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Will CA do the right thing and overturn Prop 8?

Will the CA courts overturn Prop 8?

  • Total voters
    27
Goldwaters said:
You'd get the satisfaction of demonstrating how compassionate Conservatives are towards thier fellow humans.
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So I'd be lying....we don't care about gay couples, so I wouldn't pretend that we do.
 
jallman said:
We aren't discussing the US constitution and the Bill of Rights. We are discussiong the California Constitution.
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Same principle applies. Amendments, by their nature, modify existing parts of the constitution. No conflict is possible as the amendment always takes precedence.
 
Goobieman said:
Wouln't these people be more accurately referred to as 'anti-gay marraige forces' rather than 'anti-gay forces'?

After all, I dont think The Obama is anti-gay.
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Oh, my bad, I left out the "marriage" on the second post. And I don't understand the Obama comment. Are you trying to imply that Obama had something to do with the California court decision?

BTW, Obama's stand on gay marriage is one of the three major dissapointments I have with him. But that's another topic.
 
jallman said:
Except where they contradict one another.
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This is absurd.

An amendment, by definition, is an alteration. It is, if you will, a changing of the mind--or, in the case of a constitution, of the expressed will of the people. If an amendment runs counter to a previously articulated statement within a constitution, the inevitable construction is that the amendment removes/alters that statement, so that the application of the law going forward conforms to the amendment and not the original un-amended language of the constitution.

For this reason, it is structurally impossible for an amendment to violate anything within a constitution. It cannot be done, not under any circumstances. A constitutional amendment may be morally wrong or suspect, but it cannot ever be "unconstitutional." An unconstitutional constitutional amendment is a contradiction in terms.

Thus, the only challenges to amendments are procedural ones. California's Constitution is somewhat unusual in that it draws a distinction between amendments and revision, placing a requirement of legislature involvement for a revision. The court rulings I have referenced earlier in this thread (Livermore, Amador, and Mcfadden) establish the distinction as being one of scope, determined by several factors including the length of the amendatory/revisory language, the number of sections of the constitution impacted by the language, and the significance of the impact of the language.

What is most important to realize about procedural challenges is that they are intrinsically arbitrary; there is no principle of common law one can draw upon to ascertain what "should" be the just outcome--indeed, there is no "just" outcome at all, but merely an affirmation of whether the established procedures have been followed or no. In the matter of Proposition 8, the only justiciable question before the court was whether the language was revisory in nature, in which case the matter would have been improperly presented to the electorate and would of necessity be invalidated on basis. Once the Court held the language was not revisory in nature, the potential for overturning the electoral outcome was nil.

One can plausibly argue that justice and fairness call for validation of gay marriage. One cannot plausibly argue that Proposition 8 and its rejection of gay marriage is unconstitutional.
 
Goobieman said:
Same principle applies. Amendments, by their nature, modify existing parts of the constitution. No conflict is possible as the amendment always takes precedence.
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No, not the same principle. If it was, then lawyers would not have to pass bars for individual states.
 
Goldwaters said:
Oh, my bad, I left out the "marriage" on the second post. And I don't understand the Obama comment. Are you trying to imply that Obama had something to do with the California court decision?
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No. Just making sure you understand that The Obama is, by your definition, "anti-gay marriage" -- which it appears that you do.

OK on the accidental omission - -just wanted to confirm that you weren't trying to equate anti-gay marriage to anti-gay.
 
jallman said:
No, not the same principle. If it was, then lawyers would not have to pass bars for individual states.
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Yes, its the same principle, and it applies wherever constitutional amendments are found. Amendments, by their nature, change existing text, regardless of specific wording to that effect. I suggest you look up 'doctrine of implied repeal'.

Can you cite a single instance within the US where an amendment to a constitution was ruled unconstitutional on the basis of it conflicting with an existing portion of said constitution, under the agument that said amendment did not contain specific language that deletes/overrules/overrides that existing portion?
 
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Goobieman said:
No. Just making sure you understand that The Obama is, by your definition, "anti-gay marriage" -- which it appears that you do.
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You say that like it's supposed to affect my support for Obama if I didn't know it. I know a freighteningly large number of Obama supporters and many of them are gay, it's Northern Cal hey!. In my observations that fact has not eroded any support for him.
Goobieman said:
OK on the accidental omission - -just wanted to confirm that you weren't trying to equate anti-gay marriage to anti-gay.
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I try not to point it out because in reality it's just a generalization. But I suspect the line between "anti gay" and anti gay marriage" is a lot more blurry than anti gay marriage proponents are willing to admit to themselves.

Almost all of the people in my life who have expressed anti gay marriage sentiment...have also at one point or another over the years expressed anti black, anti gay, chauvanistic, and anti hispanic thoughts. Even though...I prefer honesty even if it comes in the form of bigotry, racism, or sexism over people harboring resentments, and then denying them and venting them in other childish ways.

Just being honest about what I see, and I'm not accusing you of anything Goob.
 
Goobieman said:
Yes, its the same principle,
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No, it is not. The argument has been presented right here in this very thread as to how California's amendment process differs from the federal amendment process.
 
Goldwaters said:
You say that like it's supposed to affect my support for Obama if I didn't know it. I know a freighteningly large number of Obama supporters and many of them are gay, it's Northern Cal hey!. In my observations that fact has not eroded any support for him.
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Yes... and why is that?
Just curious -- seems to me like that if gay marriage is of significant interest to you - especially if you believe that not allowing same-sex marriage violates peoples' basic rights -- that you'd have difficulty supporting someone that opposes your position.

I try not to point it out because in reality it's just a generalization. But I suspect the line between "anti gay" and anti gay marriage" is a lot more blurry than anti gay marriage proponents are willing to admit to themselves.

Almost all of the people in my life who have expressed anti gay marriage sentiment...have also at one point or another over the years expressed anti black, anti gay, chauvanistic, and anti hispanic thoughts.
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I guess I need to ask -- to you, what is an 'anti-gay' position?
That gays should not exist? Or what?

Just being honest about what I see, and I'm not accusing you of anything Goob.
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Understood :)
 
jallman said:
No, it is not.
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You're going to have to do a LOT better than that.

Can you or can you not cite a single instance within the US where an amendment to a constitution was ruled unconstitutional on the basis of it conflicting with an existing portion of said constitution, under the agument that said amendment did not contain specific language that deletes/overrules/overrides that existing portion?

That is, can you cite an example in the US where a court ruled against the doctrine of implied repeal?

The argument has been presented right here in this very thread as to how California's amendment process differs from the federal amendment process.
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None of which has anything to do with the issue you and I are discussing.
There was NO question before the court as to whether or not the relevant amendment of the CA Constitiiton overrides the existing text of the CA constitition; the ONLY question is as to if the correct procedure in amending the CA constitition was followed. That issue doesnt support your argument in any way.
 
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jallman said:
Not really. It's already been done in this thread.
You're gonna have to read a lot closer.
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I'll take that as a "no" to my question, and that you indeed cannot cite an example of where you are right.
 
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Goobieman said:
Yes... and why is that?
Just curious -- seems to me like that if gay marriage is of significant interest to you - especially if you believe that not allowing same-sex marriage violates peoples' basic rights -- that you'd have difficulty supporting someone that opposes your position.
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When I decided who I was going to vote for in 2008, I considered several social issues, gay marriage, abortion, stem cell research, and supreme court nominee likelyhoods. Gay marriage is the only social issue he's let me down on. I was unsure about Obama and the economy, but McCain continuing the Bush policies scared me more. So...there you have it. If you eliminate the noise from Conservatives and conservative media Obama's not in a terrible situation.
Goobieman said:
I guess I need to ask -- to you, what is an 'anti-gay' position?
That gays should not exist? Or what?
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Being anti gay has nothing to do with legal decisions or the legality of gay marriage. To me, if you feel gays are making a choice to be gay just to ignore your sensabilities, or they are in league with satan...you are anti gay. Furthermore...if you think a same sex orientation is unatural you are anti gay. JMO Sir.
 
Goldwaters said:
When I decided who I was going to vote for in 2008, I considered several social issues, gay marriage, abortion, stem cell research, and supreme court nominee likelyhoods. Gay marriage is the only social issue he's let me down on. I was unsure about Obama and the economy, but McCain continuing the Bush policies scared me more. So...there you have it. If you eliminate the noise from Conservatives and conservative media Obama's not in a terrible situation.
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Is there a single issue that -would- have caused you to not support The Obama?

To me, if you feel gays are making a choice to be gay just to ignore your sensabilities, or they are in league with satan...you are anti gay. Furthermore...if you think a same sex orientation is unatural you are anti gay. JMO Sir.
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So, 'anti-gay' means to 'oppose the idea that homosexuality is natural and normal'?
 
Goobieman said:
Is there a single issue that -would- have caused you to not support The Obama?
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Any three of the four social issues would cause my support for Obama to grow thin. But the alternative was McCain and that nitwitt Palin where it was four out of four against. At that point I would know more about what it felt like for a Republic to have McCain as a candidate...where you simply dislike your guy less than the other guy.
Goobieman said:
So, 'anti-gay' means to 'oppose the idea that homosexuality is natural and normal'?
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Eliminate the word normal and I'll stand behind the quote. Normal is too subjective of a term.
 
Goldwaters said:
Eliminate the word normal and I'll stand behind the quote. Normal is too subjective of a term.
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OK -- fair enough.
I'm not sure how that equates to 'anti-gay', however.
It does equate to 'anti-the-idea-that-homosexuality-is-natural' but not anti-gay.
 
jallman said:
Except where it violates prior points of the constitution without overturning them.
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That is just a contradiction. It simply means the constitution now contradicts itself. It would be simply a silly situation where two parts of the constitution say two completely contradictory things. It is not for a court to decide which is the more important point, it is for the legislature and people to try and work out the contradiction. But presumably such a situation, minus judicial activism, is unlikely to occur if sensible amendments are made.

A court should not decide on a rare situation like that but if it were to then it would make more sense that it did in line with the amendment as this is the later change of constitution meant to establish something new but in such a situation obviously having screwed up.
 
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Goldwaters said:
The Prop 8 amendment violates Article 1, Section 1, of California's Constitution, which enumerates "inalienable rights" to, among other things, liberty, happiness and privacy.
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Meh. Its not about any of those things. No one can stop you from being happy. If you want to marry someone invite your family and friends to a sunny field and say the words and the deed is done like its been done for thousands of years. No one is stopping anyone.

This is about its about 2 things
Money and seeking the approval of other people.
It is pretty difficult to get people to approve you taking their money in the form of state or federal taxes/tax breaks. Seeking the approval of others is a bad road to take anyway. Take Obama lessons I guess. Hes got it down.
 
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Goldwaters said:
The Prop 8 amendment violates Article 1, Section 1, of California's Constitution, which enumerates "inalienable rights" to, among other things, liberty, happiness and privacy.
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Oh for God's sake.

You might as well just get rid of the constitution, rule of law, legislature and hell even the executive and simply replace it with a liberal committee on public safety with those kinds of arguments.

Exactly what the judiciary could not decide by that kind of logic is hard to see.
 
I haven't read every post in this thread and I'm sure that there are several that are off topic. I would like to say though that the courts got it right. Be for or against gay marriage, the rule of law and our system of government was victorious today and as Americans we should be proud. California rarely gets it right, but with this and the recent propositions on the ballot being voted down, there appears to be hope.

As I've stated before, gay marriage will be legal one day soon in every state. I don't agree with the Constitutional amendment banning gay marriage, but I do respect that the process was followed and it played out as it should have.
 
Wessexman said:
That is just a contradiction. It simply means the constitution now contradicts itself. It would be simply a silly situation where two parts of the constitution say two completely contradictory things.
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But, that's not the case here. The amendment, being an amendment, overrides anything already in the constitution that contradicts it, and so there can be no contradiction.

Never mind that this was not the question before the court.
 
Goobieman said:
But, that's not the case here. The amendment, being an amendment, overrides anything already in the constitution that contradicts it, and so there can be no contradiction.

Never mind that this was not the question before the court.
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That would make sense of course, otherwise what is the point in the amendment.
 
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