Here's to progress.

It'd be a crime if the courts invalidated Prop 8. And, no, I don't say that because I don't agree with the idea of gay marriage, but because of the fact that the California state Constitution has been amended about a hundred times since it's creation, most-- If not all-- Through ballot initiatives. Prop 8 is just one in the long, long, long line of amendments. The only problem here is that California's Constitution is too easy to amend.

And existing marriages shouldn't be annulled. That'd just be cruel.

Just want to make sure I have it right, Derwood:


Not wanting to receive death threats for giving money to a cause is seeking "special privilege?"


Gonna be tough to support a 'hate crimes' law with that attitude.

but it was a ballot intitiative that was unconstitutional, and should never have been put to a vote. it trampled all over homosexuals' right to equal protection under the California Constitution.

I have no idea what you're talking about

How was it unconstitutional? Unlike the 2000 ballot initiative which created a law banning same-sex marriages, which was thusly decided to have violated California's equal protection clause, Prop 8 changed the constitution itself. How can a constitutional amendment be unconstitutional? Furthermore, California's own constitution allows for it to be amended through ballot initiatives and it's been amended numerous times just that way. Prop 8 is no different than any of those other amendments (And there are about a hundred of them). Indeed, this is a right afforded to the people of California by its state constitution. You can't decry "the will of the people" while claiming Prop 8 to be unconstitutional, since California's constitution allows itself to be amended by "the will of the people".

Anyway, I expect the courts to uphold Prop 8 yet allow those marriages which took place prior to Prop 8 to stand, as there's nothing in Prop 8's wording which would indicate that it's retroactive.

Let's say I want to pass a constitutional amendment to change the three branch government to a one branch government, thus negating checks and balances. Should that even appear on the ballot or does that breach one of the fundamental principles of our republic which is clearly spelled out in our Constitution?

Likewise, social equality is spelled out very clearly in the CalConstitution. If the SCOC deems this proposition as in breach of the CalConstitution, it doesn't matter if 90% of the people voted for it, we're not in a direct democracy and we don't allow the tyranny of the majority. We live in a republic with certain principles that should endure regardless of popular opinion.

"Oh the irony; these folks had no idea plundering the donor info of the "No on 8" campaign to harass those voting against it, but now that THEY are being harassed, it's suddenly an issue and they want special privileges." -- Derwood





-- Oh, please.
Please provide a link showing that these people physically threatened, phoned businesses threatening a boycott, etc. etc.

You can't. That's mandated by the U.S. Constitution, and the U.S. Constitution is the supreme law of the land. Gay marriage, on the other hand, is an issue left up to the states to decide, which means that each state's constitution becomes supreme law of the land in each individual case.

But how can an amendment to the constitution be a breach of the constitution? That's what I'm not understanding here. It makes little sense at all.

And, again with the tyranny of the majority thing. If you don't like it, then maybe you should change the California state constitution so that the majority can't amend it through ballot initiatives and popular vote. Because, until you do, the "right" you're trying to take away from the people of California is explicitly granted by it's constitution.

California Constitution
Don't worry, the necessary quote is toward the beginning; Article 1, section 7.
Because it violates the foundation of the document. Like you say above (paraphrasing), if it's mandated already by the constitution in question, you can't. As the CalConstitution already allows for equal rights and equal protection, you cannot simply remove that by vote. Some things are beyond the reach of democracy, and for good reason.
Some amendments are lawful, some are not. It's up to the SCOC to determine which is which. So we'll find out tomorrow.

Also, as many of the TFP Constructionists on this board often remind us, the Constitution is a document whose purpose is to give rights to the citizens, not take them away. Amendments almost always provide clarity on the given rights of the citizenry. The notable exception to this was Prohibition, but we know how that turned out

It's also against the California Constitution to pass amendments as ballot measures that fundamentally alter the Constitution without legislative approval.

Ah, good point. I forgot about that.

I'm not going to lie. I didn't read it, mainly because the California constitution isn't what's in question here.

I'm feeling a sort of disconnect here. You seem to be ignoring why amendments exist in the first place or their purpose in existing. The courts initially said that, as per California's state constitution, that statutes denying the legal recognition of same-sex marriages was in violation of California's equal protection clause. Okay. So what do you do? You amend the constitution to define marriage as being between one man and one woman. That involves no violation of California's equal protection clause, as it doesn't involve "discriminating" against gays, specifically (I believe we've been over this before). It merely limits the scope of marriages, which "discriminate" against anyone seeking to enter a marriage consisting of anything other than one man and one woman.

Anyway, as to your assertion that some things are beyond the democratic scope:

"Here we are dealing with the power of the people, the inalienable right to amend the Constitution."-- Joyce Kennard

Indeed, as I've said prior, this is a right explicitly guaranteed by the California constitution (Unlike the right to marry). What you, in essence, want is for an explicit right afforded to the general population to be discarded because you don't like it, in favor of a right never explicitly granted by the California state constitution. That makes little sense, and involves trampling on the rights of the many for the few.

The court's job is to make sure that laws are in-line with the Constitution. Amendments to the constitution, by their very nature, have to be lawful because it is upon the Constitution that laws are based.

You're asking specific questions about my state's constitution. I figure that the best place to start is to actually read it. It's a damn fine piece of writing. You'd likely find the section I specifically cited (it's really not a long read at all) to be relevant to the discussion.
So amendments can do anything regardless of existing law and legal precedent? I think it's time that we have an amendment that says all the federal funds only go to California, New York, Texas, Florida, Illinois, Pensylvania, Ohio, Michigan, and Georgia, since we have controlling votes in the House. Or just 26 states in the Senate.
You seem to be under the impression that an amendment can do anything. It can't. There are limitations. And it has nothing to do with what I like and everything to do with the law and our enumerated principles.

InfiniteLoser,

If I got enough support in California to put an initiative on the ballot that would amend the constitution to define marriage as only between a white man and a white woman, would you think that would be legal (constitutionally speaking)?

If you can get it passed, more power to you.

As I've said twice (Or is it thrice?) prior, until you make it harder to amend the California state constitution, then you're bound to the "will of the majority" and the inalienable right to make changes to it via ballot initiative.

We're not, though. The process can be reviewed by the California Supreme Court and they can deem it unconstitutional. If they deem it so, it won't be added to the CalConstitution.

If they deem it unconstitutional the judges would, in effect, be placing themselves above the people in amending the state constitution based on their own personal opinions and not the law. Hell, they would be ignoring the constitution which explicitly grants the general populace this right.

If you want the ban gone, then vote it gone.

...Well, assuming the ban is still there after tomorrow lol

We don't live in a direct democracy, even via the amendment process. As I said, amendments can't do anything the voters want. IIRC, smooth is an attorney, and I'm 99% sure his post is correct:
I'm not an attorney, but I'm pretty sure smooth is.

How would you know that rights the constitution explicitly grants? You haven't read it. It sounds to me like rights granted by the constitution with respect to the ability of the people to amend via referendum are limited. If this is true, and the courts decide that prop 8 is unconstitutional, then it seems entirely possible that they will have done so in a constitutionally acceptable way.

In other words, you are mistaken.

You're the one who is mistaken.

Read the California state constitution. You won't find anything about marriage being a right anywhere in there. The closest thing to it you're going to find is the equal protection clause, and the courts formed an opinion based on it, that opinion being that California's equal protection clause prevents discriminating against same-sex marriages (Nothing about gays, in general). As the court exists to make ensure that every law is in-line with the Constitution (First the U.S., Constitution, then Federal statutes and then the state constitution), then their opinion would trump a law they deem to be in violation of the constitution (Which Proposition 22 was). Okay. Fine. That's the democratic process at work. Prop 8 was an entirely different monster all together, as it amended the state constitution itself. As such, there is no legal basis on which to claim it's "unconstitutional". The amendment changed the thing the courts are supposed to base their decisions on and the courts have a duty to uphold the constitution, regardless of how "wrong" or "unfair" one might view it to be.

But, see, that's not even the point. The point, as I understand, is whether or not Prop 8 should have even been allowed on the ballot to begin with and, from what I understand, is that the court is going to rule on Prop 8's side on the whole "amendment/revision" issue, since it did not fundamentally alter the state's governing structure. But like I said, I expect Prop 8 to be upheld and all those gays who married before the ballot passed would stay married, as there is nothing in Prop 8 that would indicate it was intended to invalidate all marriages that had been performed prior to election day, which would make sense since no marriages had been performed at the time it was drafted.

But, *shrugs*, we'll see what happens in about 12 hours.

Nothing that you said speaks to or discounts anything that I said.

Oh well, then.

And... The court upholds Prop 8.

Well, I guess they're going to have to wait.

I see. Then by my understanding of the law, we'll (we meaning pro gay-rights people) need to propose a new amendment to counter this one in the next election cycle? Can we do that or is there some sort of waiting period?

I was just looking at some interesting polling numbers on the support for Prop 8.

Apparently, old, heterosexual, upper-middle-class, Christian, gun-owing conservatives are mainly responsible for passing the measure.

Shocking.

There's no waiting period and, yes, you can propose a new amendment to vote on in either 2010 or 2012. Well, assuming there isn't a vote to make it harder to amend the California state constitution first, which I expect will probably be the next step for opponents of gay marriage.

That sure would be ironic. Pass an amendment to prevent the reversal of the policy that you got passed because the system was lenient. Genius.

Also.

Welcome to 1850.

More shocking to the rest of the world is that California has plenty of old, heterosexual, upper-middle-class, Christian, gun-owing conservatives. Yep, we're a microcosm for the rest of the country in a lot of ways.

they did the same thing with their budget and keeping the government floating...

not surprising. they been doing that since I was a kid.

Blame the system, not the people who follow procedures set forth by that system.

Is that anything like "don't hate the player, hate the game"?

Nope.

A shameful decision passed down by a band of cowards.

This is clearly a breach of UN human rights legislation and international law - sadly America is by far not the only country responsible for human rights abuses against homosexuals in this manner - there is hardly a nation in the world who should not hang their heads.

Still, it would not have passed if not for overwhelming support by Blacks.

It would not have passed had it not been for less than 600,000 people, which in California is a relatively small amount. With voter turnout at under 80%, it's not really a big thing.

The fact that the fucking CONSTITUTION can be amended by a 52% popular vote is a goddamn joke

this is why california should have a con-con. so that they can deal with that pesky majority rule thing. still though, it does provide a really good example of why people shouldn't take the whole 'we won, we're the majority, what we say should go' thing seriously.

Yes, that's exactly what it's like, but that's about what I expect from him after his years of relegating gays to second class citizens on this board, so, nothing to see here.