California's Supreme Court & Gay Marriage: ROUND 2

D_Ireonsyd_Colonrinse

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Do California voters have the power to "overrule" the California Supreme Court on their own historic decision last May legalizing gay marriage?

Thursday, March 5, 2009, CA's Supreme Court will consider challenges to Proposition 8, the initiative approved by voters (by a slim margin) to re-amend the state constitution, defining marriage as between one man and one woman. The justices hearing this challenge are the very same justices who declared that gays and lesbians had a "constitutional right to marry" almost 10 months ago.

So, this time the issue is a bit different: it isn't whether disallowing gays the right to marry is discriminatory. They already heard that case. They decided is was discriminatory. This time it's: can a majority of voters simply eliminate minority rights, specifically gay marriage, that the court has recognized?


The ruling is due in 90 days.
 

B_Nick4444

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the more interesting question, beyond the gay thing, is whether minority rights can be circumscribed by referendum

the issue of gay marriage, I think, will not be a satisfactory test, unless of course, gays constitute some sort of recognizable minority

but then if they do, then the issue becomes more muddled in larger terms -- we then have the institutionalization and legitimization of categories


:popcorn:
 
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Guy-jin

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the more interesting question, beyond the gay thing, is whether minority rights can be circumscribed by referendum

the issue of gay marriage, I think, will not be a satisfactory test, unless of course, gays constitute some sort of recognizable minority

but then if they do, then the issue becomes more muddled in larger terms -- we then have the institutionalization and legitimization of categories


:popcorn:

Actually, that's precisely the opposite of "legitimizing categories". "Categories" are legitimized when people are given different rights, not the same rights. The right to marriage, for example.

More interesting, to me, is whether or not this issue will eventually reach federal supreme courts with the question of whether or not marriage is protected under the right to pursuit of happiness.

Agreed on the :popcorn:, though.
 

kalipygian

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Actually, that's precisely the opposite of "legitimizing categories". "Categories" are legitimized when people are given different rights, not the same rights. The right to marriage, for example.

More interesting, to me, is whether or not this issue will eventually reach federal supreme courts with the question of whether or not marriage is protected under the right to pursuit of happiness.

Agreed on the :popcorn:, though.
Pursuit of happiness is in the Declaration of Independence, not the Federal Constitution, so it would only work if you were being oppressed by the Monarch of Great Britain. It is in some states' constitutions.

The way it was reported on NPR today, what the Ca supreme court is now considering is whether Prop 8 is an amendment or a revision of the state constitution, which must also be first passed by 2/3 of the legislature.
 
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Guy-jin

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Pursuit of happiness is in the Declaration of Independence, not the Federal Constitution, so it would only work if you were being oppressed by the Monarch of Great Britain. It is in some states' constitutions.

So very, very wrong.

You may want to go look up the 14th Amendment. And then recognize that multiple times in the past, those "inalienable rights" in the Declaration of Independence have been protected under the 14th Amendment through Supreme Court decisions.

Look up Loving v. Virgina, and Cleveland Board of Education v. LeFleur.

Take Chief Justice Earl Warren's statement in the Loving v. Virgina case:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
 

kalipygian

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So very, very wrong.

You may want to go look up the 14th Amendment. And then recognize that multiple times in the past, those "inalienable rights" in the Declaration of Independence have been protected under the 14th Amendment through Supreme Court decisions.

Look up Loving v. Virgina, and Cleveland Board of Education v. LeFleur.

Take Chief Justice Earl Warren's statement in the Loving v. Virgina case:

I see you are correct regarding the 14th amendment.
 

D_Ireonsyd_Colonrinse

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kalipygian: "The way it was reported on NPR today, what the Ca supreme court is now considering is whether Prop 8 is an amendment or a revision of the state constitution, which must also be first passed by 2/3 of the legislature."

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That's true. This is from the Court's own website:


In the cases before the court, the court has issued an order listing the following three issues to be briefed and argued:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?


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If voters can simply come along and "violate the separation of powers" (ie, eliminate minority rights that the court has recognized), then why can't all american voters simply "vote" on federal issues like gun control or abortion ot the separation of church of state... or any issue that comes before the U.S. Supreme Court?

Why have state or federal Supreme Courts at all? If the voters have the "right" to simply overturn their judgements?


By the way. The CA Supreme Court said that not allowing gay marriages was unconstitutional. Therefore, what the CA voters passed was a revision, not an "amendment" to the CA Constitution. They saw the Court's gay marriage ruling (an amendment in itself) and wanted to REVISE it.

If so, proponents of Prop 8 will never get 2/3 of the legislature to agree with them. In fact, they won't even get a simple majority (both the CA Senate and House passed a resolution last week saying that Prop 8, banning gay marriage, was unconstitutional, giving support to opponents of Prop 8 before the oral arguments started in court this week).
 
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