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Thread: Court: CA gay-marriage ban is unconstitutional

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by DiAnna View Post
    So would I, since it's unconstitutional as hell. Unfortunately, the current SCOTUS leans right and I'm very much afraid they will not use the constitution as their basis for determination.
    I'm actually not too afraid of this. Despite still being subject to partisan leanings, the Supreme Court is faced with a lot of other challenges. They're not appealing to constituents for reelection. They're often writing for posterity, and to maintain the integrity of the court as an institution. They can't really allow it to become very partisan, because there's no way back once they cross that line. I feel fairly confident that the Supreme Court would protect same sex marriage.

    Quote Originally Posted by Ontologuy View Post
    Specifically, what is it, constitutionally, that makes Prop 8 unconstitutional? I'm not saying that it isn't unconstitutional, I just want to know what the specific part of the Constitution is that makes it unconstitutional.
    So glad you asked, Angel.

    Banning same sex marriage violates the constitution because, as has been discussed in this thread, it applies the protections of marriage to some couples and not others, solely on the basis of discriminating against homosexuals. If there is going to be a law that affects the liberties of some people and not others, especially ones directly involving the government, there must be some compelling external reason. This is how the Equal Protection Clause of the 14th Amendment works. The law, both federal and state, is not allowed to arbitrarily discriminate. If it wishes to discriminate, it must prove that it has a good reason. No such reason has ever surfaced.

    Quote Originally Posted by digsbe View Post
    States have the right to ban gay marriage. This should be preserved and not infringed upon especially after it was presented to voters who chose to define marriage between a man and woman.
    No, they actually don't. Not since 1868. A voter initiative to strip some citizens of their rights is no more constitutional than one to ban mixed race marriages, prohibit people from wearing the color yellow, or outlaw the practice of Jainism.
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Rhapsody1447 View Post
    If SCOTUS upholds this ruling does that mean that all state bans on SSM will be overturned?
    Not necessarily. They tailored the ruling to be very narrow. The California Supreme Court ruled that gays have a right to marry. Prop 8 was then passed. The ruling in this case was that the right to marry was taken away and they based their ruling on that. States where SSM is not considered a right now could be unaffected by this ruling, depending on how SCOTUS rules.
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    Quote Originally Posted by Fiddytree View Post
    Uh oh Megyn...your vagina witchcraft is about ready to be exposed.

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    Re: Court: CA gay-marriage ban is unconstitutional

    Not surprising, popular opinion shouldn't trump the rule of law.

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by LuckyDan View Post
    If I understand you correctly, you are saying that the state has a burden to prove the value of traditional marriage. And if Smith is correct, it does not.
    No, I am not saying that, and in fact this is not the case. The backers of Prop 8(the state in theory, but not actuality in this case as the state declined to support prop 8 in court) have the burden of showing that there is at least some evidence that there would be a negative impact from SSM. Simply believing it would is not enough, you have to have a rational reason to believe it.

    Smith takes exception to the majority's reliance on Romer, and his arguments are quite rational. He delineates the differences between Colorado's Amendment 2 (Romer) and Prop 8 very clearly, and concludes
    Correct, and his arguments regarding whether Romer is applicable are fine, and beyond my level of knowledge of the law to comment on. The word rational is used strictly in reference to the level of scrutiny. I am not saying his arguments are irrational.

    Regarding CA law respecting child rearing and the optimal parenting rationale
    I find it unlikely that SCOTUS will be swayed by this argument.

    Regarding the appropriate level of scrutiny
    Rational review is the lowest possible level of scrutiny that would apply, and it is quite likely that a higher level of scrutiny would in fact apply. A large number of legal scholars believe that strict scrutiny would be appropriate in this case. If I had to guess, I would guess SCOTUS would see it as Intermediate scrutiny. SSM bans clearly fail under strict and Intermediate scrutiny, and probably fail under Rational Review. The original judge in this case rules that it should be treated as Strict scrutiny, but that the Amendment failed under rational review so did not look further. The two judges who upheld his ruling agreed, so the question of the level of scrutiny appropriate has not yet been ruled upon.

    Then this in closing
    I do not know enough on the case referenced to comment.
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    Quote Originally Posted by Fiddytree View Post
    Uh oh Megyn...your vagina witchcraft is about ready to be exposed.

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by digsbe View Post
    States have the right to ban gay marriage. This should be preserved and not infringed upon especially after it was presented to voters who chose to define marriage between a man and woman.
    So far the courts have disagreed with this assessment, and with very good reason. Further, the question becomes what happens when DOMA is struck down? Can a state refuse to accept another states marraige? The potential problems with that are huge.
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    Quote Originally Posted by Fiddytree View Post
    Uh oh Megyn...your vagina witchcraft is about ready to be exposed.

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Redress View Post
    Not necessarily. They tailored the ruling to be very narrow. The California Supreme Court ruled that gays have a right to marry. Prop 8 was then passed. The ruling in this case was that the right to marry was taken away and they based their ruling on that. States where SSM is not considered a right now could be unaffected by this ruling, depending on how SCOTUS rules.
    Wouldn't the SCOTUS ruling that a SSM ban is unconstitutional force all states to be accordance with the constitution? How could CA legally issue a proposition that it's own Supreme Court already deemed illegal? I'm not a lawyer, just trying to understand how this would work if the SCOTUS declared a ban on SSM unconstitutional.
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    Re: Court: CA gay-marriage ban is unconstitutional

    If I were you pro gay marriage people I would not count my chickens on this issue. The 9th circuit court is the most liberal, left wing circuit court who have a huge portion of their decisions overturned by the SCOTUS which I predict will happen here by a 5-4 decision and all gay marriages in California will be voided.

    It really is sad when the people speak activist judges can overrule their will.
    Last edited by Navy Pride; 02-07-12 at 07:42 PM.
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Rhapsody1447 View Post
    Wouldn't the SCOTUS ruling that a SSM ban is unconstitutional force all states to be accordance with the constitution? How could CA legally issue a proposition that it's own Supreme Court already deemed illegal? I'm not a lawyer, just trying to understand how this would work if the SCOTUS declared a ban on SSM unconstitutional.
    Once some one has a right, it becomes harder to take it away. Whether those without that right have to be given it is a separate issue.

    The California SCOTUS ruled it unconstitutional under the California Constitution, hence amending the constitution.

    If the US SCOTUS rules that all such bans on SSM where illegal, then no state could have such a ban. However, that is not the only way they could rule while overturning Prop 8 and finding with the lower courts.
    We became a great nation not because we are a nation of cynics. We became a great nation because we are a nation of believers - Lindsey Graham

    Quote Originally Posted by Fiddytree View Post
    Uh oh Megyn...your vagina witchcraft is about ready to be exposed.

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Navy Pride View Post
    It really is sad when the people speak activist judges can overrule their will.
    That's partially because we are not a strict democracy, but rather a democratic republic. There will always be challenges of this nature and need to be, the majority cannot infringe upon the rights of the minority and we review cases as such. Perchance the SCOTUS will reverse it, but that is the process we have. The majority is not king.
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Navy Pride View Post
    If I were you pro gay marriage people I would not count my chickens on this issue. The 9th circuit court is the most liberal, left wing circuit court who have a huge portion of their decisions overturned by the SCOTUS which I predict will happen here by a 5-4 decision and all gay marriages in California will be voided.

    It really is sad when the people speak activist judges can overrule their will.
    Proof once again that activist judge = one who rules in a way you don't like. Come on NP, like last time, I dare you to show me where in the ruling you disagree with the judges reasoning. Will you accept the challenge this time, or will you avoid it again.
    We became a great nation not because we are a nation of cynics. We became a great nation because we are a nation of believers - Lindsey Graham

    Quote Originally Posted by Fiddytree View Post
    Uh oh Megyn...your vagina witchcraft is about ready to be exposed.

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