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?