if the majority ever gets in control of the judiciary? Do you worry about the prospect that 3% of the population might suddenly find itself on the losing end? It has happened before (in fact, throughout most of the last few centuries). Homosexuals, in their pursuit of unlimited power over the government, have created a dangerous precedent for when the pendulum swings back.
6.23.2008 4:23pm
AngelSong (mail):

elites telling the majority what to do, how to think, what to accept, and so on

Again, hysterical rhetoric aside, I have to shake my head at the anti-intellectualism that seems to be running rampant in this country. Damn right I'm smarter than a fifth grader, and proud of it! Since when is it a disgraceful, shameful thing to actually have an education and have a mind and actually know how to use it? Maybe Kurt Vonnegutt really was quite prescient...
6.23.2008 4:24pm
David Schwartz (mail):
But when a majority of nine judges decides that it is smarter and more sensible than a majority of more than a million people--it just shows the arrogance of the judiciary.
Are you arguing that we should bring back segregation? In fact, this is precisely the role of the judiciary, to prevent the majority from using the government to preferentially grant them benefits and deny them to the minority.
6.23.2008 4:26pm
Burt Likko (mail) (www):
If you read the Marriage Cases decision closely, you'll see that in the court's recital of the history of the legal institution of marriage, it describes how the understanding of marriage has moved away from the concept of a contract. One is left with the impression that marriage, as the law defines it today, is less of contract than employment (employment still retains vestiges of its contractual origins despite all the legislative and common-law tinkering with the terms of the contracts). Marriage under California law pays only the barest amount of lip service to the idea that parties "contract" to marry.

I say this because if the court takes the concept of marriage out of the realm of contracts completely, the Contracts Clause would not apply to save an existing same-sex marriage in the event that the initiative passes.

One thing that is still in marriage law, though, is mutual and free consent. So I can't take Clayton E. Cramer's objection seriously -- a marriage can already be voided (not just terminated with a divorce but rendered a nullity) under California law if it is demonstrated that either party's consent was not freely given.
6.23.2008 4:29pm
Skorri:
"Homofascism." ... Is there any productive way to respond to anything that contains a term like that? I really don't think so.

The idea of The Vast Homo Conspiracy never fails to crack me up. How on earth did those power-mad gays manage to take over all of our institutional structures with no one (save a few Volokh commenters) noticing?
6.23.2008 4:46pm
Oren:
Any government powerful enough to prohibit discrimination against homosexuals is also powerful to require it. Right now, you know that this isn't likely, because homosexuals are so powerful. But you have created a dangerous precedent: that there are no limits to governmental power, and nothing is outside the realm of governmental authority to control in the pretended public interest.
Perhaps we could have some sort of construct of freedom that makes it clear what is and is not in the realm of government authority -- something like "ordered liberty" that puts intimate associations squarely in the hands of the individual. If you prefer old-school:

Without doubt, [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. (J. McReynolds, 1923)
6.23.2008 4:58pm
AngelSong (mail):
Ah yes, the latest viral video hit on Yahoo! headlines: The cheese alarm clock. Videos of a slice of processed cheese being thrown onto the face of sleeping people. Yet more proof of the exceptional capabilities for higher reasoning of the general public.
6.23.2008 4:59pm
DangerMouse:
Yet more proof of the exceptional capabilities for higher reasoning of the general public.

Why don't you just come out and say you are against Democracy? And don't pretend that you'd be satisfied with Representative Democracy, because you know very well that legislators are morons too. People complain that it's unfair to call the Courts elitist, or that they're our Masters, etc. But then when you crap all over the ability of the People to be Sovereign, why complain about the Court?

Or maybe you prefer a Monarchy? Or Oligarchy? Perhaps a Theocracy, with Obama as your Messiah?
6.23.2008 5:39pm
Elais:
DangerMouse


I suppose then that the polygamists and the necrophiliacs and the bestialitsts have similar claims for protection, then?



What does that have anything to do with it? It's a worthless arguement. You only make it so you can equate homosexuality with beastiality and that doesn't reflect well on your intelligence.
6.23.2008 5:39pm
KWC (mail):
Oh, yes, Clayton, gay people just want to feel normal. How strange! Fortunately, they will always be more normal than you. You have spent too much time on your one-man battle with Amazon's freedom to sell whatever books it wants.

Freedom, Clayton's value judgments about what is worth selling; pick one.
6.23.2008 5:47pm
Clayton E. Cramer (mail) (www):


Again, hysterical rhetoric aside, I have to shake my head at the anti-intellectualism that seems to be running rampant in this country. Damn right I'm smarter than a fifth grader, and proud of it! Since when is it a disgraceful, shameful thing to actually have an education and have a mind and actually know how to use it?
And you assume that anyone that disagrees with you is ignorant, and should therefore be overridden?
6.23.2008 5:49pm
Clayton E. Cramer (mail) (www):


But when a majority of nine judges decides that it is smarter and more sensible than a majority of more than a million people--it just shows the arrogance of the judiciary.

Are you arguing that we should bring back segregation? In fact, this is precisely the role of the judiciary, to prevent the majority from using the government to preferentially grant them benefits and deny them to the minority.
In case you missed it, the 14th Amendment was passed specifically to limit the authority of state governments to restrict the equal rights of blacks. While the language is more broadly worded than simply about race, that was clearly the intent--to limit the authority of the state governments in this area. There was no intent that the 14th Amendment would do the same for homosexuals.
6.23.2008 5:51pm
Clayton E. Cramer (mail) (www):

One thing that is still in marriage law, though, is mutual and free consent. So I can't take Clayton E. Cramer's objection seriously -- a marriage can already be voided (not just terminated with a divorce but rendered a nullity) under California law if it is demonstrated that either party's consent was not freely given.
You seem to have missed my point: "marriage" has a certain meaning. Homosexuals didn't like that meaning. They didn't like that the majority wrote that meaning into law. So they decided that they had a higher morality to impose.

So why are you so sure that this notion of freely entering marriage can't be "improved" as well?
6.23.2008 5:53pm
Clayton E. Cramer (mail) (www):



I suppose then that the polygamists and the necrophiliacs and the bestialitsts have similar claims for protection, then?


What does that have anything to do with it? It's a worthless arguement. You only make it so you can equate homosexuality with beastiality and that doesn't reflect well on your intelligence.
His point is that once you have accepted the idea that the majority is not allowed to write laws that reflect majority morality in defining marriage as "one man, one woman," why are they allowed to write laws that restrict other forms of sexual expression?

You think homosexuality is okay, but necrophilia and bestiality are wrong. What makes them wrong? That you find them "icky"?
6.23.2008 5:55pm
Clayton E. Cramer (mail) (www):

"Homofascism." ... Is there any productive way to respond to anything that contains a term like that? I really don't think so.

The idea of The Vast Homo Conspiracy never fails to crack me up.
Fascism doesn't require a vast conspiracy. It just requires power-mad sorts to use that power to impose their will on others, such as the antidiscrimination laws destroying the right of conscience.

Let's turn this around: imagine if California's Supreme Court had decided that the people of California didn't have the legal authority to create "civil unions" (which they did at the same time they defined marriage as "one man, one woman"). I'm sure that you would be sputtering up a storm right now.
6.23.2008 5:58pm
Clayton E. Cramer (mail) (www):

Oh, yes, Clayton, gay people just want to feel normal. How strange! Fortunately, they will always be more normal than you. You have spent too much time on your one-man battle with Amazon's freedom to sell whatever books it wants.

Freedom, Clayton's value judgments about what is worth selling; pick one.
In case you wonder what this guy is complaining about: I refuse to buy anything from Amazon.com because they insist on selling a book that advocates molesting little boys. And now a homosexual is taking me to task for encouraging such a boycott. Just remember that the next time a homosexual argues that child molestation and homosexuality have nothing in common--and here's KWC arguing that boycotting Amazon.com for this reason is a form of homophobia.
6.23.2008 6:01pm
Clayton E. Cramer (mail) (www):
Oren writes:


Any government powerful enough to prohibit discrimination against homosexuals is also powerful to require it. Right now, you know that this isn't likely, because homosexuals are so powerful. But you have created a dangerous precedent: that there are no limits to governmental power, and nothing is outside the realm of governmental authority to control in the pretended public interest.



Perhaps we could have some sort of construct of freedom that makes it clear what is and is not in the realm of government authority -- something like "ordered liberty" that puts intimate associations squarely in the hands of the individual. If you prefer old-school:



Without doubt, [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. (J. McReynolds, 1923)


So, Oren, are you saying that Justice McReynolds was arguing that same-sex marriage was one of the "privileges long recognized at common law"? Even homosexual sex wasn't recognized as such.
6.23.2008 6:04pm
AngelSong (mail):

And you assume that anyone that disagrees with you is ignorant, and should therefore be overridden?

Not at all, but the idea that a million minds are inherently more capable and more intelligent than nine is flawed...
6.23.2008 6:10pm
AngelSong (mail):

You seem to have missed my point: "marriage" has a certain meaning. Homosexuals didn't like that meaning. They didn't like that the majority wrote that meaning into law. So they decided that they had a higher morality to impose.

Since when do words have a set unchanging meaning? Language is constantly evolving, constantly changing, constantly developing as the society and culture that actually uses the language constantly evolves, changes, and develops. Earlier you seemed to be arguing that the Court created a new institution of "homosexual marriage". Now you seem to be arguing that the Court simply expanded the definition. Which one is it?
6.23.2008 6:16pm
Clayton E. Cramer (mail) (www):


And you assume that anyone that disagrees with you is ignorant, and should therefore be overridden?


Not at all, but the idea that a million minds are inherently more capable and more intelligent than nine is flawed...
You seem to be saying that nine Supreme Court justices are more capable than a million other minds. I guess that means that a Supreme Court justice is 111,111 times more capable than the average Colorado voter.
6.23.2008 6:23pm
AngelSong (mail):

Why don't you just come out and say you are against Democracy? And don't pretend that you'd be satisfied with Representative Democracy, because you know very well that legislators are morons too. People complain that it's unfair to call the Courts elitist, or that they're our Masters, etc. But then when you crap all over the ability of the People to be Sovereign, why complain about the Court?

I'm not necessarily against democracy per se, although I must admit that I would sleep a bit easier if I could know that certain vermin with alarmist tendencies either were restricted in or chose not to exercise their rights to vote! I am very much against this zeitgeist that attempts to elevate the so-called "common man", that exalts mediocrity or even downright incompetence, and that simultaneously disavows and derogates that least sparks of intelligence and accomplishment (with the exception of athletic prowess). You say that you want the People to be Sovereign - do you know the People?
6.23.2008 6:24pm
Clayton E. Cramer (mail) (www):

Since when do words have a set unchanging meaning? Language is constantly evolving, constantly changing, constantly developing as the society and culture that actually uses the language constantly evolves, changes, and develops.
If the society and culture was actually "constantly evolving" in the way that you describe, then the majority would agree with you. But they don't. So your tyrants in black have to do your bidding for you.
6.23.2008 6:24pm
Clayton E. Cramer (mail) (www):

You say that you want the People to be Sovereign - do you know the People?
Yup. I agree with H.L. Mencken's description of democracy: jackals leading jackasses. The jackasses, in my experience, are too busy screwing up their own lives to have any energy left over to meddle in the lives of others.

Liberals, on the other hand, have plenty of time to be running the lives of others, and do so.
6.23.2008 6:26pm
AngelSong (mail):

You seem to be saying that nine Supreme Court justices are more capable than a million other minds. I guess that means that a Supreme Court justice is 111,111 times more capable than the average Colorado voter.

Are you for real? I don't know that I've ever seen someone create such a plethora of strawmen with such alacrity quite like you before!
6.23.2008 6:28pm
AngelSong (mail):

If the society and culture was actually "constantly evolving" in the way that you describe, then the majority would agree with you. But they don't. So your tyrants in black have to do your bidding for you.

False premise leads to false conclusion (then of course add some hysterical rhetoric to distract)! You really are racking up your share of faulty logic on this thread.
6.23.2008 6:33pm
Clayton E. Cramer (mail) (www):

Are you for real? I don't know that I've ever seen someone create such a plethora of strawmen with such alacrity quite like you before!
You are the one arguing that a majority of nine lawyers is smarter and more capable than millions of voters. Argue if you want that the Constitution takes precedence over democracy. I won't disagree, when the Constitution has a clear statement. But there is no way to argue that the 14th Amendment was ever intended to grant homosexuality the status that Romer gave it. The 14th Amendment didn't even grant a right to engage in private homosexual sex, much less the extraordinary equal protection claim that Romer imagined.
6.23.2008 6:35pm
Clayton E. Cramer (mail) (www):

False premise leads to false conclusion (then of course add some hysterical rhetoric to distract)! You really are racking up your share of faulty logic on this thread.
Please explain exactly in what way the premise is false. Your assertion doesn't make it so.
6.23.2008 6:36pm
Clayton E. Cramer (mail) (www):

Not at all, but the idea that a million minds are inherently more capable and more intelligent than nine is flawed...
So you agree that we can just dispense with this idiotic election foolishness.... After all, the graduates of law schools should make all the decisions. Think of the money we are going to save by scrapping this silly electoral process.
6.23.2008 6:37pm
AngelSong (mail):
Fortunately it is almost 6:00 and time to go home. I have tired of wrestling with a pig for today at least. Please feel free to continue your hysterical rhetoric and faulty logic and rant and rave and gnash your teeth. I'm going to head home and give thanks for the black-robed tyrants and play with mousetraps :)
6.23.2008 6:57pm
Russ (mail):
But marriage is a fundamental right under the federal constitution.

Funny...I've read the Constitution and haven't found the word "marriage" anywhere in it. Could someone please point me to the Article that contains it?
6.23.2008 7:28pm
Kazinski:
Angelsong,


Not at all, but the idea that a million minds are inherently more capable and more intelligent than nine is flawed...


Its not flawed at all, its the whole basis of the Iowa markets, community baseball projections, and even something called the free market. The wisdom of crowds has been proven time and again. There is nothing wrong with having strong opinions, but there is a colossal element of stupidity in someone, even a genius, thinking their own opinions are infallible.
6.23.2008 7:30pm
Russ (mail):
AngelSong,

Congratulations on showing exactly why most people detest both lawyers and elites. The "I'm smarter and better able to decide how society should run than you b/c I've been to a school" argument is exactly why your hated "anti-intellectualism" is rampant.

Most of those folks you so readily dismiss for being stupid have probably the same opinion of you. Please further elucidate why the nine judges, in a republic, are so much better to deicde fundamental societal questions than the people themselves.

You have a caricature based on what is playing on TV. I thought intelligent folks were supposed to observe the world and the people closest to them, not listen to the inane ramblings of popular media culture.

Do you get claustrophic inside that closed mind of yours?
6.23.2008 7:33pm
Hapag Lloyd (mail):
What seems to baffle the Religious Right is that WE DON'T LIVE IN A DIRECT DEMOCRACY!!

Instead, we live in a Constitutional Representative Democracy. That means that we elect representatives through the democratic process, and that the representatives create legislation on our behalf. It also means that we have a judiciary whose JOB IT IS to invalidate any law that violates the Constitution. Generally speaking, the constitution is the Highest Law of the Land. The great American idea is to enshrine our principles into the Constitution (free speech, freedom of religion, equal protection, due process, right to vote), and then PLACE THE CONSTITUTION OUT OF REACH OF THE SIMPLE MAJORITY. You see, it is important that a constitution NOT be easily tinkered with by a simple majority. A simple majority, otherwise, can take away any and all rights from a minority class, i.e. Jews don't have a right to an attorney, Blacks can't own property, Latinos can't vote. Or, as in this situation, same sex couples can't enter a civil marriage.

The Constitution is there to PROTECT THE MINORITY from the tyrrany of the majority. And when the majority can amend the constitution (or "revise it") with a simple 50.1% of the vote, then how can the constitution protect any minority?

All of this said, the People do (and should) reserve to themselves the right to amend the constitution with a super-majority (usually 2/3rds).
6.23.2008 7:53pm
KWC (mail):
Clayton,

I'm not accusing you of homophobia, but rather of freespeech-phobia.

You can't be taken seriously. You actually equate gays with pedophilia. Sorry, bro, but pedophiliacs are just as often (if not more often) opposite-sex than same-sex?

I must say. Your obsession with gays and pedofilia is quite revealing.
6.23.2008 8:18pm
LM (mail):
AngelSong,

I have tired of wrestling with a pig for today at least.

Uncalled for.
6.23.2008 8:21pm
MPP (mail):
No one's responded:
Actually, it makes perfect sense.

Something that people fail to point out is that in a true democracy to pass an initiative it should require a majority of the people. IT DOESN'T here. It only requires a majority of the VOTERS. That's a minority of the population. So the argument that "the people want x" or the "people want y" is bogus. The people, as it were, DON'T CARE and don't vote.

What's more, the gay marriage initiative is only at risk becuase the people who vehemently oppose are more likely to vote than the people who are indifferent (i.e., don't care one way or another about gay marriage). The latter group, the live and let lives, aren't affected directly, so their incentive to vote is lower. So, in the end, it's a MINORITY of the population who would be imposing its will on the rest of us (and more directly, on a super minority population--gay people).

Any response?
6.23.2008 8:23pm
Hapag Lloyd (mail):
You are right MPP. In a presidential general election, in California, only about 52% of the Eligible Voters actually vote. That means it would take just over 26% of the eligible voters to pass a law, or in this context, a constitutional amendment (certainly NOT a Majority of the citizenry).
6.23.2008 8:29pm
Bruce Hayden (mail) (www):
What seems to baffle the Religious Right is that WE DON'T LIVE IN A DIRECT DEMOCRACY!!
Except, esp. out west, there was an inherent distrust of the elites, and so direct democracy was left as a saftey valve (except, in the case of Romer, where our votes were ignored).
Instead, we live in a Constitutional Representative Democracy. That means that we elect representatives through the democratic process, and that the representatives create legislation on our behalf. It also means that we have a judiciary whose JOB IT IS to invalidate any law that violatesthe Constitution.
Of course, in this case, it pretty much started at the judiciary acting mostly on its own here, notably the least democratic of the branches of government.

You may have seen this before:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
What you seem to be suggesting is that the consent of those dead mostly at least 100 years in the case of CA should trump the consent of those being governed today. What is being discussed here is the consent of the governed at its most basic level, and their right to change the laws (and constitution) that they are governed under.
6.23.2008 8:33pm
Hapag Lloyd (mail):
Bruce,

I have a question and a comment. First the question:

What did you mean when you wrote:


Of course, in this case, it pretty much started at the judiciary acting mostly on its own here, notably the least democratic of the branches of government.


What pretty much started at the judiciary? Certainly you would not argue that equal protection of the laws started at the judiciary. Or that it is the judiciary who gave itself the job of protecting the minority from the whims and prejudices of the majority. Those things derive from the constitution. Don't you agree?

Now to my comment: You seem to make the point of the Marriage Equality folks that this change in the law is a change in the basic nature of government. I admitted in my first post that the People rightfully reserve that right to themselves. But they do so in the form and process of a Revision; a process that takes greater deliberation, more time, and more votes.

All the Marriage Equality people seem to be saying is that this Initiative is a Revision that the People can make, but by a more deliberative process.
6.23.2008 8:47pm
Dave N (mail):
MPP,

By your logic, we do not have a majority system of government at all--since we have NEVER had a President elected with a majority of the actual vote (as opposed to those voting) and I am including FDR in 1936, LBJ in 1964, and Nixon in 1972.

Likewise, I am unaware of a single member of Congress (except perhaps one running unopposed) who has actually received a majority of the eligible votes in his or her district.

So we aren't even in a representative democracy under your definition--or does your point only count for initiatives and referendums?
6.23.2008 9:12pm
MPP (mail):
Dave N,

You are right! I hadn't thought about the representative aspect.

But the point still stands. All this about the "people's will" or the court imposing its will "on the people" or that the "people have spoken" is such nonsense. The people haven't spoken, because as Hapag explained only half of people "speak" at all and you only need half of that to get an amendment passed. This means that a quarter of the populace in this state decides what laws bind the other 75%, i.e., the actually majority of Californians.

It's a bit frightening.
6.23.2008 9:33pm
Russ (mail):
Hapag Lloyd,

Yes, we do live in a republic. What we object to is a judiciary writing in rights that aren't outlined, nor were ever intended. Our elected representatives are supposed to make that decision, and if you want a certain right written in, then convince enough citizens to vote for reps that believe the same thing.

The Judiciary exists to apply written law, not write that law themselves.
6.23.2008 9:35pm
Russ (mail):
MPP,

Your apathy regarding voting should not affect the laws written in. If it's that important, then get off your lazy rear end and vote. Otherwise, it IS the majority.
6.23.2008 9:36pm
LM (mail):
Clayton E. Cramer,

What happens if the majority ever gets in control of the judiciary?

You mean like a majority Democratic SCOTUS or California Supreme Court? It's been so long, I don't remember.
6.23.2008 9:40pm
Rich Rostrom (mail):
The language of the CA Constitution seems pretty clear to me.

The people may, by petition, propose specific changes to the language of the Constitution: amendments, to be voted on. This is the initiative process.

Or, the legislature may propose amendments to be voted on.

Or, the legislature may call for a constitutional convention, whose members, elected by the people, will then rewrite the Constition: a revision, to be voted on.

The effort to suppress the proposed amendment by labeling it a "revision" is the sort of cheap legal pettifoggery that elites rely on these days to prevent the people from interfering.
6.23.2008 10:05pm
Hapag Lloyd (mail):
Russ,

Equality under the law IS in the constitution. Here, the court has observed that it is unconstitutional FOR THE STATE to treat gay individuals and couples differently from how it treats heterosexual indiviudals and couples.

Were you upset when the court held that laws against inter-racial marriages were unconstitutional because the Court was "writing" new law? Of course not! But at the time, inter-racial marriages were against the law. And most people did not approve of them.

Isn't your objection just based on the fact that, on this issue, you disagree with the court? And not really because the court has done something wrong or "anti-democratic."
6.23.2008 10:05pm
Oren:
So, Oren, are you saying that Justice McReynolds was arguing that same-sex marriage was one of the "privileges long recognized at common law"? Even homosexual sex wasn't recognized as such.
I don't recall making that argument.

All I meant to offer was a principled framework to rebut your claim that this decision (or any other decision that dares to take an expansive view of personal liberty) necessarily requires abdicating huge swaths of freedom to the whim of the courts. If we accept that the government has no right to interfere withing a sphere of personal liberty, then we ensure that freedom for everyone.
6.23.2008 10:21pm
Russ (mail):
The 14th amendment was never intended to give homosexuals the right to marry each other. If it were, than why would a polygamist not have the right to marry two women? Why would I not have the right to marry my brother so that I could get the tax benefits associated?

If gay marriage is so popular and so right, then you would have no problem, I'm sure, with the people voting on it.

BTW, the 14th amendment was intended specifically to rectify discrimination against African Americans, and was passed by the people through the constitutional process, not imposed on the people by judicial fiat. That's the way it's supposed to work.
6.23.2008 11:12pm
ReaderY:
The California Constitution, in plain language, clearly distinguished between measures calling for a constitutional convention, which it describes as "revisions", and measures making specific changes to the constitution, which it describes as "amendents". The "California Supreme Court", apparently unable to read the state sonstitution's actual language, decided to label amendments "revisions" for no other reason than that it happened not to like them.

Literacy is in important skill in any government official, particularly in a lawyer. Californians would do well to make sure that judicial offices are occupied by literate people and should ensure that judificial officers have the ability to read, and are willing to use that ability in the conduct of their office.
6.23.2008 11:34pm
Colin (mail):
Clayton Cramer: "Fascism doesn't require a vast conspiracy. It just requires power-mad sorts to use that power to impose their will on others...."

Clayton Cramer a week earlier: "It is increasingly clear that homosexuals aren't prepared to live and let live. Perhaps the only option left will be to force them all back into the closet."
6.24.2008 12:08am
MPP (mail):
Russ,

That makes no sense. First off, I do vote. Second, it is not the majority. No matter how you slice it. You cannot make the statement that the majority of Californians wanted a given iniative to pass. You can say a majority of voters did; that's fine. There's a huge difference. Just because you call an orange an apple doesn't make it one.
6.24.2008 12:19am
Ryan Waxx (mail):
No matter how YOU slice it, MPP - your objection to the idea of voters representing the majority either applies to ALL votes, or none at all. You do not get to pick and choose where to apply the reasoning based on what result you wish to achieve at the present moment.

So you can either try and delegitimize people voting for something you dislike because not every person in the state voted... and by the same logic delegitimize democracy as presently practiced everywhere... or you can abandon a clearly losing line of argument.
6.24.2008 4:32am
Randy R. (mail):
Dangermouse: "Homosexual "marriage" basically destroys motherhood and fatherhood, and hence, destroys family."

Since SSM has been allowed for several years in Canada, The Netherlands, Belgium and Spain, please explain how motherhood, fatherhood and the family have been destroyed in those countries.

Oh that's, right, we won't see the effects until decades from now, right?
6.24.2008 7:15am
jrose:
But marriage is a fundamental right under the federal constitution.
Funny...I've read the Constitution and haven't found the word "marriage" anywhere in it. Could someone please point me to the Article that contains it?

14th Amendment, Equal Protection Clause.
6.24.2008 8:01am
SteveW:

Funny...I've read the Constitution and haven't found the word "marriage" anywhere in it. Could someone please point me to the Article that contains it?


So far as I know, Turner v. Safley (1987) (right to marry for prison inmates) is the latest case do discuss the issue.
6.24.2008 8:31am
nutbump (mail):

Hapag Lloyd:Equality under the law IS in the constitution. Here, the court has observed that it is unconstitutional FOR THE STATE to treat gay individuals and couples differently from how it treats heterosexual indiviudals and couples.

Court has made a mistake, in its eagerness to get ahead of the common sense.
No one is discriminating against gays because they are gays. There is segregation based on abilities of on gay couples to procreate, so such segregation is perfectly legal and constitutional. Similar to separation between men and women in sex and child bearing related issues. Why don't you question a constitutionality of women only gynecologists?
Gay couples as a class can't procreate and provide optimal environment for rearing children, heterosexual couples can, so homosexual and heterosexual couples are different. That is why gays can't and should not be married, but get equal right with domestic partnership and civil unions.
Comparison of gay marriage with race discrimination is exceptionally stupid. Interracial couples and intraracial couples have absolutely the same abilities as far as marriage, sex and procreation concern, so discrimination was strictly based on the race and that was unconstitutional.
6.24.2008 9:01am
shawn-non-anonymous:
Rich Rostrom opines:


The effort to suppress the proposed amendment by labeling it a "revision" is the sort of cheap legal pettifoggery that elites rely on these days to prevent the people from interfering.

(emphasis mine)

Those darn elites with their superior vocabularies!
6.24.2008 10:44am
shawn-non-anonymous:
MPP says:


The people haven't spoken, because as Hapag explained only half of people "speak" at all and you only need half of that to get an amendment passed.


Not voting is a "vote" in the sense that the person has chosen to let others decide for them. If there was a special election where the anti-marriage amendment was the only thing on the ballot and 75% of Americans stayed home that day, we can safely say that 75% of Americans don't care enough, one way or the other, that the inconvenience of voting would be worth it for them.

When Florida votes this November to strengthen it's anti-gay laws by writing one into the constitution, if it passes, I think it's is fair to say that those who did not vote approved of that outcome. The same if it fails.

The people do "speak" when they remain silent.
6.24.2008 10:55am
AngelSong (mail):

No one is discriminating against gays because they are gays. There is segregation based on abilities of on gay couples to procreate, so such segregation is perfectly legal and constitutional. Similar to separation between men and women in sex and child bearing related issues. Why don't you question a constitutionality of women only gynecologists?
Gay couples as a class can't procreate and provide optimal environment for rearing children, heterosexual couples can, so homosexual and heterosexual couples are different. That is why gays can't and should not be married, but get equal right with domestic partnership and civil unions.

But there are multiple problems with your theory here. First of all, your initial assertion that "No one is discriminating against gays because they are gays" is either disingenuous or naive. While I grant that there may be some people who oppose gay marriage because of some distorted reasoning that marriage should be reserved for procreation, the vast majority of the "no" vote is coming from either a moral objection or the "ick" factor. It's all about what happens between the sheets and not a bit about the resultant offspring or the lack of same.

Secondly, you are mistaken in your assumption that procreation is a fundamental element of marriage as we understand it today. Whether or not you like that particular operational definition is beside the point. Your suggestion that marital segregation occurs on the basis of ability to procreate rather than sexual orientation belies the fact that plenty of couples who are unable to procreate are still allowed to get "married". Unless your argument is that "marriage" should be reserved only for those who are able to (and intend to?) conceive while those who are unable (and unwilling?) to conceive should have "civil unions".

Finally, the idea that penis + vagina = "optimal environment for rearing children" is unsupported and, quite frankly, I would think insulting for anyone who does rear children, regardless of the genders of the partners involved. If one were to conduct an opinion poll among parents with children as to factors to which they attribute their success in child-rearing, I would wager a significant sum of money that their own sex organs wouldn't make the top 10. In fact, if you consider the disastrous results of far too many couplings as evidenced by the need for child welfare and protective services, it would seem to me that the problem in far too many cases is that penis + vagina only is quite insufficient!
6.24.2008 11:07am
MPP (mail):
shawn-non-anonynous, Russ &Ryan Wax:

You are reading more into my statement than is there. I'm not saying that the majority of voters is not a proper measure--obviously, you can't force people to vote and you need some way to effecutate democracy.

I'm saying that when something passes, the statement that "A majority of Californians believe X" or that "the people of California support X" is inaccurate. As a matter of language and fact.

Also, I don't think it's reasonable to read approval or disapproval of a measure into one's failure to vote. If anything, I think that not voting in this particular instance means you are probably okay with gay marriage. Of course, this is purely speculation, but it seems to me (and from people I've talked to) that if you are anti-gay marriage, you will go out and vote "yes" on the amendment. If you are pro-gay marriage but not gay, or indifferent to gay marriage, you have nothing to lose (contrast this to the anti-gay marriage crowd which does feel like it has something to lose or that at least it is being personally affected by the freedom of gays to marry), so you won't make the effort to get out an vote.
6.24.2008 11:18am
Brian G (mail) (www):
There's a shock, a group wanting to stop the people from being able to amend their Constitution. I never saw that coming. Just like I can't see some court agreeing 100% with them.
6.24.2008 11:22am
nutbump (mail):

AngelSong: But there are multiple problems with your theory here

It is not a theory it is fact of life. Homosexual and heterosexual couples are different.
Difference #1 -- Heterosexual couples as a class can procreate while Homosexual couples can't.
Difference #2 -- Heterosexual couples can provide optimal environment to rear children i.e. mother and father while homosexual couples can't.
No matter how hard you try to eliminate those differences you going to fail.
If different couples have different abilities segregation between them is legal and constitutional.
6.24.2008 11:24am
Randy R. (mail):
nutbump: "Gay couples as a class can't procreate and provide optimal environment for rearing children."

Any support for the notion that gays can't provide an optimal environment for rearing children? What is optimal? If true, then why is it the every single major adoption agency and state agency is in favor of allowing gay couples from adopting?

Even if your argument holds water, that gays are not 'optimal', please identify which specific couples are. There are plenty of heterosexual married couples that are not optimal in any sense of the word. There are also plenty of single parents out there who aren't providing optimal child rearing. so what?

And what of gay couples that ARE raising children, either through adoption or otherwise? Isn't it society's best interest to provide the best level of support, and allow the children's parents to be married? How, by preventing their parent's from being married, are you benefiting the children?
6.24.2008 11:43am
Randy R. (mail):
Let me make it very easy for you, nutbump. Consider two possibilities:

Gay couple A: Two men, living in Pennsylvania, adopt a child named X. They are prevented from being married, but have registered for domestic partnership. They have some, but not all, the benefits of marriage.

Gay Couple B: Two men, living in California, adopt a child names Y. They are married.

Please explain to me how Child X is better off then Child Y. Also, explain how society is better off X's parents prohibited from being married vs Y's parents who are.
6.24.2008 11:48am
nutbump (mail):
Optimal means mother and father. No one can intentionally deprive child a right to have or to know mother and father.
Mother and father nothing can be more optimal for child rearing.

Child X is not better or worse of Child Y. Couple X is different from couple Y and their relationship can't have the same name and regulated by the same law.
6.24.2008 12:15pm
Parenthetical:
ReaderY wrote:

The California Constitution, in plain language, clearly distinguished between measures calling for a constitutional convention, which it describes as "revisions" . . .

No it doesn't. "[T]he Constitution itself does not specifically distinguish between revision and amendment." Amador Valley v. Board of Equalization (1978) 22 Cal.3d 208 [upholding Proposition 13]. As an aside, revisions don't require a constitutional convention (but does require, in the alternative, the legislature to act).

The "California Supreme Court", apparently unable to read the state sonstitution's actual language, decided to label amendments "revisions" for no other reason than that it happened not to like them.

Speaking of literacy, I wonder if you even read Prof. Volokh's post... for that matter what the California Supreme Court held in Raven or and the handful of other cases where an amendment was rejected as a revision? You clearly haven't read the Calif. Constitution.

I'd argue that People v. Frierson, (1979) 25 Cal.3d 142, is the case most on point here. In February 1972, the Calif. Supreme Court held that the death penalty violated the Calif. constitution's "cruel and unusual punishment" clause. In November 1972, the electorate amended the constitution to exempt the death penalty from that clause. In Frierson, the court found the defendant's claim of an prohibited constitutional "revision" so unpersuasive that the opinion devoted only half a page to dismissing the claim. It wasn't even a close call.

Before you erect a straw man to vilify the court, you should really know what you're talking about.
6.24.2008 12:18pm
Hapag Lloyd (mail):
When the State treats groups differently, it must have a reason for doing so. According to Nutbump, the reason to prevent gays from getting married is because they can't have children.

First, this doesn't make sense to me. This is a good reason, perhaps, to ALLOW heterosexuals to marry (because they can procreate); but I don't see the reason to exclude gays. Why exclude them?

Second, many gay individuals and couples DO have children, and raise them in a loving, nurturing home.

Third, the policy of the State of California is that gay individuals are productive members of society, imbued with all of the rights and responsibilities of heterosexual individuals. It is the policy of California not to discriminate against gays.

Fourth, the Court has held that laws that discriminate against gays are to be treated the same way that laws that discriminate against religions are treated. In legal terms, laws that discriminate based on sexual orientation will receive "strict scrutiny" from the court. The law must be necessary to further a compelling state interest. If there was a law that said Jewish couples can't get married, then that law would have to be NECESSARY to further a COMPELLING state interest.

Now then, is banning gays from getting married NECESSARY in order to further a COMPELLING state interest? I have a hard time identifying ANY state interest, much less a compelling one. And if you can find a compelling state interest, (say, hypothetically, that allowing heterosexuals who can procreate to marry is a compelling state interest) is it also NECESSARY to EXCLUDE gay couples from getting married to meet that interest?

I just don't see why people who argue on behalf of the Religious Right can't come out and tell the truth: they don't like homosexual behavior; in fact, they want to criminalize homosexual behavior; and if they can't criminalize it (Lawrence v. Texas), they certainly don't want the state to validate the homosexual relationships to the same extent that the state validates heterosexual relationships. In short, they think homosexuals and homosexual relationships are "lesser than" heterosexual relationships. Racist white people have thought the same thing about black people, and the court rightfully prevented the racist white majority from discriminating against black people.
6.24.2008 12:44pm
Hapag Lloyd (mail):
ReaderY - Although Frierson seems on point, and the Marriage Equality folks will have to deal with it, I think it is unpersuasive.

First, Frierson was brought several YEARS after the initiative amendment had been passed by the people and been enforced in the courts. So declaring the amendment unconstitutional at that point would have been very difficult for the Court.

Second, the law involved in Frierson did not take away a fundamental right from a suspect class. By taking away marriage from gays, the proposed initiative will take away the Court's Equal Protection review. That's a pretty huge deal (and I don't think it has ever been done before in California).

Third, when the people act through the initiative process, they are acting in their legislative capacity; as opposed to their "ultimate source of all law" capacity. The Marriage Equality folks don't seem to argue that the People CAN'T revise the constitution, or make marriage exclusively a heterosexual thing; instead they seem to argue that to make such a fundamental change, the People need to go through the proper channels.

Fourth and finally, Frierson didn't take away any rights from prisoners. Instead it defined the parameter of those rights to what was contained in the federal constitution. Here, the initiative TAKES AWAY COMPLETELY a fundamental right (from a suspect class).
6.24.2008 12:56pm
nutbump (mail):

Hapag Lloyd:In short, they think homosexuals and homosexual relationships are "lesser than" heterosexual relationships.

Homosexual relationships even better then anything, but homosexual couples are different from heterosexual couples, that is why equal protection does not apply here
Compelling reason is simple, if you allow gay to marry that means you enforce equality. If you are pushing for total equality and equivalence you should allow gays to procreate. That means you want gays to have a right get into illegal activity i.e. cloning.
I also want to point that you are trying to use communist or fascist methods to change people's mind by threatening them and giving them various labels like racists, anti-Semites' or gay haters.
6.24.2008 1:25pm
Arr-Squared (mail):

You think homosexuality is okay, but necrophilia and bestiality are wrong. What makes them wrong? That you find them "icky"?

I didn't see anyone pluck this low-hanging fruit, so here goes:

Necrophilia, bestiality, and pedophilia are wrong because one partner in each case is unable to give consent to the relationship. End of story.
6.24.2008 1:32pm
Arr-Squared (mail):
Sorry for the posts in succession.


If you are pushing for total equality and equivalence you should allow gays to procreate. That means you want gays to have a right get into illegal activity i.e. cloning.


Or, I dunno, adoption.
6.24.2008 1:35pm
nutbump (mail):


Or, I dunno, adoption.

Adoption is not a right. Period. There is no right for adoption.
So even after you artificially force equality there is going to be huge inequality, so stop talking about bogus equality.
6.24.2008 1:44pm
Arr-Squared (mail):
Perhaps my point was too simple; I will try to spell it out differently:

Same-sex couples procreating need not involve illegal activity like cloning.
6.24.2008 1:52pm
Hapag Lloyd (mail):
Nutbump, without any disrespect meant, I did not understand your 12:25pm post.

If you are claiming that Equality doesn't apply here because the heterosexual couples can have babies and homosexual couples can't, you have not explained why PREVENTING homosexual couples from getting married is necessary to getting heterosexual couples to get married and have babies.

A little about people I know: My grandma (widow) got remarried at 85 (she can't have kids, but can get married, and the state didn't care). My sister got married and has no intention of having babies (the state didn't care). My aunt got married, and then found out she was incapable of having babies (the state didn't care before or after). So why oh why do you think the state should care if a gay couple gets married?

Because the truth is, you don't like the idea of gays getting married. Right? I mean, it really has nothing to do with whether gay couples are capable of procreation.

Think of it this way: if next year science discovers a way for gays to procreate (without "illegal cloning"), would you remove your objection to their marriage?
6.24.2008 1:59pm
Oren:
That means you want gays to have a right get into illegal activity i.e. cloning.
Cloning isn't illegal, it's only illegal to do so in a lab funded by the gov't (NIH, NSF), AFAIK -- if I'm wrong, I'd love to see a citation.
6.24.2008 2:00pm
Randy R. (mail):
nutbump: "Optimal means mother and father."

Always? So if a mother is an alcholic, the father is an adulterer and beats his children, and -- for good measure -- commits incest with the kids, that is a better environment that a wealthy gay couple who treat their children well?

Okay, got it.

And how about this: Child X is in foster care, abused by his foster parents, whereas Child Y is raised by loving gay parents. Which is more optimal for the kids?

"Child X is not better or worse of Child Y" Okay, then it doesn't make any diffrence whether the gay parents are married or not? Then that contradicts your statement that children do better when the parents are married than when they are not.
6.24.2008 2:47pm
Lovernios:
This is, what the nth thread on SSM? The arguments have come full circle with neither side persuading the other. Many of the arguments, on both sides, serious and well thought out; many charitably categorized as fringe.

Are we tired yet?

My only contribution on this subject is to note the less than democratic methods used in Massachusetts. Before the Goodrich decision a intiative petition was presented to the legislature in constitutional convention and then summarily tabled as the convention adjourned.

Then came the SJC decision and a subsequent initiative petition. Rather than repeating the first legislative trick (and after the SJC opined that that manoever was not constitutional) the concon was delayed six months until the legislative leadership twisted enough arms to ensure that the petition would not receive the votes to move to the ballot.

All the while the gay bar and its legal supporters were meeting with legislators and it's rumored with the judiciary to ensure the proper outcome. Shades of "back room deals" and "old boy networks" so often decried by "progressives"!

SSM in Massachusetts was in the bag, from day one. All of legal academia, the bar, the judiciary and the Democratic party used all their power to bring this about and the people be damned.

It's ironic that many of SSM supported were claiming that even if it went to the ballot they would have won. Seems like they didn't want to bet the house on it though.
6.24.2008 3:25pm
GM (mail):
Oh, man -- I am so tired of DangerMouse and his ill-tempered kindred raving on about the destruction of "normal" marriage that will come about by virtue of the extension of marriage rights to same-sex couples.

They make these comments with absolutely no proof. It is assertion, assertion, assertion, with no facts to back them up. Where are your facts? Where is the data?

The answer is that the facts and the data simply DO NOT EXIST. Their attitude is motivated by anti-homosexual animus, which is itself motivated by their insistence on clinging to the tenets of a book that was written by man and that claims some ridiculous divine authority with regard to topics our understanding of which has changed immensely over the past couple of hundred years.

The burden is now on those people to show how allowing two men or two women to marry will in any way change their lives. And they fail repeatedly to carry that burden and are forced to resort to ad hominem attack, straw-man arguments, appeals to biblical authority, etc.

Fail, fail, fail.
6.24.2008 4:25pm
KWC (mail):
Lovernios,

I categorize your comment as fringe. And I'm being charitable.

KWC
aka Knows Hypocrisy When He Sees It
6.24.2008 4:33pm
KWC (mail):
Dangermouse is what we call in French "le sac de douche"
6.24.2008 4:34pm
Lovernios:
KWC,

Obviously, you know very little of how things work in Massachusetts politics.

What Do You See In The Mirror?
6.24.2008 5:03pm
Randy R. (mail):
Well, then, Lovernios, if this 'well-known' how politics works in Massachusetts, then why didn't the anti-gay side use the same tactics? And if it's well known, then why are you complaining about it? Because your strong arm tactics didn't win the day?

And speaking of unethical behavior, what about the people who used bait and switch on people with the petition process? It is now known that the people who tried to get people to sign a petition to remove SSM from MA would tell people that they are signing an 'protect the environment' petition, and then the actual petition would be two or three pages down, and it turns out that it was in fact an anti-gay petition.

Oh, I guess that's perfectly okay. And democratic.
6.24.2008 5:35pm
LM (mail):
GM,

"Their attitude is motivated by anti-homosexual animus" is a "resort to ad hominem attack."
6.24.2008 5:35pm
Randy R. (mail):
And lastly, why should a fundamental right, such as the right to marry, go up for a vote to the public in the first place? Whenever have we put up a right for interracial marriage in any jurisdiction?

Oh I see. We must put this to the people because you know that they will vote it down. Thanks for upholding the constitution.
6.24.2008 5:37pm
KWC (mail):
LM,

Actually, it's not. People use the phrase "ad hominem" around here too flippantly. GM's point was not that certain arguments are weaker because they come form someone motivated by anti-homosexual animus. GM just pointed out that people are. That might be an insult, but it's not an ad hominem attack. Let's review:

"John is a communist!" [not an ad hominem attack]

"John is a communist so we shouldn't buy his argument about welfare institutions" [ad hominem attack]
6.24.2008 6:20pm
Lovernios:
Randy,

The reason that the anti-SSM side lost the power struggle was that in Massachusetts, the establishment is overwhelmingly Democratic, liberal and pro-SSM. On one side you had the business community, the entire bar association, the Democratic party, the law schools, and a sympathetic judiciary pre-disposed to decide in the favor of the plaintiffs. On the other the church, some grass roots conservative groups and ordinary citizens. It wasn't really much of a contest.

The political establiishment in Massachusetts has an aversion to any initiative petitions. They view this process as an encroachment on their power (which it is) and routinely subvert it any way they can. Including challenging the signatures, making claims like yours (although I think everyone should read what they are signing) which have never been substantiated, and if neccessary dubious parliamentary tricks.

As to fundamental rights, I think these threads have shown that there is strong disagreement whether marriage is a fundamental right. However, it is clear that the initiative petition process is clearly a fundamental right in Massachusetts exlpicitly outlined in the constitution, and its subversion seems not to bother you if the end result is one you favor. If the first petition had succeeded (and there are some SSM supporters who believe it would have failed at the ballot box) then there would have been no constitutionaly protected right to SSM in Massachusetts. If it had been defeated, then the people would have had their say and I would be fine with that.
6.24.2008 6:42pm
KWC (mail):
Lovernios:

For someone who is sick of talking about this, you sure are spending a lot of time talking about this.
6.24.2008 6:53pm
David Schwartz (mail):
Clayton: It seems you are arguing that a person who does not know what process is due cannot write a law requiring due process.

In fact, when the Constitution calls for due process, it doesn't mean that what is required is whatever anyone considered to be due process at that time. It meant that whatever process was actually in fact due was required.

Discovery that new forms of process are due then becomes discovery that new forms of process are required.

The same applies to other provisions.

I utterly reject the "original intent" argument in cases like this. We have to figure out what the rights granted actually *are*, not what the framers thought they were.

The framers chose to require due process so that any processes discovered to be due would be require.

"... nor deny to any person within its jurisdiction the equal protection of the laws."

This seems pretty clear to me. Surely it meant to apply to newly-discovered unequal treatments too, not just the ones the framers knew about.
6.24.2008 6:56pm
Oren:
Lovernios, the fact that the anti-SSMers couldn't even get 25% of the legislators to go along is quite enough to call it a dead issue. It's such a low bar that it's hard to imagine any measure seriously supported by the populace that would fail at that level.

Truth is, the anti-SSM movement in MA has largely died down. Very few of the legislators that opposed the initiative are being campaigned against on that matter. It's small beans.
6.24.2008 7:07pm
LM (mail):
KWC,

I agree with the meaning implied by your illustration, but I disagree with how you applied it here. In context, GM's comment was clearly of the latter ad hominem type, not the former random attack.

Oh, man -- I am so tired of DangerMouse and his ill-tempered kindred raving on about the destruction of "normal" marriage that will come about by virtue of the extension of marriage rights to same-sex couples.

They make these comments with absolutely no proof. It is assertion, assertion, assertion, with no facts to back them up. Where are your facts? Where is the data?

The answer is that the facts and the data simply DO NOT EXIST. Their attitude is motivated by anti-homosexual animus, which is itself motivated by their insistence on clinging to the tenets of a book that was written by man and that claims some ridiculous divine authority with regard to topics our understanding of which has changed immensely over the past couple of hundred years.

GM isn't just saying Danger Mouse and his friends are pious bigots. S/he's saying the explanation for their ravings is that they're pious bigots. Not that it matters much. It would be rude either way, as is plenty of what GM is responding to. But in context, it's certainly ad hominem.
6.24.2008 7:10pm
nutbump (mail):

Hapag Lloyd (mail):
Nutbump, without any disrespect meant, I did not understand your 12:25pm post.

If you are claiming that Equality doesn't apply here because the heterosexual couples can have babies and homosexual couples can't, you have not explained why PREVENTING homosexual couples from getting married is necessary to getting heterosexual couples to get married and have babies.

What is a point? Homosexual couples are not equal to heterosexual, so no one preventing anyone from anything. Homosexual have civil unions and domestic partnership.
Homosexual can't marry each other because it is illegal, similar to close relatives can't marry each other. Both types of couples cannot have children.
6.24.2008 7:32pm
LM (mail):

Homosexual can't marry each other because it is illegal, similar to close relatives can't marry each other. Both types of couples cannot have children.

No, close relatives can have children, but we don't want them to, so they're not allowed to marry. I don't think we have the same concern about SSM.
6.24.2008 7:37pm
Lovernios:
KWC,

What do you care what I talk about? You don't have to read my comments and you don't need to respond to them. I very rarely comment here and I'm always civil.

Oren,

You're right that 25% of the legislature is a low bar, but it did require a postponement of the constitutional convention until enough legilators were on-board with the establishment. Most observers thought that the anti-SSM side had the 25% initially. And you're right that it is a dead issue in Massachusetts. It doesn't make the process any more palatable.

As to the legislature, in Massachusetts incumbents rarely are defeated. In fact many, many seats are uncontested by the Republicans. We have, for all intents and purposes, a one party state. And yes, we get the govenment we deserve. For (secular) conservatives like me, our only avenue is venting on blogs like this. So, please give us our mean pleasures.
6.24.2008 7:42pm
nutbump (mail):

No, close relatives can have children, but we don't want them to, so they're not allowed to marry. I don't think we have the same concern about SSM.

Exactly the same concern, equality first homosexuals are second. If you allow heterosexual to make children you have to allow homosexual couples make children also. They can clone them, and that is illegal, so homosexuals can't marry each other.
6.24.2008 9:27pm
Ryan Waxx (mail):
Exactly the same concern, equality first homosexuals are second. If you allow heterosexual to make children you have to allow homosexual couples make children also. They can clone them, and that is illegal, so homosexuals can't marry each other.



Faulty logic. If someone cannot bear children, that in and of itself does not disqualify a person from marrying, so it can't be used as a basis for denying homosexual marriage, either. Find another basis, this one does not work.
6.24.2008 10:18pm
Randy R. (mail):
"They can clone them, and that is illegal, so homosexuals can't marry each other."

and yet, we have people like Lovernios who are complaining precisely BECAUSE gays can marry in two states. Perhaps, nutbump, you should explain to him that gays can't marry in Massachusetts. I'm sure he'd be very happy to hear the news.
6.24.2008 10:37pm
Oren:


Oren,

You're right that 25% of the legislature is a low bar, but it did require a postponement of the constitutional convention until enough legilators were on-board with the establishment. Most observers thought that the anti-SSM side had the 25% initially. And you're right that it is a dead issue in Massachusetts. It doesn't make the process any more palatable.

As to the legislature, in Massachusetts incumbents rarely are defeated. In fact many, many seats are uncontested by the Republicans. We have, for all intents and purposes, a one party state. And yes, we get the govenment we deserve. For (secular) conservatives like me, our only avenue is venting on blogs like this. So, please give us our mean pleasures.

If opposition to SSM were as strong as some people portray, the elections would certainly become more competitive. The fact is, most of us are fine with SSM. We keep voting in the incumbents, they keep voting down the initiative -- you are right though, it is what we deserve.
6.25.2008 12:37am
Oren:
Also, still not cite on cloning being illegal in the US. All I could find are NSF/NIH rules prohibiting you from working on cloning if you are a gov't funded lab.
6.25.2008 12:39am
jgshapiro (mail):
I'm not sure that cases cited by Eugene in the 3rd point are on point.

From what I recall, the CA Supreme Court was the first court of last resort to find that homosexuality is a suspect class.

So the question for the CA Supreme Court is whether taking a fundamental right away from a suspect class -- essentially exempting them from state EPC review, at least as far as marriage is concerned -- is a revision. (I wonder whether Eugene thinks that an change to the state constitution saying gays no longer get strict scrutiny would be a revision?)

The whole point of the state EPC is to allow judicial review of laws that unfairly target or exempt suspect classes. If that review can be short-circuited as to a suspect class, that is a fairly far-reaching change to CA's governmental plan that might require a more cautious process (the revision process) to effect.

It doesn't mean the voters can't change the provision, it just means they need to proceed through a different process that takes longer (and that is much less likely to succeed). But then again, the whole point of making certain changes subject to the revision process rather than the amendment process is to ensure that they get the careful consideration that does not accompany the ordinary initiative process.
6.25.2008 2:45am
nutbump (mail):


Also, still not cite on cloning being illegal in the US. All I could find are NSF/NIH rules prohibiting you from working on cloning if you are a gov't funded lab.

Human cloning is illegal. Once gay are married they will have a right to clone humans. Otherwise they are not going to be equal.
6.25.2008 11:19am
nutbump (mail):


Randy R: and yet, we have people like Lovernios who are complaining precisely BECAUSE gays can marry in two states. Perhaps, nutbump, you should explain to him that gays can't marry in Massachusetts. I'm sure he'd be very happy to hear the news.

Yep, this is outright usurpation of power similar to fascism or other form of dictatorship that serving to gays.
6.25.2008 11:24am
nutbump (mail):

Ryan Waxx: Faulty logic. If someone cannot bear children, that in and of itself does not disqualify a person from marrying, so it can't be used as a basis for denying homosexual marriage, either. Find another basis, this one does not work.

That someone is not disqualified because it belongs to different class. Class of heterosexuals is capable to procreate and class of homosexuals can't. To preserve a marriage equality you either have to give the same right to both classes or you have to revoke that right from both.

If woman can't get pregnant she still is going to be a woman and have a right to go to gynecologist.
6.25.2008 11:30am
Colin (mail):
Human cloning is illegal.

You keep saying that, but you still haven't shown us that it's true. Oren tells us the only law is against federal funding of human cloning. Is he wrong? Can you show us a California or federal law that bans human cloning?
6.25.2008 12:38pm
Lovernios:
No Randy,

I'm not complaining about gays being able to marry in two states. I'm complaining that the due process rights of the people via initiative petition were subverted by collusion between the legislative leadership, the judiciary and the plaintiff's attorneys.

SSM proponents had ata least three ways of getting their way, through legislation, constitutional amendment, or a lawsuit. They chose the latter because it was the surest means to their end. Unfortunately, SSM opponents had already started an initiative petition (prior to the Goodrich decision) that had to be dealt with. It was the manner in which that petition was squash wherein lies my complaint.

You emotional attachment to this issue due to your sexual orientation is causing you to imagine what I think and believe re SSM.
6.25.2008 5:11pm
Julian Summers (mail):
With all of this talk about whether or not the voters can revise or amend the constitution, the petitioner's second, and in my view better argument, has been ignored in this discussion: Should the initiative be invalidated because the facts have changed and therefore the statement describing the initiative and its impact are not valid and the people who signed the petition to get the initiative on the ballot have not had a chance to view the initiative in that light.

Specifically, the initiative stated that there would be no change in current law and no fiscal impact. This would no longer be the case - the current law is to allow SSM and there would be a fiscal impact at a minimum with the county recorder offices statewide because of the change in the status of the licenses issued (of course other state and/or private benefits may have become vested by reason of the "marriages"). The issue as to whether the initiative constitutes a change or an amendment seems to be weak given the facts, but their second argument may have some traction.
6.25.2008 7:22pm
Julian Summers (mail):
Also, where's the talk on the implications of Romer v. Evans (limiting a particular group's rights by amending the state constitution violated equal protection because the targeted group now would have a different and more difficult process to effect a change in the law)?

Lawrence v. Texas should also raise some very important flags in this debate (particularly O'Connor's concurrence and Scalia's dissent in Lawrence which foresaw that under the Court's reasoning in Lawrence SSM bans would not pass even a rational basis review).
6.25.2008 7:27pm