Baraka_Guru

http://www.theglobeandmail.com/news/...rticle1427694/

Two homosexual married couples (one lesbian, one gay) are challenging the constitutionality of the voter-decided Prop 8 resolution in a federal court.

Those on both sides of the issue believe this will be a historic battle.

If this goes through to the U.S. Supreme Court as expected, it could possibly pave the way to the validity of gay marriage across the country.

I think this is a step in the right direction, and I sincerely hope it gets a Supreme Court decision in favour of Prop 8's unconstitutionality. At the very least, Prop 8 is a civil rights violation.

What do you think?

__________________
Knowing that death is certain and that the time of death is uncertain, what's the most important thing?
—Bhikkhuni Pema Chödrön

Humankind cannot bear very much reality.
—From "Burnt Norton," Four Quartets (1936), T. S. Eliot

rahl

I in no way support prop 8, I think everyone should have the right to marry whoever they want. Gay, straight or bi we're all human.

That being said I don't see how a majority vote in the state of California can be considered unconstitutional. The Democratic process was carried out and the will of the people in the state of California was carried out. I'm not sure this will be overturned.

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"Your life is Yours alone...Rise up and live it"

Willravel

Rahl: the issue is not one of democracy, but of legally protected rights. If Prop 8 is an issue where the tyranny of the majority is ruled a violation of the law, it will be overturned and marriage equality will come back to California.

Still, I'm also very wary about this. I was certain Prop 8 would fail last year, as were most people I know, and we were all shocked.

Baraka_Guru

Surely anything put to a majority vote in the state of California isn't automatically constitutional. There's more to that, isn't there?

__________________
Knowing that death is certain and that the time of death is uncertain, what's the most important thing?
—Bhikkhuni Pema Chödrön

Humankind cannot bear very much reality.
—From "Burnt Norton," Four Quartets (1936), T. S. Eliot

rahl

I understand but those rights aren't legally protected yet. They should be, but they aren't yet. In order for them to be they need to be voted on. So far the people have voted no.

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"Your life is Yours alone...Rise up and live it"

Willravel

I dunno, I'm pretty sure any objective reading of the equal protection clause could be considered legal protection of equal rights for all people.

ratbastid

That's not how it works, or all the whites could hurry up and vote that the non-whites get no votes, quick-like, before whites are a minority.

Just because "the people said" doesn't make it NOT a violation of constitutionally protected rights.

rahl

Then why is it still illegal?

---------- Post added at 10:21 PM ---------- Previous post was at 10:19 PM ----------

and that's how it was for the first half of this countries life. It wasn't until it was voted on that it changed. All I'm saying is that according to my understanding, Gay marriage won't happen until it is voted on, be it congressional, or state by state.

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"Your life is Yours alone...Rise up and live it"

Willravel

That'd be a really good question for a Federal judge. If I ever meet a Federal judge, that'll be the first question I ask.

ratbastid

No. We've been a federal representative democracy since our founding. Some states have referendum power written into their STATE constitutions, but any decision arrived at by state referendum still has to comply with the FEDERAL constitution.

ASU2003

If congress passes it (or is it 2/3rds of the states), the President signs in, and the supreme court approves it, then anything can become constitutional nation-wide. But, the voters trump the legislative, unless the voters approved something that is prohibited in the constitution.

ratbastid

You're all mixed up here. The critical piece you've missed is that there is NO SUCH THING as a FEDERAL referendum in the US. Referenda (or "ballot issues" or "initiatives" or "legislative referrals") are available to certain STATES because they're provided for in the constitution of THAT STATE. The states have various mechanisms by which the government (in some cases, state legislatures, in others, the governor) can decide to run some decision as a public referendum item. It's not like the public vote "trumps the legislative". It's more like "the elected officials passed the decision-making buck to people even less qualified to make the decision".

And any legislative action of any STATE (including legislative action delegated to public vote) is still beholden to all federal law, including most centrally the federal Constitution.

So there's no provision for polling the entire nation for federal legislative issues. And polling the public of a state for legislative matters is showing itself to be a pretty iffy matter too, between ratifying Prop 8, and California's Proposition 13, where voters decided to bankrupt their own state because they didn't want to pay taxes.

rahl

But to date there is nothing in the federal constitution that allows for gay marriage. So it is left up to the states. To my understanding unless there is a specific bill that grants a Gay marriage the same rights and benefits as a Straight marriage, then it's left up to the individual states to decide.

I'm going to use the 2nd amendmant as an example. The 2nd amendmant grants all citizens the right to bear arms, but some states have restrictions placed on that right. Chicago is an example, you can't own a handgun within the city limits(it may be state wide i'm not entirely sure, but chicago for sure). By the same logic this should be unconstitutional.

/back to gay marriage

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"Your life is Yours alone...Rise up and live it"

pan6467

It's attitudes like these that keep electing leaders that put us trillions of dollars in debt and lead us into facism.

THE PEOPLE ARE WRONG< FUCK WHAT THE <MASSES WANT, they are stupid, ignorant and don't know what truly is going on.... we need government to lead us to the promised land and we need government to dictate to us all we need to know.

That said, unless Prop 8 violates the US Constitution or California's and cannot be amended to work out those violations..... LET THE PEOPLE'S VOICE BE HEARD!!!!!!

I may not agree or like it but as with the smoking bans, the people have spoken. You want to change it, do it by ballot and have your initiative/prop/amendment put on a ballot and voted on.

IT's like people crying that Ohio passed gambling and now want to legislate and challenge and reverse the vote without giving the people the chance to vote.

__________________
I just love people who use the excuse "I use/do this because I LOVE the feeling/joy/happiness it brings me" and expect you to be ok with that as you watch them destroy their life blindly following. My response is, "I like to put forks in an eletrical socket, just LOVE that feeling, can't ever get enough of it, so will you let me put this copper fork in that electric socket?"

Derwood

This worries me, as the stakes are incredibly high. As a supporter of gay marriage, I fear that a USSC ruling that upholds Prop 8 will effectively end the fight for gay marriage for a long time.

---------- Post added at 11:43 PM ---------- Previous post was at 11:41 PM ----------

Nor is there anything in the federal constitution that allows for straight marriage.

Or an Air Force.

Or interstate highways

Or

Or

Or

__________________
"You can't shoot a country until it becomes a democracy." - Willravel

Willravel

¿Who did you vote for in 2008?

rahl

Good point. I just don't how it would be unconstitutional to uphold a ballot vote by the people of California.

__________________
"Your life is Yours alone...Rise up and live it"

Baraka_Guru

The reason why the majority of people can have their voices heard today is because of decisions to instill and uphold basic voting rights for women and non-whites. These were people who previously didn't have a "voice." If they only ever listened to the majority of those who did have a voice at that time, women and non-whites today would possibly have no role in any of this.

There are sometimes moral/civil/social problems when you only listen to the majority of those with a voice.

__________________
Knowing that death is certain and that the time of death is uncertain, what's the most important thing?
—Bhikkhuni Pema Chödrön

Humankind cannot bear very much reality.
—From "Burnt Norton," Four Quartets (1936), T. S. Eliot

Cimarron29414

When I was married, I went to a church and made a covenant with God and my wife. I also signed a binding legal contract with the State and my wife. These two things are distinct and mutually exclusive. I am married through God. I am in a legally binding contract through the State. That contract was entered into willingly by two consenting adults. The benefits of that contract ensure that my property will remain with those I choose in the event of my death. That contract ensures that the money I was forced to place in Social Security will go to the person whom I choose. That contract allows me to choose who makes medical decisions when I can't. I paid taxes for all of these benefits and I took advantage of these benefits.

Allow the contract to be expanded such that the two adults get to choose with whom they make that contract - not the State. Eliminate the word "marriage" from this contract's verbiage. None of us are married in the eyes of the State - that is a convenant one makes with God and the State must separate itself from that covenant.

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"Here lies The_Jazz: Killed by an ambitious, sparkly, pink butterfly."

Baraka_Guru

Cimarron, that's a good suggestion, but it's my understanding that many homosexuals aren't merely after the state recognition of their union. Many of them also want to be wed in the presence of God.

It can be argued that the Bible teaches against the practice of divorce. Oddly enough, divorce isn't outlawed in most regions of North America.

__________________
Knowing that death is certain and that the time of death is uncertain, what's the most important thing?
—Bhikkhuni Pema Chödrön

Humankind cannot bear very much reality.
—From "Burnt Norton," Four Quartets (1936), T. S. Eliot

dc_dux

Are you suggesting that atheists cant be "married" or those who chose to have a civil ceremony only...w/o a covenant with God?

__________________
"The perfect is the enemy of the good."
~ Voltaire

Rekna

If a church wanted to marry a gay couple what is stopping them? It seems to me that anyone wanting to stop a church from doing so would be interfering with the freedom of religion.

Derwood

I agree and would take it a step further; take away the church's ability to legally sign marriage licenses. Make the religious aspect of marriage 100% ceremonial

__________________
"You can't shoot a country until it becomes a democracy." - Willravel

Cimarron29414

For Christians, the notion of marriage was created when God joined Adam and Eve. Therefore, for Christians, atheists could not enter into a covenant with God and therefore could not be "married". Since, homosexuals would be creating a union against God's will, they could not be "married" either. Our Bible is unambiguous about homosexuality. I say this without malice, I am simply explaining our belief system. I will expect all my good liberal friends here to scream at the top of their keyboards regarding this statement of Christian fact. I won't be moved and it's not really the point, now is it.

Since I do separate my faith from my State, I recognize that all those who pay taxes (used figuratively) are entitled to the same protections which my taxes pay for and which I enjoy. In short, if I get a say-so as to who gets my stuff and who gets to pull my plug, so should Adam and Adam. Whether I find the act sinful or not has little to do with the fact that there's a huge number of taxpayers who are paying for rights that they don't receive - and that is patently unfair.

Incidentally, I have 5 different gay couples in my life - relatives, neighbors, friends, and coworkers. I have spoken in great depth with each couple about my opinion on all of this. All couples completely understand my position and are extremely thankful that I openly fight with them for their right to unionize. (I consider myself unionized in the eyes of the State, BTW.)

---------- Post added at 02:13 PM ---------- Previous post was at 02:12 PM ----------

The pastors simply serve as a notary to the contract. I have no problem with them signing the "Civil Union" license. My covenant with God is the unbreakable contract, not the piece of paper I signed.

---------- Post added at 02:14 PM ---------- Previous post was at 02:13 PM ----------

I agree. If your faith allows for this union, knock yourself out. Mine does not.

__________________
Gives a man a halo, does mead.

"Here lies The_Jazz: Killed by an ambitious, sparkly, pink butterfly."

Jinn

If we're going with hyperbole here, I'm going to say that it is attitudes like yours ("the people are always right") that allowed Hilter's rise to power, the Nazi eugenics program, Jim Crowe laws, the opposition ot the women's suffrage movement, and slave ownership.

Recognizing that the majority does not always act in the best interests of the Union or the minority is essential to understanding American democracy. The Supreme Court's position exists precisely to defend against the 'tyranny of the majority', whereby the majority does whatever it wishes without balance. This only works when you're in the majority. When you aren't, it's a terrible thing.

Christians are the majority in America, should the "power of the people" vote be allowed to stand that we become a Christian theocracy? The 'majority' most often acts in its own best interests, not the best interests of the Union or ALL of it's people. The Constitution is a covenant to protect ALL of our people, not just the politically powerful.

__________________
"I'm typing on a computer of science, which is being sent by science wires to a little science server where you can access it. I'm not typing on a computer of philosophy or religion or whatever other thing you think can be used to understand the universe because they're a poor substitute in the role of understanding the universe which exists independent from ourselves." - Willravel

ratbastid

Look, not to reducto ad absurdam you or anything, but... Let's say you annoyed enough people in your city that they took a vote and decided to kill you. Would that make your murder legal? Obviously not.

I like how you snuck in that "unless the prop is unconstitutional" disclaimer in there. That's precisely what this law suit claims. Guess what: that's not for you or me to decide. Neither of us are Supreme Court Justices. So. Either contribute something worthwhile to the conversation, or stop talking shit.

Anyone who's still stomping around about the Will of the People just simply doesn't understand the legislative structure of our country. It's that simple. It's not up to the legislature to ensure the laws they pass are constitutional--including laws they delegate to popular vote for decisions on. Those laws, once signed, become law, and then if their constitutionality is questionable, a case testing the law comes before the Supreme Court, where its constitutionality is decided. That's what's happening here. There's no will of the people being contravened here. (Especially considering the travesty that the Prop 8 campaign was--it's pretty clear that the outcome is NOT the will of the majority of Californians, so...)

Cimarron29414

I'm not certain this is true. All members of legislature swear an oath to uphold the Constitution (U.S. or state). I think that when they knowingly write a law that is clearly unconstitutional they have violated their oath and should be impeached.

As for Prop 8, my understanding is that the people voted a referendum to amend their state constitution - thus making it unconstitutional to have same sex marriages. So, now the Supreme Court must ask whether this change to their state constitution violates the federal constitution. My guess is that SCOTUS will not hear this case and that California will retain the change to their constitution. I don't agree with outlawing homosexual civil unions, but the referendum vote is the way "the people" have every right to change their laws without the use of legislators.

__________________
Gives a man a halo, does mead.

"Here lies The_Jazz: Killed by an ambitious, sparkly, pink butterfly."

ratbastid

Ideal world "should"s aside, the constitutionality of legislation is really honestly of only theoretical importance to a legislator. What's important to that legislator is how their support of the measure in question will make them look to their constituency. In principle, that's because they're elected to carry out the will of the people. In practice, their constituency includes deep-pocketed concerns like corporations and lobbying groups as well, so... Like the man says: Two things you DON'T want to watch people make are sausages and laws.

Constitutionality of the law is ruled on by the Supreme Court. That's one of the Court's key functions, and the main check on legislative power. I know the checks and balances structure is a little out of favor since our last Unitary Executive did away with it, but it still actually is the law of the land.

Martian

Therein lies the crux of the matter.

Strictly speaking, I could start a church of Mars and decide to marry whomever I please. I could even decide to only marry homosexuals, and wouldn't that be fun?

Trouble is, those marriages under the current law wouldn't be legally recognized, and thus would confer none of the legal benefits.

If the state got out of the marriage business entirely and adopted a system like common-law partnerships, that would be one thing. Two consenting adults could do whatever they want, and subject to some base requirements (in Canada it's living together in a conjugal relationship for a pre-determined period of time, which varies depending on which government entity you're dealing with) that would be good enough. If they wanted to add marriage through a religious institution, that would be their lookout. This is a system that I think would work, but it doesn't seem terribly likely that it will ever exist; marriage is a deeply rooted institution throughout North America (and the rest of the world, for that matter). So if we're going to continue to use marriage as a legally recognized pairing, then in order for it to be just that status must be available to all couples, regardless of who they are or what their beliefs are. Anything less is a civil rights violation, because it creates two separate classes, which is a prerequisite of systemic abuse or oppression.

As of right now, the United States federal government recognizes marriage as only a union between one man and one woman (Defense of Marriage Act, section 2: "The federal government defines marriage as a legal union exclusively between one man and one woman."). Further to that, most of the states fail to recognize any other possible pairing either. So even if a gay couple managed to find a church that would marry them, it wouldn't be valid legally. The current case is set up to challenge Prop 8, and therefore reverse that in California.

What I'm wondering is if Prop 8 is determined to be unconstitutional, would that be grounds to then challenge the Defense of Marriage Act on the same principle? It seems to me that it would, but I am certainly not an expert here.

__________________
I wake up in the morning more tired than before I slept
I get through cryin' and I'm sadder than before I wept
I get through thinkin' now, and the thoughts have left my head
I get through speakin' and I can't remember, not a word that I said

- Ben Harper, Show Me A Little Shame

ratbastid

Never mind this.

Cimarron29414

We'll have to disagree. People of integrity uphold their oaths. Impeachment does not mean throw someone out of office. It's the trial not result. A variety of punishments can come out of an impeachment.

Constitutionality was upheld in the California Supreme Court against the California Constitution. So, the plight of Prop 8 lies with SCOTUS now. I simply don't see them stepping on states' rights in this case (since "marriages" are state contracts.)

__________________
Gives a man a halo, does mead.

"Here lies The_Jazz: Killed by an ambitious, sparkly, pink butterfly."

pan6467

Obama... didn't like either candidate but felt maybe Obama could do a better job. I was wrong... should have voted 3rd party.

---------- Post added at 07:18 PM ---------- Previous post was at 07:05 PM ----------

Yes, and the people have allowed CONSTITUTIONAL rights to be made.

Don't give me the BS about the past. This is the present. Prop 8 passed... the majority voted for it... you have 3 options

1) find it unconstitutional

2) put up a prop that would reverse prop 8 and let the majority decide

3) work on changing the state's constitution

That's it... anything else is bullshit, losers whining. Prohibition was enacted and repealed, gambling in most staets where it is now legal was outlawed and voted back in.... voters change their minds, mostly when they see that the law passed doesn't work. It's a trial and error thing and since we are all fucking human and make mistakes laws are passed that aren't fair... but people fight to make them right and find ways to repeal them or change them.

Hell, look at the progress now, 10-20 years ago prop 8 may never have even MADE the ballot... work to change it by educating the voters.... don't degrade them for voting the way they did, they'll take umbrage dig in and never change. Educate, show them what Prop 8 is truly about and let them decide again.

Nothing pisses me off more than self righteous ignorant people who believe they know better than the electorate and thus must take what the majority passed to court costing MILLIONS of dollars and opening doors for more government control... when simple education and a little hard work may get the issue passed in the next election or a subsequent election.

But those are the people that want what they want right fucking now and fuck everyone else because only they know what's best... fuck that b.s.

It took Ohio almost 10 years to finally vote in gambling... but they kept trying until they found a way to pass it. Same in some states with smoking laws, etc.

You don't want to do the hard work.... you want government to to do it for you.

__________________
I just love people who use the excuse "I use/do this because I LOVE the feeling/joy/happiness it brings me" and expect you to be ok with that as you watch them destroy their life blindly following. My response is, "I like to put forks in an eletrical socket, just LOVE that feeling, can't ever get enough of it, so will you let me put this copper fork in that electric socket?"

dippin

Isn't the challenge based precisely on option number 1? So what is your problem with it?

Baraka_Guru

My thought exactly. One good thing about constitutions is that they can protect people from the masses.

__________________
Knowing that death is certain and that the time of death is uncertain, what's the most important thing?
—Bhikkhuni Pema Chödrön

Humankind cannot bear very much reality.
—From "Burnt Norton," Four Quartets (1936), T. S. Eliot

Wes Mantooth

Glad to hear its going to be debated over in court where emotion and personal agendas (ideally) are taken out of the equation. The real question all along has been weather or not its constitutional to deny American citizens the right to marry who they want to and take part in the benefits involved. Personal definitions of marriage, religious view points, bigotry and being "grossed out" simply have no place in deciding weather or not something is either constitutional or weather the state has a compelling reason to deny the rights involved. I'm sure some people who voted on prop 8 really did their homework and came up with a rational, well thought out position based on legal history and the wording of the constitution, however can we trust that all took that same care or even had the aptitude to?

Unfortunately all to often when an issue like this comes up before voters gut feelings, prejudices and emotional reactions play just as big a roll as level headedness and rational thinking. Which is why time and time again in our nations history issues about civil rights had to be decided in the end by congress or supreme court. Complex constitutional issues simply have no place in the voting booth to be dictated by the will of the (in some cases uninformed) majority. I would argue the same when it comes to any issue that questions peoples rights especially when it may deal with interpreting the constitution.

This is an important issue and it deserves a proper forum to be debated carefully by legal scholars unimpeded by propaganda and public tastes.

"“We wouldn't need a Constitution if we left everything to the political process,” replied Mr. Olson." Indeed Mr, Olson, indeed.

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Charlatan

The US is a nation of laws. It is not a nation of people. To suggest that the majority should be able to vote to do what they want is to completely misunderstand what is great about the US.

No individual, no majority should trump the law.


This challenge of prop 8 is exactly how it should happen. A challenge has been made to see if this prop is constitutionally sound. If it isn't, like any law that is enacted and found wanting the eyes of the constitution (Federal or State), the law is struck down. This is how it's supposed to work.

__________________
"My hands are on fire. Hands are on fire. Ain't got no more time for all you charlatans and liars."
- Old Man Luedecke

rahl

I'm sorry but this is just completely false. If the people feel a law is unjust they have the power to vote a new one into law. It took PEOPLE to vote on every single law in this country. They didn't just magically appear on paper one day.

__________________
"Your life is Yours alone...Rise up and live it"

ratbastid

Are you referring to those particular people who have seats in our Legislature? Because if so you're missing the key distinction of this WHOLE conversation between "some particular people who have been elected, in principle to implement the will of the electorate" and "THE people, in general, at large".

I'm really only willing to have a conversation with somebody who will have that conversation with me. I'm not going to do the work it would take to keep up with you if you're going to pull in breakfast foods and John Deere and the red sox and cousin pookie.

pan6467

I really have no problem with it. I have problems with the attitudes like the ones I quoted above.

I also don't think you take something a majority voted for and throw darts and trying to find the law's "unconstitutionality".

I would like to know since the state Supreme Court found it constitutional under Cali. law, then what is the argument they take before the US Court? What part of the US Constitution does it violate?

If you are just taking it to the court because you don't like the result and you feel the majority are just a bunch of idiots and you know better.... then maybe you should reexamine what you truly are wanting and why.

I think courts should be the very last thing you attempt. The first is educating the voters and trying to get a new prop voted. Going to the courts first and expecting them to overturn because you know they will agree with you because the majority is ignorant and wrong... is nothing more than self righteous bullshit.

See, the difference between a true patriotic believer in the system and freedom OF ALL PEOPLE and the people claiming they want freedom but only on their terms, is the belief that, yes, the majority may make some mistakes when voting but education, determination and hard work showing the voters respect all the way through. Those that believe only they know what is best will go to courts and surrender rights and disregard the majority's will as that of ignorance and stupidity and so on.

True freedom means accepting others beliefs, rights and their opinions.

Again, 10-20-30 years ago Prop 8 never would have existed.... getting it on the ballot is an advance in the right direction. Taking it to court and disrespecting the majority because they didn't vote your way.... is the wrong way to try to advance further. Educate, respect and do the footwork and maybe in 1,2, 3 years you'll get the votes you need to overturn it.

__________________
I just love people who use the excuse "I use/do this because I LOVE the feeling/joy/happiness it brings me" and expect you to be ok with that as you watch them destroy their life blindly following. My response is, "I like to put forks in an eletrical socket, just LOVE that feeling, can't ever get enough of it, so will you let me put this copper fork in that electric socket?"

rahl

Not really sure what this means. But in our country we have a representative democracy at the federal level. The peoples wishes are carried out by the elected representative of a district. If the people aren't happy with said representative they can vote in one who will carry out their wishes. On a more local level there are ballot initiatives, which is what prop 8 was. The will of the people of California was carried out. I don't agree with their decision, but I don't live in California so I can't do anything about it. That's my only point. I'm not arguing against Gay marriage, only against your premise that the will of the people is irrelevant.

__________________
"Your life is Yours alone...Rise up and live it"