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Will CA do the right thing and overturn Prop 8?

Will the CA courts overturn Prop 8?

  • Total voters
    27
jallman said:
And I find your comments lacking. If the amendment creates a situation counter to previous amendments or clauses without specifically repealing those amendments or clauses, it was enacted improperly. Now if it had contained language specifically making previous sections null and void, then I could see your argument holding water.
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Have you citations to support your argument?
 
The addition of a new section in and of itself would not rise to the level of revision under the Amador and McFadden standards. Proposition 8 does not explicitly alter any other section of the California Constitution.
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The section I quoted and proposition 8 are mutually exclusive. Thus passing 8 would completely revise that section.

The proposition is extremely brief--a mere 14 words of statutory language. Per the Amador and McFadden standards, the brevity of the initiative suggests the initiative is indeed the amendment it purports to be, rather than the revision some claim it to be.
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The length of proposal is irrelevant. Suppose I added the amendment "the police can search your house whenever they like". It is only 9 words, but would you agree that is a major revision to the constitution?

I do not see the contention of conflict with Article I §7(b) as being persuasive, because the statutory language of Proposition 8 does not apply unequally on the basis of race, ethnicity, nor even sexual orientation.
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Using spirit of the law arguments, obviously prop 8 discriminates against homosexuals. However, even using the strictest technical definition, prop 8 is gender biased. Prop 8 would prevent a man from marrying a man. Since woman have the privilege of marrying men, it violates the equality cause. Simultaneously, men are allowed to marry women, while women are not. Either way, it doesn't pass.
 
RightinNYC said:
Just saw this:

Costa v. Superior Court, 37 Cal. 4th 986 (2006)
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Indeed, I saw that as well. From what I have gleaned thus far, I do believe the Supreme Court denied the petition on Proposition 8 without comment. To my mind, that suggests a greater reliance on Brosnahan rather than Costa. I would be leery of imputing an implied interpretation of Proposition 8 as an amendment rather than a revision based on Costa.
 
celticlord said:
Have you citations to support your argument?
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They were already given to you by another poster. I am not interested in revisiting that unless you have something new to add to counter it.
 
rathi said:
The section I quoted and proposition 8 are mutually exclusive. Thus passing 8 would completely revise that section.
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They are not mutually exclusive. Proposition 8 does not fail to apply the law unequally.

rathi said:
The length of proposal is irrelevant. Suppose I added the amendment "the police can search your house whenever they like". It is only 9 words, but would you agree that is a major revision to the constitution?
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The length is relevant when assessing whether the statutory language is revisory in nature under the McFadden standard. Amador does not invalidate McFadden but expands the potential for language being revisory to include scope. In fact, Amador addressed your point directly.

The relevancy is that it eliminates potential grounds by which the statutory language may be considered revisory. The scope argument you raise with your example I addressed further in my post.

rathi said:
Using spirit of the law arguments, obviously prop 8 discriminates against homosexuals. However, even using the strictest technical definition, prop 8 is gender biased. Prop 8 would prevent a man from marrying a man. Since woman have the privilege of marrying men, it violates the equality cause. Simultaneously, men are allowed to marry women, while women are not. Either way, it doesn't pass.
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"Spirit of the law" always ends up sounding like "substantive due process"--which was a judicial mistake in Dred Scott v Sanford and again in Roe v Wade, and it would be a mistake here.

The gender equality argument is tortured reasoning at best. Further, that argument hardly has at this juncture judicial standing, given that California law SB777--the "gender identity" law--is being constitutionally challenged even as we speak.
 
jallman said:
They were already given to you by another poster. I am not interested in revisiting that unless you have something new to add to counter it.
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The only court rulings cited in this thread are by myself and RightinNYC. None of them defend the argument you put forward.
 
celticlord said:
The only court rulings cited in this thread are by myself and RightinNYC. None of them defend the argument you put forward.
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I didn't say court rulings had been cited. However, others have promoted an argument that I agree with and citations were used. I have nothing more to add to their arguments and am simply stating that I find yours lacking.
 
jallman said:
I didn't say court rulings had been cited. However, others have promoted an argument that I agree with and citations were used. I have nothing more to add to their arguments and am simply stating that I find yours lacking.
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A pity...because their arguments so far are wholly lacking in substantive foundation. Was hoping someone would be willing to step up and put some meat on the rhetorical bones.
 
celticlord said:
Proposition 8 amended the California State Constitution. It cannot be overturned as being unconstitutional. If the courts overturn, they are rewriting the constitution; that is beyond the competence of every court.
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I am sorry, but you really don't understand the legal issues here.

Was prop 8 an amendment or a revision? That is one of many very complicated legal issues including equal protection.

CA supreme court is a right leaning court, but they are also strict constructionists.

We'll know in 48 hrs.

It was very clear that they will not be annulling the 18,000 gay marriages legally performed last year.

The right thing many not be the legal thing to do. They are smart and fair justices.
 
celticlord said:
A pity...because their arguments so far are wholly lacking in substantive foundation. Was hoping someone would be willing to step up and put some meat on the rhetorical bones.
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Are you a lawyer? If so what area do you practice in?
 
The relevancy is that it eliminates potential grounds by which the statutory language may be considered revisory. The scope argument you raise with your example I addressed further in my post.
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Where? The length of laws are generally irrelevant. Some bills can make bigger changes in 1 sentence than others do in 100 pages. The fact that most laws are written in legalese doesn't help either. Propositions have to read by voters, so they are almost always shorter than comparable laws passed by legislature.

"Spirit of the law" always ends up sounding like "substantive due process"--which was a judicial mistake in Dred Scott v Sanford and again in Roe v Wade, and it would be a mistake here.
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The point of that passage was to prevent unwarranted discrimination, which is exactly what prop 8 does. However, I posted my gender based argument if you wanted to play by technicality.

The gender equality argument is tortured reasoning at best.
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Its perfect reasoning. Technically speaking, my statement is 100% correct. You wanted to ignore spirit of the law, now you face the result. You can't ignore spirit of the law only when its easy for you.

Further, that argument hardly has at this juncture judicial standing, given that California law SB777--the "gender identity" law--is being constitutionally challenged even as we speak.
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It applies to children in school, who don't have the same constitutional protections as adults. Schools can violate children's rights if it is needed. It has no applicability to the rights of adults.
 
rathi said:
Its perfect reasoning. Technically speaking, my statement is 100% correct. You wanted to ignore spirit of the law, now you face the result. You can't ignore spirit of the law only when its easy for you.
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Once more again in English? You are defending a technical argument with the "spirit of the law"? Might we keep the arguments a tad less schizophrenic?
 
celticlord said:
A pity...because their arguments so far are wholly lacking in substantive foundation. Was hoping someone would be willing to step up and put some meat on the rhetorical bones.
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You have successfuly pointed out the shortcomings of any court decisions that might be made against the amendment. I was wondering how the generally accepted notion that gay marriage will eventually be allowed in all 50 states affects your views if at all?
 
celticlord said:
The rule of law can only be upheld by sustaining Proposition 8. The assertion that it creates special classes of citizens may be charitably described as unpersuasive.
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What you are failing to account for, let alone address, is
  1. The assertion by anti-prop 8 people that the proposition makes a fundamental change to the constitution.
  2. If it does so, then the California Constitution (the law) requires that the 2/3 majority of the legislature of California approve a constitution convention to consider the change to the California Constitution, which we can all agree did not happen.
  3. Therefore, the only way to uphold the rule of law, is to require that prop 8 undergo consideration for a vote for approval in the California Legislature, which, if performed will either be rejected for a vote or will otherwise fail to receive the necessary votes, and the amendment will be invalidated - based entirely on the laws of California.
Your opinion as to whether the proposition creates special classes is irrelevant. Your opinion as to whether denying existing rights to a specific group of people constitutes a revision or an amendment would be relevant.

If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw - it removes a protected constitutional right - here, the right to marry - not from all Californians, but just from one group of us. That's too big a change in the principles of our constitution to be made just by a bare majority of voters.

Legal Challenges Filed Against Prop 8 | PEEK | AlterNet
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What they are saying here is that changes to existing rights which profoundly affect lives of people depending on those rights is a revision, not an amendment. Address that issue, and you will have spoken to the crux of the entire matter. On a side note, it is no use bringing up the issue that the womans right to free speech would be protected by the US Constitution, since that is also irrelevant: The question as to whether the attempt to remove her rights was a revision would remain, regardless.

The relevant portion of the law is:
CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION


SEC. 2. The Legislature by rollcall vote entered in the journal,
two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to
revise the Constitution. If the majority vote yes on that question,
within 6 months the Legislature shall provide for the convention.
Delegates to a constitutional convention shall be voters elected from districts as nearly equal in population as may be practicable.

http://www.leginfo.ca.gov/.const/.article_18
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If the outcome of the case is that Prop 8 is merely an amendment, then the CA Constitution will be fundamentally flawed. There will be no real guarantee of any rights within that state Constitution: All rights will be subject to a simple majority vote, which is no guarantee of rights at all.

The Proposition 8 opponents recognized that their argument was a "novel" theory, but argued that the court had never had the opportunity to consider such a case in the past. "A guarantee of equality that is subject to exceptions from the majority is no guarantee at all," argued Therese Stewart, on behalf of the city of San Francisco. "Our founders would not have allowed this to be done by amendment," said Stewart, arguing that Proposition 8 has to be interpreted as a revision because protection of minority rights from amendment by a simple majority is part of the structure embedded in the California Constitution. Justice Carlos Moreno responded to this argument, pointing out that prior case law had never held that the distinction between "revision" and "amendment" could not be expanded beyond the court's prior definition.
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So, either changing rights is an amendment, and rights can therefore be rescinded by a simple majority of voters, or changing rights is a revision, and as such requires a convention.
 
Once more again in English? You are defending a technical argument with the "spirit of the law"? Might we keep the arguments a tad less schizophrenic?
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My first argument was that Prop 8 violates the spirit of the law by discriminating against homosexuals. However, I anticipated you would argue based on technicality. Thus, I posted a second argument that shows how prop 8 violates 7b by technicality.

Regardless of which philosophy you want to choose, prop 8 is incompatible with the current California Constitution.
 
Dezaad said:
What you are failing to account for, let alone address, is
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This is factually incorrect. I have accounted and addressed that very thing, across multiple posts in this thread, applying the extant standards of the California Supreme Court (in particular the Amador and McFadden rulings) to illuminate how Proposition 8 is not revisory in nature.

Your repeating of the text of the California Constitution adds nothing to your argument. What support have you that the interpretations of the particular sections you assert are valid interpretations under California law?

Or dare I take your acknowledgment that Proposition 8 opponents are advancing a "novel" theory as an admission that you have no such support?
 
rathi said:
My first argument was that Prop 8 violates the spirit of the law by discriminating against homosexuals. However, I anticipated you would argue based on technicality. Thus, I posted a second argument that shows how prop 8 violates 7b by technicality.
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If you could back that argument up with a few court cases, then we have something to discuss.
 
Goldwaters said:
You have successfuly pointed out the shortcomings of any court decisions that might be made against the amendment. I was wondering how the generally accepted notion that gay marriage will eventually be allowed in all 50 states affects your views if at all?
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You really should have done some research on the other gay marriage threads first, then you would know my position.

My personal view is that marriage regulation of any kind by the government is an intrusion by the government into people's private lives. My personal view is that there is no valid purpose advanced by government regulation of the sacrament of marriage. My personal view is that marriage is more properly characterized as religious and not civil in nature, and thus any marriage law of any kind is a violation of the First Amendment to the United States Constitution, which precludes the passage of any law respecting the establishment of any religion (and which proscription the Fourteenth Amendment extends to the state level).

I oppose efforts to legalize gay marriage because I see in that an endorsement of government regulation of marriage, which is something I am decidedly against. Do not legalize gay marriage; end civil marriage in its entirety.

That being said, I also oppose using the judiciary to accomplish law which cannot be obtained in the legislature or at the ballot box. I have no qualms with laws validating gay marriage save those I have stated here. I have major qualms with courts and judges validating gay marriage in spite of the law.

Even if all other 49 states permitted gay marriage, Proposition 8 as constructed and voted is a permissible amendment to the California Constitution, per the applicable standards of California law.
 
If you could back that argument up with a few court cases, then we have something to discuss.
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In case you haven't noticed, this entire thread is about a court case that has yet to be decided.

Asking for impossible evidence just shows that you haven't found any flaws in my arguments.
 
jallman said:
Maybe the CA courts will set a great precedent here.
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Novel precedents generally make for bad law. It is one reason courts are institutionally reluctant to stray far from prior rulings.

For better or worse, Proposition 8 is properly constructed to amend the California Constitution. For that reason, the California Supreme Court should not invalidate it.
 
rathi said:
In case you haven't noticed, this entire thread is about a court case that has yet to be decided.

Asking for impossible evidence just shows that you haven't found any flaws in my arguments.
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I am not asking for impossible evidence. I am asking you to advance a substantive argument rather than posting and reposting your own personal opinion on the matter.
 
I am not asking for impossible evidence. I am asking you to advance a substantive argument rather than posting and reposting your own personal opinion on the matter.
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The court will decide on Tuesday which of us is correct. Until, then neither of us has anything but our opinions. You haven't cited any relevant cases supporting your opinion either.
 
hazlnut said:
I am sorry, but you really don't understand the legal issues here.
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If you go back and read the thread, it's pretty evident that he has a better grasp on the actual issue than 99% of the rest of this thread.

CA supreme court is a right leaning court, but they are also strict constructionists.
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lolwut
 
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