OK, so several years ago California voters approved a proposition that effectively banned gay marriage. Gay rights groups (shouldn’t that be “gay lefts groups”?) promptly file suit with CA Supremes to block enforcement and got the initiative overturned. Gavin Newsome, mayor of SF, promptly started marrying homosexual couples.
So, this past election cycle the voters of CA approved an amendment to the CA Constitution defining marriage as “one man, one woman”.
Case closed, right?
Bzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzt! Wrong.
Enter the lawyers.
From the Associated Press
SAN FRANCISCO (AP) – California’s highest court agreed Wednesday to hear several legal challenges to the state’s new ban on same-sex marriage but refused to allow gay couples to resume marrying before it rules.
The California Supreme Court accepted three lawsuits seeking to nullify Proposition 8, a voter-approved constitutional amendment that overruled the court’s decision in May that legalized gay marriage.
All three cases claim the measure abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.
As is its custom when it takes up cases, the court did not elaborate on its decision.
Note, the Supremes didn’t accept ONE challenge, they took THREE. Think maybe they’re just groping for a reason to invalidate another ballot proposition? The Justices pretty much have an open field on this one. As in no precedent.
…the cases present the court’s seven justices—six of whom voted to review the challenges—with complex questions that have few precedents in state case law.
Bottom line, they can probably do pretty much whatever they want. This one will be interesting. First of all, remember that in CA their Supremes are elected. I don’t know what the cycle is, but I do know they are on the ballot. They can also be recalled. I would certainly hope that if they overturn another election the CA voters will get even.
Moe Lane
Steve Maley
Dan McLaughlin
Neil Stevens
Daniel Horowitz
They will likely suffer the fate of Rose Bird if they overturn.
stang (Diary) Wednesday, November 19th at 7:18PM EST (link)And deservedly so.
Link
“Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge which God hath provided for all men against force and violence.”
John Locke
That big tent
SteveLA (Diary) Wednesday, November 19th at 7:28PM EST (link)mbecker
This is one of those “big tent” issues that all Republicans should agree with, and it’s actually one of the roots of the Republican brand in the South.
Moderate Republicans like myself do not like Judaical overrides of the public will or jurist legislating from the bench. I became a Republican in the South because of forced busing and the overreach of the Federal judiciary into states rights. The issue of forced busing imposed by the Judiciary was in my view one of the starting points for the modern Republican party in the South. Democrats, or at least Democrats post 1968 and the death of the Dixiecrats supported forced busing, Republicans did not.
Social conservatives have their own issues with gay marriage in the traditional cultural sense, in addition to the judicial overreach issues.
This is one of those “Big Tent” issues that will serve to reunite the party instead of dividing it I think.
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Competency over ideological purity and litmus tests
So when it is a tyranny?
DONTREADONME (Diary) Wednesday, November 19th at 7:42PM EST (link)NT
Gee, I don't know. What do you think about that?
mbecker908 (Diary) Wednesday, November 19th at 7:51PM EST (link)And, what should be done about it.
How can the constitution be unconstitutional?
David123 (Diary) Wednesday, November 19th at 7:52PM EST (link)If these judges strike down the constitution, the foundation of all the laws, they are making this a nation of men not laws – totally arbitrary.
David123
Technicality
SteveLA (Diary) Wednesday, November 19th at 8:00PM EST (link)David
The argument now before the CA Supremes is about a technicality. Was Prop 8 and amendment, or a revision. There are different rules for both, and the case is to determine if Prop 8 was a revision instead of a amendment.
From what I read, the argument is pretty weak, but the CA Supremes are too weak to just make summary finding and throw the No on 8 out on their ear.
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Competency over ideological purity and litmus tests
I'm more pessimistic re: Calfornia voters
Spiral (Diary) Wednesday, November 19th at 8:20PM EST (link)California voters have moved so far to the Left, despite their 52 to 48 endorsement of Prop 8, I wonder if they will vote to remove a State Supreme Court Justice based on an adverse ruling on Prop 8.
Also, the Governor appoints the replacement if a Jusitice is removed by the voters.
So, as long as Californians continue electing Democrats and RINO Republicans to the Governor’s office, the replacements will be just as bad as those removed from office.
But it’s worth a try ’cause that all Californians have.
The Obama Bread Lines
A state constitutional provision can violate the federal law
JSobieski (Diary) Wednesday, November 19th at 8:27PM EST (link)or the state constitutional provision could have been enacted through a defective procedure.
You do raise a good point however, Some idiot law school classmate of mine once argued that an amendment against flag burning violated the first amendment.
My rules of the road for primary season.
Rule #1: Vote for YOUR first choice in the primaries
Rule #2: Vote for the R in the general.
Rule #3: Don’t let anyone convince you to violate Rule #1 or Rule #2
Rule #4: When in a center-right argument, reaffirm Rules #1-#3–it will help us all to get along better.
Rule #5: If you are using the language of the left, you probably aren’t furthering conservativism
Rule #6: The priority is issues first, candidates second, and supporters third. Nobody is bigger than the issues. Conversely, if you spend your time focusing on supporters, you are wasting everyone’s time.
STOP THE MADNESS!
A reduction in the rate of spending increases is NOT a cut!
In-state tuition for illegals is NOT amnesty!
Requiring someone to pay their medical bills is NOT an individual mandate!
Reducing tax rates is NOT a tax increase!
Constitutional?
redalert (Diary) Wednesday, November 19th at 8:28PM EST (link)You’re right that the argument is weak. I live in San Francisco so I’m going to be writing several diaries on this. About 75 million dollars was spent on this proposition and now that they lost the opponents of Prop 8 are trying to overturn the will of the voters on a technicality. The original Prop 22 had stated that marriage was between a man and a woman. This was ruled unconstitutional in May. By the SAME court that is now going to rule on Prop 8. The difference is that this time Prop 8 put the definition of marriage into the California constitution. So now those pushing the gay agenda are suing because they claim that Prop 8 is not just an amendment to the constitution,it is a revision. The reason they want that,is that a revision requires a two thirds majority to take effect. That,of course,would invalidate the will of the voters since it would be impossible to get two thirds of voters to agree on anything,much less on the definition of marriage. They also want the court to rule whether a minority group’s rights can be decided by voters or by judges. That’s why there are so many different suits. A lot of legal experts think the arguments are weak and the judges will not throw out Prop 8 like they did Prop 22. Let’s hope they are right. About six weeks before the election the opponents of Prop 8 were leading by 18 percentage points. I didn’t hear any of them complaining then that this was unconstitutional. They were dancing in the streets of the Castro in those days. Stay tuned.
Federal Court
SteveLA (Diary) Wednesday, November 19th at 8:35PM EST (link)JSobieski
Then it would be a Federal court case, this is the State of California Supreme court, they can’t rule on the Federal Constitution.
Don’t forget the Federal DOMA, it’s next.
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Competency over ideological purity and litmus tests
To the contrary, State Courts must enforce the U.S. Constitution
JSobieski (Diary) Wednesday, November 19th at 8:38PM EST (link)The Supreme Court can make rulings based on the Federal Constitution, but those rulings are then subject to subsequent review by the U.S. Supreme Court.
For example, take a look at the death penalty cases.
My rules of the road for primary season.
Rule #1: Vote for YOUR first choice in the primaries
Rule #2: Vote for the R in the general.
Rule #3: Don’t let anyone convince you to violate Rule #1 or Rule #2
Rule #4: When in a center-right argument, reaffirm Rules #1-#3–it will help us all to get along better.
Rule #5: If you are using the language of the left, you probably aren’t furthering conservativism
Rule #6: The priority is issues first, candidates second, and supporters third. Nobody is bigger than the issues. Conversely, if you spend your time focusing on supporters, you are wasting everyone’s time.
STOP THE MADNESS!
A reduction in the rate of spending increases is NOT a cut!
In-state tuition for illegals is NOT amnesty!
Requiring someone to pay their medical bills is NOT an individual mandate!
Reducing tax rates is NOT a tax increase!
Strait vote
SteveLA (Diary) Wednesday, November 19th at 8:38PM EST (link)redalert
I voted for Prop 8, based on my objections to the way 22 was overturned. If put to a strait vote of the people through the imitative process, not sure how I will vote.
That’s where the moderate vers social conservative split if there is one exists out here in CA. This state also passed stem cell research funding, I voted against that based on fiscal concerns, not the moral objections.
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Competency over ideological purity and litmus tests
Supreme Court
redalert (Diary) Wednesday, November 19th at 8:53PM EST (link)The U.S. Supreme Court has never ruled on marriage as it affects gays. I doubt that they would get involved. So the California Supreme Court can’t use any federal ruling in their decision.
My point was generic
JSobieski (Diary) Wednesday, November 19th at 8:59PM EST (link)(1) State courts can and do make rulings on the basis of Federal statutes and the U.S. Constitution
(2) A state court can use the U.S. Constitution, a U.S. Statute, or even a federal regulation to overturn a state constitutional provision
(3) Couple (1) and (2) with the willingness of courts to make stuff up (see Roe v. Wade) and whammo . . . you have a big mess
My rules of the road for primary season.
Rule #1: Vote for YOUR first choice in the primaries
Rule #2: Vote for the R in the general.
Rule #3: Don’t let anyone convince you to violate Rule #1 or Rule #2
Rule #4: When in a center-right argument, reaffirm Rules #1-#3–it will help us all to get along better.
Rule #5: If you are using the language of the left, you probably aren’t furthering conservativism
Rule #6: The priority is issues first, candidates second, and supporters third. Nobody is bigger than the issues. Conversely, if you spend your time focusing on supporters, you are wasting everyone’s time.
STOP THE MADNESS!
A reduction in the rate of spending increases is NOT a cut!
In-state tuition for illegals is NOT amnesty!
Requiring someone to pay their medical bills is NOT an individual mandate!
Reducing tax rates is NOT a tax increase!
Agree
redalert (Diary) Wednesday, November 19th at 9:13PM EST (link)I agree with you on the last point. That’s my one fear. I doubt they will do it,but it is possible that the judges will claim that they found a “right” in the state Constitution that allows gays to marry and thus will throw out Prop 8. By the way,they ruled that gays can NOT marry any more until the court rules. The experts think a ruling will not come until March at the earliest.
Sic semper tyrannus...
azaeroprof (Diary) Wednesday, November 19th at 9:13PM EST (link)at least Virginia has it right (though, it may be telling that Virginia’s main web page displays ‘Virginia is for Lovers’ but not the seal with ‘sic semper tyrannus’).
Geez, why doesn’t the CA supreme court just declare that they have the right to amend the constitution, amend it to give all power to the judicial branch, and just save us from all of this messy political stuff. Wouldn’t have to worry about Ah-nold, those fickle voters, or even the return of ‘Moonbeam’ Brown as Gov.
With States Rights come States Responsibilities
David123 (Diary) Wednesday, November 19th at 9:27PM EST (link)Every state that entered the Union defined marriage as one man + one woman. Utah was forbidden to become a state until it defined marriage correctly. Thus, states have an implied duty to define marriage correctly: one man + one woman.
David123
I'm more optimistic
gensec (Diary) Wednesday, November 19th at 10:13PM EST (link)I agree that the threat of being thrown off the California Supreme Court by voters isn’t likely enough to influence any of the judges. Even without that pressure, I expect the court will uphold Proposition 8, maybe 5 to 2. But I wouldn’t bet much money, since this involves predicting how lawyers think.
The original court vote to enact same-sex marriage was 4 to 3. Thus the 6 judges wanting to hear the challenges against Prop 8 includes at least 2 of the 3 who voted against imposing gay marriage. That suggests they’re hearing the challenges because the marriage issue is important enough that they should be promptly decided one way or another, not necessarily an itch to overturn Proposition 8.
While finding some text in the CA constitution that could be construed as mandating same sex marriage certainly took some creative literary skills for all 4 justices who voted that way, it would take even more bizarre literary deconstruction to conclude that the simple text of Proposition 8 is a “revision” rather than an amendment that can be enacted by voter referendum. I think the 4 judges who voted for same sex marriage wanted some minimal basis to rationalize to the enactment of their policy preferences as upholding the text of the California Constitution. The challenges to Proposition 8 have even less of a fig leaf for ignoring the constitution’s plain text, so I expect at least 1 of those 4 justices to vote to uphold Proposition 8, thus defeating the challenge.
As policy, I favor legal recognition of same sex marriage, but it should be enacted democratically, not by lawless judges. I’m optimistic on policy too. The vote for Proposition 8 was pretty close, 52-48, with younger voters voting overwhelmingly against it. It won’t be many election cycles before enough older voters have died off, replaced by new voters not bothered by some gays being legally married, that a proposition enacting same sex marriage will be passed by California voters.
Great Question
DONTREADONME (Diary) Wednesday, November 19th at 10:16PM EST (link)I wasn’t being facetious.
I have always wondered at what point is the constitution, null and void? At what point is a State Supreme Court overstepping its bounds by overturning voter approved propositions.
I guess I am asking this because every time a conservative-type proposition is passed such as marriage is solely between a man and women; we are constantly battling the court to keep them from overturning the voters.
Quite often we lose, so the people vote again for it and we take it back to the court again and we get the same result.
Just down right frustrating…