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Gay Marriage Dims in California (3/2009)

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Gay Marriage: Is California's Supreme Court Shifting?


Thursday, Mar. 05, 2009

The prospects of same-sex marriage in California grew dimmer Thursday, when two Supreme Court justices who helped create the right for gays to marry in last year's historic decision expressed deep reservations about attempts to strike down a statewide referendum passed last fall to ban the practice. "You would have us choose between these two rights: the inalienable right to marry and the right of the people to change their constitution," said Justice Joyce L. Kennard, one of those two key judges. "You ask us to willy-nilly disregard the right of the people to change the constitution of the state of California. But all political power is inherent in the people of California."

The justices created the right to marry same-sex partners in California last year in a sweeping 4-3 decision. But in November, Californians went to the polls to amend the constitution to prohibit gay marriage. The amendment passed with 52% of the vote, but protests spread throughout the state in the days immediately after the vote. Several groups sued, arguing that stripping away the right to marriage amounted to such a serious change to the constitution that it should require more than a simple majority vote.

Chief Justice Ronald George, the Republican justice who authored last year's opinion, appeared to agree that the barrier to constitutional amendments is far too low in California, noting that the Golden State has seen fit to amend its constitution no fewer than 500 times since 1911, while the U.S. Constitution has survived more than 200 years with just 27 amendments. But like Kennard, who had also voted with the majority to establish the right to gay marriage last year, George seemed to suggest Thursday that until the people of California raise the barrier for amendments, the court has little power to overturn their decisions.

That line of thinking was exactly what Kenneth Starr, the former Whitewater independent counsel who is now dean of Pepperdine Law School, had in mind when it was his turn to argue against overturning Prop. 8. Starr is serving as counsel to supporters of traditional marriage who received permission to argue on the initiative's behalf when it became clear that Attorney General Jerry Brown would most likely support efforts to strike down Prop. 8. "The issue before this iconic court has to do with the sovereignty of the people of California," Starr said. "We have heard a lot about individual rights and suspect classification ... But the Attorney General's office points to one inalienable right, the right to marry. But the people, too, have an inalienable right to change their constitution."

When questioned, Starr conceded that his view of the state constitution would permit a simple majority of the voters to repeal any right enshrined in the state constitution, including the right to free speech or a prohibition against racial discrimination. "While it is unthinkable," he said, "... the people do have the raw power" to make whatever changes they desire, so long as they do not alter the basic structure of government. Changes that violate the U.S. Constitution, he added, would of course be struck down on federal grounds, but so far no federal appellate court has ruled that the U.S. constitution protects gay marriage.

The court can take up to 90 more days to issue its ruling, and questions during oral arguments do not always accurately reflect the thinking of individual justices. But Thursday's three-hour session did indicate that the primary argument advanced against Prop. 8 faces big hurdles in the court. Even the lawyers who are asking the court to declare Prop. 8 invalid because it is more like a constitutional revision ? which would require approval by lawmakers as well as by voters ? conceded, when asked by the court, that there is essentially no precedent in the court's history that directly supports their position. "We have a pretty well established body of law pertaining to what is and what is not a revision, and those decisions do not give strong support to your position that the people couldn't do when they did when they invalidated or disagreed with one aspect of the marriage decision," Kennard said. "Our past decisional law doesn't support the argument that the people couldn't do what they did."

But a second argument, advanced by Attorney General Brown, is that the most important rights found in the constitution are inalienable and not subject to changes by a simple vote of the majority, because they are too important. That argument, too, seemed to suffer under scrutiny from some justices, who asked how the court was supposed to figure out how to draw the line between rights that can't be taken away and those that are subject to amendment.

The hearings did offer hope for the 18,000 or so same-sex couples who have already married. Starr argued that the language in Prop. 8 means that no gay marriages, even those performed when the practice was legal, can be recognized by state authorities. That argument brought a bristling reply from several justices, who said such a ruling would violate basic notions of fairness. Still, such opposition doesn't guarantee that the court won't strike down the existing marriages. Given that three justices voted against gay marriage in the first place, it may be that all Starr needs to win on that point is to convince a single justice that Prop. 8 should be applied retroactively.


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I'm incredibly bummed-out about this, because I figured it was a fait accompli for the Supremes to overturn the recent anti-Gay marriage vote from last year (narrowly won by just 4% of the votes).

This guy Kenneth Starr is the biggest putz on two feet. God, what I wouldn't give for a large sock, filled with manure...

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Much like kids who have kids, yet know nothing about parenting, voters who vote, yet know nothing about fairness, are a pox upon humanity. The real fault here, when all is said and done, is ignorance, pure and simple, and those who, bleating, follow the others.

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As a professional courtesy to Pecman...

Never hit a sh*thead with crap. It only makes them stronger and they don't mind the smell.

Use two socks and fill them with nickels. That'll smack yo byach up.

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When questioned, Starr conceded that his view of the state constitution would permit a simple majority of the voters to repeal any right enshrined in the state constitution, including the right to free speech or a prohibition against racial discrimination. "While it is unthinkable," he said, "... the people do have the raw power" to make whatever changes they desire, so long as they do not alter the basic structure of government.

This seems to indicate that there is a deeper lack of understanding of human rights versus the democratic vote, along with an even deeper misunderstanding (and concern) that the majority is somehow always correct. It ain't necessarily so.

If democracy can side step basic human rights to repeal the right to free speech or to impose racial discrimination, then we had better decide very soon just how far we want the democratic vote to go in overriding reasoned argument supported by substantiated fact.

This issue is clouded with emotion, and swamped in personal belief systems of many people. What a mess!

Unfortunately there is more at stake here than just gay marriage. The threat to human rights borders on mob rule, if not the fascist rather than the democratic form of government.

The justices should know this and overturn the Prop 8 result.

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When questioned, Starr conceded that his view of the state constitution would permit a simple majority of the voters to repeal any right enshrined in the state constitution, including the right to free speech or a prohibition against racial discrimination. "While it is unthinkable," he said, "... the people do have the raw power" to make whatever changes they desire, so long as they do not alter the basic structure of government.

Wow! Does that make me want to stand up and scream!

So a simple majority decides that it doesn't like all these Asians we have here because times are getting hard, jobs aren't available for people who need them, and someone sees a way to do something about this. He gets the notion if we just didn't have so many Asians working here, there's be more jobs for everyone else. We then get to vote on this, and can decide, democratically, that Asians aren't entitled to jobs that anyone else wants. All it takes is 50.001% of the vote, and it's a done deal.

I didn't think discrimination like that was legal. I guess I was wrong. Any group that's a minority had better start worrying.

This just isn't right.


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No Cole, it isn't right. I agree with you.

We have seen the rise of this type of thinking in our own State (South Australia) being pursued by our current right-faction Left-wing government.

It really does concern me to see religious "moderates" swinging behind the tools of fear and hatred to dismantle the safeties of our justice system. Yet there are areas now where effectively, you are guilty until you can prove yourself innocent. You can be held against your will without being charged, you can be locked up and fed drugs so that the court, on your arraignment, will believe you are a drug user or mentally challenged. You may be ordered to not associate with people of similar interests even though you have not been charged with any crime. The media has no sense of responsible reporting, treating an accused as if guilty before trial. Vengeance by victims is given priority over doubtful evidence or mitigating circumstances. There are others but that should suffice to show what is occurring.

I cringe every time I hear the phrase, "If you have done nothing wrong, you have nothing to fear," because I know whenever I hear it we are about to lose another civil liberty, lose another recourse to justice, or hear another fabrication of danger to society for which spiteful minds make no effort to understand alternative solutions.

The horror is that they make it all sound so reasonable.

How long before we hear a magistrate say: "Have the defendant walk across the bed of glowing red-hot coals, if his feet do not blister then he is innocent of the crime of defending human rights?"

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Twenty seven amendments to the U.S. Constitution.

500 amendments to the California Constitution.

That pretty much says it all. Our forefathers used common sense in acknowledging that logical and reasoned thought should not give sway to mob rule. The public is fickle and easily manipulated. Individual prejudices should never be allowed to over-ride basic human rights. It is time that the California legislature grow a set of balls and revamp the amendment process. Too many people there are swayed by Governor Terminator's anti-gay marriage rhetoric.

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This is probably one of the most controversial and difficult cases that the CA Supreme court has ever had to deal with. There are so many legal issues at stake that it is mind boggling. Hell, David and I argued about it tonight.

The idea that the electorate can change the state Constitution is a fact in California, but also the doctrine of equal rights come into play. The court cannot discount the fact that the voters have a right to revise or amend their constitution as they will, but they also realize that the majority does not have a right to trample on the human rights of ANY minority. It's fact that they know that the majority can be bigoted, and the court has stepped in on a few occasions to state that.

This is an emotional issue. We're emotional about it because it involves what we perceive as our right, our human right to be part of the greater America and the world of human beings. The opponents feel deeply in their religion or what their paradigm taught then that this is wrong and should be banned. It's not a legal issue, but I don't know where else to fight. Truth is...we need to be more visible, to let the world know that we live next door to them and we're not a threat.

Another issue is whether it's a constitutional amendment or revision. This is important because if it's an amendment, it must satisfy the idea that it changes the structure of California government. I think they see it as another change to the constitution of CA that doesn't require any further action.

We may lose this. Not on a human rights issue, but on a legal issue of how the California Supreme Court sees the legal issue involved. I think Cole is right in that the Court is extremely liberal, but the argument for gay marriage was weak. It didn't address the constitutionality of it. This is the law, and that's what the justices have to look at.

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Truthfully, I might be more inclined to agree with legal support of Prop 8, if it weren't for all the money and effort thrown at the Californians from outside their state. The interference from outside sources seriously skewed the voting, and I feel that in all probability it does not reflect the feelings of most Californians before the publicity blitz. Maybe what is needed is not a ruling on the legality of Prop 8 itself, but on how the process was conducted, and maybe an official revote on the issue ordered, with judicial order than none but those residing in CA may even voice an opinion or support one side or the other with money or publicity.

Anyway, as minority person, I'm glad I'm not living there.

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Trab, I think you're right. I don't think most Californians agree with the decision on Prop 8, but they didn't vote.

But this a legal issue that has a lot of implications for the way California runs itself, it's not just our rights. This is going to be tricky. They have 90 days to respond.

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...in that the Court is extremely liberal...

I'd like to make one correction to what you said, Richard. The California Supreme Court is split 4-3 with a conservative majority. It is not extremely liberal. That's why it was such a surprise when they overturned proposition 22 last year on a 4-3 vote. There was a swing vote that made that possible.

Colin :shock:

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