Is this politics, or is this civil rights?

[figmo]

In California one of the things we'll be voting on is Proposition 8. If passed, it would add the following wording to the California State Constitution:

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

An identical proposition passed in 2000 but was ruled "unconstitutional" by the CA State Supreme Court because it discriminates against a segment of the population.

If it passes again, the court is likely to make the same ruling, just as the US Supreme Court has repeatedly ruled anti-flag-burning legislation as "unconstitutional."

I don't know what percentage of the California population is gay, but nonetheless, such a law would only legalize active discrimination, just as the "separate but equal" laws did years ago. What I don't understand is why the supporters of this proposition are so adamant to try to legislate discrimination which, if passed, will be overturned yet again.

Comments

[patoadam]

My understanding is that the earlier proposition was a law, not a constitutional amendment. The CA Supreme Court found that it violated the California Constitution. The current proposition is a constitutional amendment, so it can't violate the California Constitution because it is part of the constitution.

[bovil.livejournal.com]

It was an initiative statute.

As for amendments not being able to violate the constitution, there's a real question there. The initiative process and the associated easy amendment process (compared to other states or the US Constitution) has left our constitution riddled with loopholes and contradictions.

[jamiethered.livejournal.com]

It still can't trump the US constitution.

[howeird]

It still can't trump the US constitution.
Yes it can. All things not deemed Federal in the US Constitution, are the responsibility of the State. Marriage is one of those things.

[bovil.livejournal.com]

Well, it can and it can't.

That which is the states' is the states'. The federal government can't take that away from them.

The states can't, though, enact laws that violate the US constitution. In this case, the question is does this law violate the equal protection clause of the 14th Amendment to the US constitution?

[osewalrus.livejournal.com]

To which the Supreme Court has not spoken, and no one wants them to -- not knowing how thy would end up deciding.

The Lawrence case, overturning Bowers v. Harwick, rested on privacy grounds and involved the limits of government authority to criminalize conduct between consenting adults when there was absolutely no showing of any general harm.

Roemer v. Evans likewise rested on grounds inapplicable here. Roemer dealt with the right of all citizens to petition the government for redress of grievances. There, the Court found that Colorado's Amendment 2 banning any legislative, executive, or judicial action to prohibit discrimination based on sexual orientation violated equal protection by denying to a clearly identifiable class of citizens the right to participate in the process of government or redress of grievances.

The Supreme Court has never found that prohibitions on same sex marriage violate the federal constitution. It is unclear what grounds could be invoked, although the equal protection clause is the usual favorite. This is part of what animates the "nature v. nurture" argument on the legal front, since it makes a difference under the equal protection analysis. But even if the Court accepted that homosexuality or heterosexuality is biologically destined from birth, it doesn't automatically translate into protected class status and heightened scrutiny.

In any event, some depressingly large number of states have constitutions that define marraige as between a man and a woman.

[merlinpole.livejournal.com]

Alito, Scalia, Roberts, and Thomas are not "honest" judges. They don't judge based on the US Constitution, they judge based on their personal agendas, their religious creeds, their social networks, and their egos. The put their sectarian and socio-economic attitudes, above others' religions as regards what they consider Law, regardless of the words of the actual law in the United States.

Kennedy is also not what I would regard as an "honest" judge on that basis, either...

I don't regard them as making judgments which are wise, worthwhile, or acceptable.

[merlinpole.livejournal.com]

I left off "self-gratification." I couldn't think of the term while I was writing the above. Scalia, Roberts, Alitos, and especially Thomas, are very much into the self-gratification on Specially Privileges Males justifying their actions claiming it is to higher good, when actually what's going on is they feel so very good when they are publically justifying their special privileging and claiming how superior they and their views are...

Big smug offensive abusive bullies...

[osewalrus.livejournal.com]

So? Whatever you think of them, they are still the justices on the court, and will be for some time.

Is this about being effective or about feeling good?

[dpolicar]

What I don't understand is why the supporters of this proposition are so adamant to try to legislate discrimination which, if passed, will be overturned yet again.

Will it? My understanding is that, by editing the state constitution, they counter the claim that it's unconstitutional.

[gridlore.livejournal.com]

As others have pointed out, this amends the state Constitution. so it neatly avoids the fact that discrimination is against everything our state stands for.

Of course, what the morons fail to account for is that if Prop 8 passes, the next step is to challenge the validity of the Constitutional ban in Federal Court using the 14th Amendment's ban on the denial of rights without due process as the main argument.

Since the SCOTUS has ruled repeatedly that marriage is a basic right, they'd have no choice to strike down the Prop 8 ban.. along with every other state ban on gay marriage. DOMA will also be toast.

Like most bigots, the Prop 8 supporters don't think past their noses.

[randwolf.livejournal.com]

The Roberts court won't do it, unless one of the five conservatives breaks rank.

[bovil.livejournal.com]

Come on. You're telling me you believe that such fine jurists as the conservatives on the Supreme Court are going to compromise their beliefs on states rights?

(Yeah, I thought so. I expect one might not.)

[merlinpole.livejournal.com]

They're narcissicist abusive bullies. It's difficult to determine which is the worst. Scalia and Alito's claims of personal privilege are especially revolting (Scalia prohibits anyone recording him when he talks.... yeah, sure, open and honest government, yeah, sure....)

[capplor.livejournal.com]

Ref what I put in the main thread, below.

[osewalrus.livejournal.com]

See comment above for a more detailed analysis.

I am not persuaded that this gets excluded on equal protection. First, you'd have to establish that homosexuals are a protected class. The Court as never gone that far. Next, you would have to settle on the level of scrutiny. While race discrimination gets heightened scrutiny, gender discrimination gets something like intermediate scrutiny kinda sorta. Then you would have to determine that the proferred justification of the state does not survive under the relevant scrutiny standard.

None of these steps is a sure thing, particularly with the current configuration of the Court. This is why federal litigation has generally been considered too dangerous. It is why the Boy Scouts can ban participation by openly gay scouts as a First Amendment issue, but cannot exclude black scouts (BSA v. Dale). It is why a parade can exclude openly gay participants as a First Amendment issue, where they could not exclude based on color or gender (Hurley v. Irish-American Gay & Lesbian & Bisexual Group of Boston).

This is why working the legislative process is so much better than trying to do this via the judiciary. Win in the legislature and you have a real, honest to God win that shows a social consensus for equal rights.

[merlinpole.livejournal.com]

What the law says and what gets enforced, are often wildly different--just look at the circus of the Department of Justice the past eight years, the circus and spitefulness involved in even attempting to investigate anything from the chain of command in the outing of Valier Plame/Valerie Wilson, to the firings of federal prosecutors, to the issue of "torture".... the past eight years the misadministration of the country has been the worst ever, but with a majority in Congress either being synchophants or muzzled by intimidation or a misplaced sense of fair play/attempt at collaboration (Pelosi failing to comprehend the meaning of "collaborateur"....)or toadies to some degree or other wanting to favor crumbs of favor, Congress' interest in action/actions regarding changing the situation, have been minimal/ineffectual/hands-off.

Waxman and Kuicinich are among the few people in Congress I consider deserve respect in the situation, but they are a tiny minority. They have worked to change, and been squelched in almost every endeavor they've undertaken regarding investigation and prosecution....

[minerva-fan.livejournal.com]

Because they....well, I don't know. I've been consuming a diet of nastiness today--reading http://www.rightwingwatch.org too long. I'm blown away at how mean and horrible people can be, all on the basis of...otherness.

Dudes. Chill out. We don't want to "convert" your sons and daughters.

[dsmoen.livejournal.com]

I think they're all secretly afraid their spouses/SOs would leave them for a person of the same sex.

If so, then maybe their marriage is a sham after all.

Rick and I (and our parents) will be voting no on prop 8.

[merlinpole.livejournal.com]

Ted Haggerty and that congresscreep caught toe-tapping married the wrong people of the wrong sex....

[capplor.livejournal.com]

Might I suggest that someone, since the Mormons seem to be the one's most actively pushing this ban, propose a Constitutional amendment that would make any reference of Jesus landing in Mexico as being a anti-Christian belief. Or something like that.

It's no more discriminatory & it might just catch their attention.

And being Mormon is a bit more voluntary.

[duncanmac.livejournal.com]

While I am not sure there is any biological basis for homosexuality as such, that does not excuse discrimination of any sort. Discrimination has always been a slippery slope of sorts -- and I suspect it is the not-so-thin edge of a rather neo-conservative and authoritarian wedge.

Dislike (dare I say fear?) of the stranger or alien is the basis of this kind of campaign. Hoping these feelings are amenable to reason is like hoping the Nazis would be satisfied with the German borders established by Versailles, or like hoping businesses will accept a reduction in profits when they can use money to bend and abridge the laws to their sole benefit.

[tomlemos.livejournal.com]

I have three other gay brothers.

Trust me, it's biological.

[osewalrus.livejournal.com]

Wow! And you got a knowledge of genetics too.

All I got was this lousy t-shirt.

[figmo.livejournal.com]

You mean all of you didn't have some latent desire to be part of an oppressed minority? [g,d,rlh]

Seriously, I have a greater chance of being harmed by a plate of spaghetti than by a homosexual couple.

[nimuejohn.livejournal.com]

Exact same constitutional amendment is on the Arizona ballot this year. We soundly defeated a similar initiative a year or two ago, but our idiot state legislators had to put it back on the ballot again.

[tomlemos.livejournal.com]

The only response I can give the Yes on 8 folks is:

Please stop trying to put your religious morals and value judgments on state-sanctioned marriage.

[merlinpole.livejournal.com]

California politicians forced the sale of publically owned power plants in California to private businesses, which then sold the power from the plants to private customers paying special rates, which rates involve extremely large profits for power companies when the private companies consuming the power, don't cut consumption, or need extra power, for times when the customers have agreed to cut power consumption, or limit their power consumption to certain levels.

The politicians were getting perks for their actions selling out the public interest. The corporations which bought the power plants, made contracts to maximize their revenue--the agreements didn;t involve placing state of California as a priority, privileged, low power price customer.

[sffilk.livejournal.com]

The largest percentage of contributions monetarily is coming from the mormon cult. Salt Lake City has had at least 2 pronouncements read in church on Sundays telling people not only to support Proposition 8, but to contribute to it and to get people to support it by going around house to house in California. I've heard stories of people being taken to task by their local "ecclesiastical authorities" (I put the term in quotes because there is no training involved in becoming a mormon bishop or higher) because they do not contribute. In addition, there was the brouhaha about a straight mormon in the midwest who was sick and tired of the cult's support of Proposition 8 that he set up a website for mormons who agreed with him to send a letter to the cult's offices in Salt Lake City. He was almost excommunicated, then it appears that the court of public opinion may have delayed it because if and when it happens, it'll make the national news and show the organization to be what it truly is - a cult.

[terriwells.livejournal.com]

Here in Florida we feel your pain. On the ballot as a constitutional amendment to Article 1 is a new section: "This amendment protect marriage as the legal union of only one man and one woman as husband and wife and provides that no other legal union that is treated a marriage or the substantial equivalent thereof shall be valid or recognized." Here it's prop 2.

Needless to say, you see plenty of "No on 2" signs in Wilton Manors, basically the center of the gay and lesbian community. Apparently, the way the ballots are made up, Prop 2 is near the bottom...which has led to the amusing tactic of showing a buff bare male chest on a sign with the words "Go down...go all the way down" and at waist level an explanation of where to find prop 2 so you can vote no. If the antis had hoped that it wouldn't be noticed at the bottom, the approach backfired. lol!