1 Quiet down Californians, your black robed overlords are about to speak!

2 ... should survive the challenge on that issue at least.

I've heard that before. It's not like judges need some sort of legal or constitutional reason to overturn the will of the people.

3

So far I've had no luck finding a court that will overturn the 2008 presidential election.

4 I think the next prop needs to disestablish the CA supremes.

5

So far I've had no luck finding a court that will overturn the 2008 presidential election.

I think Alan Keyes is working on that.

6

The CA Supremes have already squashed on gay marriage ban by the voter initiative.  They will most likely do the same here. This is not that Volokh is wrong in his analysis but because the courts in CA are notoriously “outcomist”. They will decide in favor of the gays and will come up with some kind of ridiculous and irrational argument to support that decision. In the words of one other liar who was also a jurist, the Constitution means what ever I say it means.

7 People of CA, get ready to bend over and grab your ankles cause here it comes...

You are about to get a up close up view of the GHEY experience

8 I know it's not a popular opinion around here, but my take is that if different legal rights are granted to heterosexual married couples vs. same-sex couples then Prop 8 fails the equal protection clause. People have to be equal in the eyes of the law, period.

If you want marriage to be restricted to heterosexual relationships then that's doable, but you have to remove the differences in legal treatment first or create equal treatment through civil unions.

9 "...equal protection for minorities who have historically suffered discrimination."
Like me! I have been discriminated against by the NBA just because I am a guy under 6' tall who cannot sink a basket to save his life!

10

Oh, I hope they do overturn...you need a bloody shirt before you can wave the bloody shirt, so I need a really egregious case of judicial overreach so it can be better argued the time has come for major overhaul of the relation of court to people--with the court losing.

My most recent brainstorm--governor or President nominates, Senate or upper house confirms, but the people, in a referendum, ratify the justice--by 60%, not a simple majority. Or else the justice does not sit.

And ten year limits on the time approved justices can sit once ratified.

And an ability for legislatures to override opinions just as vetoes can be overriden, by the same supermajority.

That's right, law school overlords. You've had your fun, but play time's over...I think in a few years the people are going to want their constitutions back...

11 Erik, the differences in legal treatment have already been eliminated through civil unions. That's why when gay activists tell me I'm discriminatory, I tend to not take their criticism to heart.

This is purely about achieving their goal at the expense of the will of the majority, to no benefit to themselves other than to open other avenues of attack against religion and other private institutions. 

12 Arrrrgh, pirates are always discriminated against. I have yet to find a sea faring lass who resopnds favorably whenever I ask if she's prepared to be boarded.

13 In Alabama, Supreme Court Justices stand for election, just like the politicians that they are.

14

"They will decide in favor of the gays and will come up with some kind of ridiculous and irrational argument to support that decision. In the words of one other liar who was also a jurist, the Constitution means what ever I say it means."

 

Considering the majority of President -elect Obama's supporters  voted against Gay Marriage, something tells me the incoming President is going to experience a rather large back-lash.

Poor thing he is now stuck between a hard rock and a cement wall.

15 if different legal rights are granted to heterosexual married couples vs. same-sex couples then Prop 8 fails the equal protection clause

It's not popular because it's a fundamentally flawed reading of the equal protection clause.  The current definition of marriage applies equally to all adults - that includes both single adults, who are permitted to marry a suitable member of the opposite sex, and currently married adults, who are not permitted the option of taking an additional spouse.

If you seek to invalidate the traditional definition of marriage via constitutional means then what is the basis for restricting marriage to couples?

16 Don't the gays in CA have access to civil unions?  As far as I've read, Prop 8 just makes marriage a heterosexual union, but doesn't ban gays from entering into a civil union.

17

my take is that if different legal rights are granted to heterosexual married couples

 

BS false flag argument, they have the same right to get married to a woman as I have. They have EQUAL rights already.

18 Why am I not surprised that California jurisprudence would draw a striking distinction between "amendments" and "revisions" without making any effort to define either? Fortunately, I'm here to interpret:

"Amendment" = change.
"Revision" = alteration.

"Change" = variation.
"Alteration" = modification.

Clear now? The link to Volokh suggests that the difference between an amendment and a revision is that one is far-reaching and the other is not. So a direct vote of the populace is good enough for trivial change, but for far-reaching change see your legislature. They'll let you know when you're entitled to an opinion.

I don't even like Prop. 8 and I want to see California erupt in (figurative) flames over this.

19 This is purely about achieving their goal at the expense of the will of the majority, to no benefit to themselves other than to open other avenues of attack against religion and other private institutions.

It's primarily to get a sufficient number of states to acquiesce so that the remaining recalcitrant states will be forced by the SCOTUS to conform, in the name of Equal Justice.

20

I forget the circumstances, I think it was about taxes and may have been Nevada, but one states supreme court ruled that the states constitution was unconstitutional (meaning wrong).

You know if the courts are to just judge what is right or wrong on a case by case basis we really won't need lawyers anymore. Just sayin.

21 No way that this is overturned. All you need to do is look at the legal basis for challenges to the 18th Amendment Even though the criteria for passing it is different, it regulated behavior in the same manner and was defined as an amendment and not a revision to the text of the Constitution. Those who oppose Prop 8 in CA should be heartened by the rest of the story of the 18th Amendment; all the good timing that took place for the next 14 years, and the constitutional reversal.

22

To the Supreme Clowns of Californicate (and elsewhere),

An amendment to the Constitution is automatically constitutional. Period. The Constitution IS the yardstick. If we decide to change it to a metric stick then that's that. You do not look at the old stick to determine if the new stick is 'correct'. We picked a new stick - use it. Done.

(Part II) State Supreme Clowns do not have the power or right to look at the US Constitution for advice. Only the Federal Supreme Clowns can do that. Period.

[waiting for the penumbras of umbras crowd to log in, in 3... 2... 1...]

23

The Court will not overturn Prop 8 for the following reasons:

1... Oh, shit, it's California?

Never mind.

24 @xbradtc and soulpile - Yes, California does recognize civil unions at the state level, however, there are still differences in law at the federal level (for example, tax returns). Straighten that out and I have no problems with the people of California (I'm one of them) defining marriage any way they want. Until then, in my view Prop 8 is unconstitutionally discriminatory.

25 I actually have very good friends with strong views on both sides of this debate. The really stupid thing, in my mind, is that if the social cons thew other side a bone (no, that's not intended as a graphic metaphor) the situation is easily resolved.

Most gays are OK with having civil unions instead of marriage - if the laws granted them equal rights the issue would mostly disappear. After some frank discussions with my social con friends who are pro-prop 8, it's my opinion that for many of them in their hearts they believe homosexuality is evil and they enjoy using the law to punish people. They're free to disapprove of it to their heart's content, but using the law to punish people for their lack of belief in a tenet of one's religion is in my mind immoral, unconstitutional, and un-American.

26 ErikTheRed,
I don't really get your point. Nothing the states do will make any difference at the Federal level. "Gay Marriage" is recognized in Mass but those couples can not file jointly on their tax returns. The aren't married according to the Federal government. No state can address federal issues and vice versa so how could that make Prop 8 discriminatory?

27 Sorry Erik, never mind the question. Didn't realize you were trolling.

28

The "separation of powers" argument the district court wants addressed is misplaced.  As chuck in st. paul states in #22, the change in the California constitution is constitutional and the judge must apply it, as long as it is equally coextensive with the U.S. Constitution as to equal protection and due process as per the Supremacy Clause.  Rather, the properly framed argument is that the U.S. Constitution allows gay marriage (5-4 decision "NO" in the U.S. S. Ct., who's willing to bet?), thus the CA const. must as well.  I disagree with chuck on one point, in that the CA S. Ct. can apply the U.S. Const. to find as much, which the U.S. Supremes would undoubtedly finally arbiter on ultimate review.

29 Get ready to watch "we the people" get another hot poker in their collectives asses . . . courtesy of the left wing activist courts who each day burn another piece of somebody's constitution.

30

Most gays are OK with having civil unions instead of marriage - if the laws granted them equal rights the issue would mostly disappear.

Then why are they pushing for marriage and not just civil unions?  I don't think reality here is matching up with what you are saying.

I really do believe that if there was a push to eliminate marriage from the government and have all legally recognized unions as civil unions be they gay or straight you'd find more support from the "evil bigotted Christians" groups than you would from the "Gay Agenda" groups.

31 The will of the voters should take presidents over a bunch of dirty sleezie filthy putrid gay rights extremists and if again the imperial court over turns the will of the voters then its time we went there it tourches and pitch forks and burned down their towers of power

32

After some frank discussions with my social con friends who are pro-prop 8, it's my opinion that for many of them in their hearts they believe homosexuality is evil and they enjoy using the law to punish people.

This is juvenile.

If your parents told you "no you can't have that" were they "punishing" you?

As for marriage - no one has a constitutional right to be married (or, rather, have their marriage recognized by legal authorities). No one.

No one.

33

I know it's not a popular opinion around here, but my take is that if different legal rights are granted to heterosexual married couples vs. same-sex couples then Prop 8 fails the equal protection clause. People have to be equal in the eyes of the law, period.

Again, I must say "WTF?"

Sexual orientation is not a protected class.

I don't know why this is so godawful difficult. Sexual orientation is not a protected class.

Is banning convicted felons from voting or owning firearms a violation of equal protection? No. Because "felony conviction" is not a protected class.

EVERY LAW the government writes effects different people differently. The government cannot write laws that effect people differently on the basis of race, national origin, sex, or religion. These are protected classes.

Outside of the protected classes it can write laws that discriminate on whatever the fuck it wants. People with tattoos could be targeted by law.

34 After some frank discussions with my social con friends who are pro-prop 8, it's my opinion that for many of them in their hearts they believe homosexuality is evil and they enjoy using the law to punish people.

With "friends" like you, your friends need new friends. Why do you liberals have this compulsive need to lecture other people about what's in their hearts?

35

"I disagree with chuck on one point," - monsoon 28

In practice I agree with your point. However, the state can put anything in their Constitution they want and then the Federal Supremes can decide if it musters up to the Federal Constitution. For the state Supremes, they can only comment that this or that probably won't pass muster at the Federal level. Unless the state's constitution specifically empowers the state Supremes to decide based on the Federal Constitution they have no power or authority to block an amendment to the state constitution with the exception that two things that are in direct conflict cannot exist in the document - one or the other has to go. This was what I meant. I'm not sure if the Cal Assembly empowered the Supremes to do so. I doubt they did except by accident.

When the state Supremes say it doesn't jibe with the Federal Constitution, unless they have been specifically empowered, the Executive and Legislative branches can just ignore them and pass it off to the feds.

What's more likely is an olio of state and federal bits and pieces cobbled together to appear to authorize  the state Supremes to do what they really aren't authorized to do. Heck, we might even get bits of the EU charter and "world opinion" thrown in for good measure.

36 California does recognize civil unions at the state level, however, there are still differences in law at the federal level (for example, tax returns).

Tax law discriminates based on all sorts of criteria. For instance, you have to have some sort of income. That discriminates against half the country. Next, the tax code discriminates against people based on their income level, the number of dependents they have have, whether they own their own home, and a host of other factors. So it's pretty fucking mindless to say that it cannot discriminate against people based on their marital status. But fucking mindlessness is quickly become the norm in this country.

The Founders all believed that freedom and virtue were intertwined. And the most important virtue for the people to possess was a modicum of common sense. The entire purpose of the modern educational-government complex is to create abject idiots. Measured against that goal, it's a rousing success.

37 Does anyone know if a challenge in 2008 to the passage of prop 8 as an amendment would then be considered a "revision" to the constitution and require a 2/3 vote?

38 sorry, meant to say "a challenge in 2010"

39 This looks like the "change through judiciary" The Emperor was hoping for. You know, screw what the people want and voted for, we're going to overrule that by the courts. That this thing is even in court is a joke and should be a wak up call to every single person out there that what you decide means shit.

40

37 Does anyone know if a challenge in 2008 to the passage of prop 8 as an amendment would then be considered a "revision" to the constitution and require a 2/3 vote?

Of course not.  Your trying to apply normal logic to the idea.  You need to apply liberal logic.  That means the conservative stance requires the most difficult complicated path to be successful and the liberal stance requires the easiest quickest path.

41 I still believe that the best way to handle this is to take the sex out of civil unions.  Let any two people contract to be next of kin and codependents.  Two guys, two girls, two spinster sisters, a single guy and his single sister, a widow and her single daughter, whatever.

I tried to sell this idea to my Alabama State Senator at a town hall type meeting and he kept trying to tell me what he could do for me and my partner.  I didn't matter how many times I pointed out that I was married.  After each point someone raised he'd gesture toward me in an and-there's-nothing-wrong-with-that manner.

42 People have to be equal in the eyes of the law, period.

So, when a dudette in California wants to marry her sister, it's OK 'cause they're equal in the eyes of the law?

43 People have to be equal in the eyes of the law, period.

Then how come I couldn't vote two weeks ago.

44 People have to be equal in the eyes of the law, period.

Then how come I can't buy alcohol?

45 Then how come I can't buy alcohol?

Because you're doing it wrong

46 People have to be equal in the eyes of the law, period.

Then how come I don't get the same tax deductions as a married couple, someone with a kid or a homeowner?

47

The ideal thing to do is to get the government out of marriage all together. Go to a flat 10% income tax on all income regardless of source and with no deductions. Repeal ALL laws regarding marriage, community property, divorce, cohabitations, et al. Make economic agreements to live together a standard contract issue signed by both parties. No contract, then there is no division of goods. Anyone wanting the “old fashioned” wedding would negotiate with a priest but the government would not be part of it.  Note that child support would NOT be impacted by this because it is already not impacted.

 

But that is not going to happen.

 

The next best thing would be to tell all the gays to STFU, they already have the right to marry their choice of the opposite sex, as long as it is human and not to closely related.

48 Note that child support would NOT be impacted by this because it is already not impacted.

Actually Vic it would.  Children born to a married couple are presumed by the courts to be the parents.  Even if DNA shows this isn't true BOTH parents are still held legally and financially responsible for the child.  The state of California has held this consistently to keep these kids off state aid because the mothers refuse to divulge the true Father's name or just don't know it if their a skanky whore. Would the states allow  your civil contract if it stated that either party is only responsible for a child related to it by blood or adoption?

 

 If we went to this how many people would sign this contract when it would be likely to run to 100s of pages? Even less would if people started modifying it to suit to protect themselves ala a prenup.

I think your second suggestion has it right Vic.

49

Crab

 

My understanding is that most States REQUIRE the father to be named to be eligible for assistance and then he becomes liable, married or not. If CA doesn’t have this then they are stupid. I thought they did have it when I lived there but that was over 30 years ago.

50 I warned my gay friends going through the court is not the way to deal with this. It's what led to proposition 8 in the first place. If this gets overturned by a court things could get very interesting. And that's not a good thing.

51 Vic,
  The husband is named on the birth certificate as father. Only later does DNA reveal that he is not. The state doesn't care, he pays, forever. I am pretty sure CA is not the only state that does this. The only thing that could stop it is if the biological father can be established and put on the hook. But how is that done if the mother refuses?  What other evidence could be used to obtain DNA from the biological father? None. Unless the biological father steps up the husband is on the hook.
 
 _{*I am Crab, lousy sock puppets.}

52

OK, I see what the problem is. We are discussing two different scenarios here. I am looking at it from the standpoint of the mother NOT being married. In order to get benefits the father must be named.

Yes, if married the father is automatically assumed to be the one the woman is married to.

53 we need to quit kowtowing to a vocal minority that demands rights be created for them solely based on what they choose to do with their genitals.

54 The California Supreme Court are fond of butt piracy...In fact they are a major part of why this state is so messed up. I think we should sneak Barney Frank into the room when they are in session and lock the doors.

55 Hey Jones in CO:

Here's a rewrite of your sentiment if this were 1920 just after the 19th amendment passed:

we need to quit kowtowing to a vocal minority that demands rights be created for them solely based on their genitals.

56

Here's a rewrite of your sentiment

I have never seen a more blatant admission of strawman stuffing. 

Our trolls are all broken.  Can we get a recall?

57 Many of the illuminati proponents of the overturning of Prop 8 argue that it's a principle protest.  They argue this because through Civil Unions they have the same rights, they are allowed the same taxes, and are given the full and equal rights of a married couple.  This whole battle is degenerating to nothing but a fight over semantics.  Honestly I don't are either way, they know they're married even if it's a civil union and those against it can just pretend they're not there.

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