California Court to Decide Legality of Same-Sex Marriage Ban

reply to post by Benevolent Heretic

So, the Legislature may propose an amendment or revision IF there is a vote of 2/3 entered into the journal. Otherwise, they may not. The 2/3 vote is REQUIRED.

I believe your interpretation is incorrect. The legislature may propose an amendment if 2/3 vote to do so. Otherwise they may not. That part is true. But nowhere is it stated that this is a requirement for a proposal to be on the ballot. That is where your logic goes off track.

This only means that no grass-roots campaign to amend the California Constitution is required. A proposal may originate in the legislature, as specified, instead of by petition among the electorate.

Churches are already protected from this. They don't have to recognize any marriage they don't want to.

You are correct, but that lack of a requirement is due to the fact that legally, sexual orientation is not yet a civil rights issue. Declaring sexual orientation as a civil rights issue (which would be the precedent set here) would change that. It would then be akin to a church refusing to marry two people because of their race. Oh, can you just imagine the field day civil rights lawyers would have over that one?

If I decide to hire someone to perform a job for me, I can hire anyone I want to, right? Not exactly. I am prohibited by law from hiring someone based on a civil rights issue. I cannot deny someone a job because, say, they are of a certain race. I cannot deny someone a job because of their gender.

If I decide to sell my house, I can sell it to anyone I want, right? Not exactly. I cannot refuse to sell it to someone because of their race or gender. That is a violation of that person's civil rights, and I can be sued in court to force the sale. I can refuse to sell it to someone based on their religious affiliation. I cannot be (successfully) sued for that action, since religious affiliation is not a civil right. Should religious affiliation be declared by law to be a civil right, then all that would change and I would be at the same risk by denying the sale based on religious affiliation as I would for denying the sale based on race or gender.

This is not propaganda. For it to be propaganda, I would have had to see or hear it somewhere before asking the question. I thought of this aspect of the bill as soon as I heard about Prop 8 last year. Thus far, I have seen nothing in writing, nothing official, that prevents this from being a future possibility. If you have a link to a public legal document that affirms the right of any church to accept or not accept a legally-recognized marriage regardless of civil rights issues and requirements, or that affirms the right of a church or church official to refuse to perform a ceremony based on sexual orientation regardless of civil rights issues, then I would love to see it.

In law, if it is not written down in official documents, it does not exist.

Edit to add:
reply to post by desert

I'm beginning to conclude that a marriage defined as "between a man and a woman" continues to provide a refuge for some religious/non-religious people to say, "Look, I can't be gay, because I'm married to a woman/man!"

By George, I think you may have hit on something here. Human insecurity. Something we should never underestimate.

Good call!

TheRedneck


[edit on 6-3-2009 by TheRedneck]

Originally posted by Benevolent Heretic
And slavery was legal and black people couldn't marry and women couldn't vote. Ah... the good old days, eh?

not for me to say "good" or "bad", but if you want to "OWN" the founding fathers' thoughts as fact, Im suggesting gay marriages did not happen

Originally posted by TheRedneck
I believe your interpretation is incorrect. The legislature may propose an amendment if 2/3 vote to do so. Otherwise they may not. That part is true. But nowhere is it stated that this is a requirement for a proposal to be on the ballot. That is where your logic goes off track.

You're talking about an amendment. The legislature isn't needed for an Amendment. This is a revision. The legislature vote is required for a revision.

And the law agrees with me.

Revision Requires 2/3 Legislature Vote
Source 2
Source 3
Source 4

I could go on, but I wont.

I don't know how the Supreme Court will decide, but if they determine that Prop 8 is a revision instead of an amendment, then gay marriage will be reinstated. If they determine it's an amendment, it will stand.

reply to post by Benevolent Heretic


Source

Simply opinion, but it looks like some are thinking that Prop 8 will be upheld and the marriages that happened in California between May and November will be allowed to stand and remain valid.

Prop 8: Revision or Amendment?

The California constitution recognizes two types of changes: "revisions" and "amendments." The distinction, which is not elaborated in the constitutional text and barely explained in California state court decisions, matters a great deal because the state constitution places a higher hurdle in front of revisions than amendments. "Revisions" can be effected only through approval by two-thirds of each state house, followed by a majority vote of the people. "Amendments" can be effected by simple majority vote of the people, without prior legislative approval.
...
Prop 8 stripped (1) a fundamental right (marriage) from (2) a suspect class (gays). Because of the importance of these changes, they argue, it is thus a revision and not an amendment.

The following issues bearing on the revision/amendment distinction are raised: First, can a fundamental right be denied through amendment, requiring only a majority vote of the people? Second, can a bare majority target a suspect class by mere amendment? Either of these alone would present a novel issue for the state courts. (Important rights of criminal defendants were at issue in Raven v. Deukmejian, 52 Cal 3d 336 (Cal. 1990), though the court didn't call them "fundamental rights" and at any rate held that the case involved a revision.) Together, they're a double-whammy of constitutional change.

Interesting read.

It sounds like the courts are leaning in Favor of Proposition 8



Edit: Skeptic, I see you saw it before I did.

[edit on 6-3-2009 by Benevolent Heretic]

reply to post by Benevolent Heretic

There is no difference enumerated in Section XVIII of the California Constitution between an 'amendment' and a 'revision'. As I stated earlier, in law, if it is not written in an official document, it does not exist.

I read all four of your sources:

• michaeldorf.org... : the header states "Mostly law-related musings by Cornell Professor Michael Dorf and some of his lawyer/professor friends". This is not law, but rather legal theories. Legal theories can be anything, but they are not law until a court agrees with them, based upon existing law.
  
  
• www.americanchronicle.com... : Written by "UC Berkeley Department of Public Science Chairman Emeritus Eugene C. Lee". Another legal theory.
  
  
• www.pageoneq.com... : Op-Ed by Nick Cargo. But this one has something especially sinister in it:

  
  "Any major revision to the state Constitution should not be allowed to circumvent the legal system," said Assemblyman Ammiano. "The fact is, Proposition 8 was improperly instituted through the ballot process without legislative involvement.

  
  I call this sinister because the basis of law is not the legislature; it is the Constitution itself. Were it not for this aspect of the debate, I would not care one way or another what California (a state I hope never to visit again) wants to do concerning marriage. But when the Constitution itself is delegated to less than the legislature's will, all protections are gone. There are no more rights, no more freedoms, no more equality save what a group of Senators decide we will have. Senators are men, my friend, and as such are fallible and fickle. I beg all of California to not throw away the Constitution in return for dictatorial rulings from a select group of men who have shown throughout history to not have your best interests at heart.
  
  
• cityofdavis.org... : A copy of the minutes from a city council meeting. Inside, I found this little nugget:

  
  Article XVIII of the California Constitution provides different vehicles for amending and revising the Constitution.

  without any further explanation. Again, I mention the fact that section XVIII of the California Constitution, the section that addresses changes to the document itself, contains no enumerated difference between an 'amendment' and a 'revision'.

The easiest thing in the world is to get a lawyer to agree with you when you are paying him/her to do so. It is much harder to get his/her legal theory instituted into law through judicial interpretation. And it is even harder to thwart the solid will of a people. I have heard many such legal theories bandied about in various forums and op-eds since the passage of Prop 8. I believe it is telling how many of these legal theories exist and how quickly they change.

Well, one thing doesn't change: they all have absolutely no solid basis in law, only in the twisted writings of legal 'experts' that have nothing to do with reality.

Edit to add: I just saw the posts above about the court's apparent leanings. My condolences to you, as I understand this is a sensitive topic for you.

TheRedneck


[edit on 6-3-2009 by TheRedneck]

reply to post by Benevolent Heretic


It's the right decision. If it was on the ballot for election, despite the reasons, then the decision by voters should be upheld until the next election cycle when another amendment canceling this one can be brought to a vote.

In reading what the judges are actually saying - which isn't easy to understand if you are not a lawyer.

It does sound like they are telling the gay rights supporters to bring it up on the ballot again for vote.

It sounds like they are saying - if you want this - - then you have to do what the Pro Prop 8 supporters did - - get the majority vote and change the constitution.

It still should never have gone to vote.

Originally posted by TheRedneck
There is no difference enumerated in Section XVIII of the California Constitution between an 'amendment' and a 'revision'.

Yes there is. Section 2 says that to REVISE the Constitution a 2/3 vote of the legislature is required, but Section 3 says the the electors may AMEND the constitution (without a legislative vote).

From your first post in this thread:

California 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.
...
SEC. 3. The electors may amend the Constitution by initiative.

And thanks for your condolences. I am sensitive to the idea that we are all treated equally in this country. And proudly so. I am a patriot.

Originally posted by sos37
It's the right decision. If it was on the ballot for election, despite the reasons, then the decision by voters should be upheld until the next election cycle when another amendment canceling this one can be brought to a vote.

Well, we'll see if you feel the same way when the people vote for a gun ban or some other right or privilege is denied you because the majority voted on it.


[edit on 6-3-2009 by Benevolent Heretic]

reply to post by Benevolent Heretic

The difference I was referring to, which is not enumerated, is what constitutes a revision as opposed to an amendment. Without some definition of what is a revision as opposed to what is an amendment, the difference is, as previously stated, wordplay only.

My interpretation would be that the first three sections define ways that an initiative may be introduced. The fourth defines what is required for the initiative to be adopted. Under that reading, the only real difference between an 'amendment' and a 'revision' would be how it was initiated. Prop 8 would then be an amendment (initiated under Section 3) and legally passed as per the requirements set forth in Section 4 of Article XVIII of the California Constitution.

I do believe you to be a patriot, sir, or my tone with you would have been different throughout our exchange. Your interpretations deserve respect and consideration, even though I cannot agree with all of them. I have read your posts for quite some time and find them to be generally well-reasoned and logical. I simply cannot follow your logic on this one issue. No matter; I feel sure it is there, if hidden from these old eyes.

Until we cross words again, my best to you and yours.

TheRedneck

Originally posted by Walkswithfish
The day any court voids the vote of the people on ANY issue which a majority have voted on will be a bad day for democracy as a whole.

Sorry but that happens all the time... it's called checks and balances...


Remember... we do not live in a Democracy, but a Democratic Republic.


This happened before when segregation was outlawed in stark contradiction to the majority of voters in the south who voted to keep it.

Originally posted by Benevolent Heretic
And slavery was legal and black people couldn't marry and women couldn't vote. Ah... the good old days, eh?

Not only could women NOT vote... they were labeled as INSANE for protesting this in front of the whitehouse.


Yep, women were demonized in the same way, and in others much worse as what is happening now. Every side who is being protested against WILL ALWAYS act smug and as if the problem is all in the heads of those protesting...

With all the schools proposing to be closed,these idiots are going to further waste the tax dollars on something that was voted on,I'm real sick of gay people now,they have no regard for anyone but themselves,move someplace else you can't seem to follow rules,this is why people hate gays,they think they are special

Originally posted by Oldtimer2
With all the schools proposing to be closed,these idiots are going to further waste the tax dollars on something that was voted on,I'm real sick of gay people now,they have no regard for anyone but themselves,move someplace else you can't seem to follow rules,this is why people hate gays,they think they are special

Ever tried looking in a mirror?

I think it would be a good idea.

Originally posted by skeptic1
reply to post by Oolon

 

I hope they throw that out. Until someone can tell me exactly how a gay marriage adversely effects your relationship with your hetro spouse, I think 8 was pure hate.

That's what I wonder, too.

And, I've yet to get an honest answer to that question.

From my Mormon roommate (I'm not religious), his honest answer:

The issue, as he sees it boils down to religion, and the state's attempt to force churches to recognize and perform gay marriages, which goes against God's teachings, thus the church is opposed to.

So, in my roommate's eyes, the issue comes down to whether the state can force churches to perform marriages that their faith tells them is WRONG and is not allowed.

IE, by forcing a church whose religion opposes or disallows gay marriage to HAVE TO perform gay marriages, the state is forcing the church to violate its own internal "laws" / "guidelines."

THAT is what the issue boils down to. It's understandable from within the church / religious mindset and from a theological point of view.

I'm NOT saying that being gay is right or wrong. I'm simply stating how various churches think and what the issue MEANS TO THEM.

Essentially it means A) "My religion forbids performing gay marriage." B) "The state says gay marriage is permissible and that we MUST allow gay marriages." C) The two notions are incompatible philosophically / theologically. The church cannot both FORBID and ALLOW gay marriages.

It kind of boils down to a church versus state issue. Never the twain shall meet. The state should not endorse one religion over another. The state should not try to enforce or rewrite theological positions. The church should not try to rewrite state legislation / judicial decisions.

The question is how to resolve such a thing. IE, allow churches the right of refusal to perform a ceremony between gays, if their church forbids it. But allow civil judges (or churches NOT opposed to it) to perform the ceremony and recognize the union under the law (for the purposes of spousal support, insurance, inheritance / property transfer upon the untimely death of a spouse, etc.).

Anyway, that's my understanding of the issue. Again, I'm not religious, I generally support freedom of choice and the non-intrusion of government into people's personal lives (don't tell people who to love or live with, or who they can / can't have sex with in private between consenting adults). Just passing along the impression gleaned from someone on the other side of the issue.

Regards,
~Michael

reply to post by mgmirkin


The thing is, though, churches are already protected against that. They are private institutions....religious institutions. They don't HAVE to marry anyone. They can refuse (like a Catholic church refusing to marry a couple when one is not a practicing Catholic).

So, in reality, that argument holds little to no water.

My husband born and raised Mormon has officially resigned from the church.

He was taught from birth that Mormons do not force their belief on anyone.

Originally posted by sos37
reply to post by Benevolent Heretic

 

It's the right decision. If it was on the ballot for election, despite the reasons, then the decision by voters should be upheld until the next election cycle when another amendment canceling this one can be brought to a vote.

And then what? This election cycle it's legal, next election cycle it's illegal? Maybe it should be legal on odd numbered years and illegal on even-numbered...

No, methinks there needs to be some kind of a final ruling on what is / isn't constitutional and what it means in terms of enforcement and/or rights (or lack thereof). What is the balance between those for and against.

Does the state have the right to tell churches to perform rites and ordinances that go against their faith? IE, the church cannot both FORBID gay marriages AND ALLOW gay marriages. The state does not have the right to re-write the bible or the Koran or other religious doctrines. But it seems to be what some are trying to do, if not overtly / directly... That's what the church-goers seem up-in-arms about. Is there a compromise where churches are not REQUIRED to break their own internal "laws" in order to appease an external secular "laws," but where gay unions or marriages can still be recognized by the secular "state" in terms of property rights, inheritance, insurance for spouses, etc.? This really does boil down to a "state vs. church," "secular vs. religious" issue...

That seems to be the way the debate should be framed. At least insofar as I understand the issue. As others have said, gay unions don't negatively impact hetero unions already in effect. What people do in the privacy of their own homes is nobody else's business. Who you marry is none of my business. Who I share a bed with (or not) is none of anybody else's business, and I'll thank church AND state from staying out of my bedroom (and everyone else's).

Regards,
~Michael Gmirkin

Its totally bogus that churches are forced to marry anyone or will ever be forced.

Many marriages are performed in court. Marriage is nothing more then a legal government license to combine and protect individuals persons and property.

"Churches will be forced to marry gays - and gay sex will be taught in elementary schools" - - - - was the million dollar focused media blitz - - that was run the week before the election.

Its false and should nullify the vote - - - due to false propaganda campaigning.

Originally posted by mgmirkin
The issue, as he sees it boils down to religion, and the state's attempt to force churches to recognize and perform gay marriages, which goes against God's teachings, thus the church is opposed to.

Thanks for explaining that. As others have said, that's not an issue. The state can't force a church to marry anyone. And the state of Cali made no attempts at it. That's the propaganda that the Pro-Prop 8 (anti-gay marriage) folks pushed to scare people, but it's a fantasy.

Even I would strongly oppose forcing a church to perform or recognize ANY marriage that they didn't want to.

The question is how to resolve such a thing. IE, allow churches the right of refusal to perform a ceremony between gays, if their church forbids it.

They already have that and always have.