Same-sex marriage ban wins; opponents sue to block measure

reply to post by skeptic1


Yes, at least we will see the start of the legal battles again.

Wouldn't Prop 8 have been checked for it's "Constitutionality" before it was ever allowed to get on the ballot?

All three cases claim the ban 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.

We will see what the courts try to legislate this time.

Pretty hard to change the Constitution with an amendment if you claim they don't have the authority to do so in the first place.

reply to post by TheRedneck


We are getting way off topic here so I will try to address your last reply as briefly as possible .

If I am asked if I believe in god I would say this . No , I dont . Because all the promises made by the 'god' of your bible just dont pan out . They are merely the empty promises of a fallible dellusional warlord .

But life is beautifull , Mother nature is my source of joy and admiration .
So you could say I worship nature except I dont worship on my knees , I just think its wise to live in harmony with nature

Originally posted by pavil

Wouldn't Prop 8 have been checked for it's "Constitutionality" before it was ever allowed to get on the ballot?

The reason that Prop 8 is unconstitutional is because it eliminates the rights of same-sex couples to marry. It is the 'elimination' of rights that is at issue.

Prop 8 was on the ballot during the last election because the groups behind the initiative got enough signatures to place it on the ballot. If you get enough signatures, you can put a Proposition out there for anything, but that doesn't mean that if the Proposition passes by majority that it automatically falls under the Constitution.

en.wikipedia.org...(history_in_the_United _States)

In many states, signature gathering has become a niche industry in the role of politics. Proponents of initiatives, referendums, or recalls now pay individuals to collect signatures. This is required because of the sheer number of signatures required in order to qualify a measure on the ballot and the changes in American culture with public life shifting away from public places like parks and streetcars and into private spaces such as shopping malls and automobiles, which make it difficult to gather signatures. The signature gatherers are usually paid by the signature and often independent contractors, which makes them not subject to minimum wage laws. To combat the growing presence of signature gatherers, some states have passed bans on paying signature gatherers by the signature, and Oregon most notably declared signature gatherers employees and enforced labor laws on the petition proponents.

en.wikipedia.org...

In the United States the initiative is in use, at the level of state government, in 24 states and the District of Columbia [1], and is also in common use at the local and city government level. The initiative has been recognized in the US since at least 1777 when provision was made for it by the first constitution of Georgia.
The modern U.S. system of initiative and referendum originated in the state of South Dakota. South Dakota adopted initiative and referendum in 1898 by a vote of 23,816 to 16,483. South Dakota is also the only state to have the idea develop on home soil without knowledge of the Swiss measure[citation needed]. Oregon was the second state to adopt, and did so in 1902, when the state's legislators adopted it by an overwhelming majority. The "Oregon System", as it was at first known, subsequently spread to many other states, and became one of the signature reforms of the Progressive Era (1890s-1920s). Well known U.S. initiatives include various measures adopted by voters in states such as Colorado, Washington, Oregon, California, Massachusetts and Alaska.

California was 'chosen' by groups from outside the State to test the waters regarding Same-Sex Marriage in order 'to fight' it out in court. That is the whole reason they did it here. They knew that the Civil Rights groups would have to fight back and drag it through the courts again.

en.wikipedia.org...(2000)

Prior to 1977, California Civil Code section 4100 (predecessor to what is now codified at California Family Code section 300) defined marriage as: "a personal relation arising out of a civil context, to which consent of the parties making that contract is necessary."[3]
While related sections made references to gender, a state assembly committee that was debating adding gender-specific terms to this section in 1977 noted: "Under existing law it is not clear whether partners of the same sex can get married."[4] That year, the legislature amended the definition of marriage to remove any ambiguity.
When Prop 22 came before voters, section 300 defined marriage as:
a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. [5]
Even though the definition governing who may marry explicitly precluded contracting a same-sex marriage in California, a separate provision, section 308, governed recognition of marriages contracted elsewhere:
A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state. [6]
Advocates of Prop 22 described section 308 as a "loophole," apparently forcing California to recognize a same-sex marriage validly contracted in some other state.[7] After passage, Prop 22 added a new section, codified at section 308.5, that reads:
Only marriage between a man and a woman is valid or recognized in Californi

It is important to note that Prop 22 was thrown out on State constitutional grounds.
also from:en.wikipedia.org...(2000)

Separately, numerous challenges to the constitutionality of the opposite-sex requirements found in California's marriage statutes, including Prop 22, came before the courts. A San Francisco trial court threw out all of the gender requirements on state constitutional grounds. On appeal, an intermediate court reversed that decision. In December 2006, the California Supreme Court voted unanimously to review all six cases and held oral argument on March 4, 2008, consolidating the cases as In Re Marriage Cases.[17] The Court ruled on May 15, 2008, that Proposition 22 violated the state Constitution and was therefore invalid.[18] Governor Arnold Schwarzenegger immediately issued a statement pledging to uphold the ruling, and repeated his pledge to oppose Proposition 8, a constitutional amendment initiative that would override the Court's ruling and again ban same sex marriages by placing the text of Proposition 22 in the State Constitution.[19]

Finally, one can not fail to see that the special interest groups had already crafted Prop 8 and were getting signatures, before Prop 22 was out of appeals in regard to its own validity.

en.wikipedia.org...

In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], is a California Supreme Court case holding "that the California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying."[1]

It would seem that Prop 8 was invalidated before it was even passed.
DocMoreau

reply to post by DocMoreau


I understand all those points, but wouldn't you think that, especially after the issues involved, that the Board of elections or Courts would have taken a look at the Proposition before it was put on the ballot?

reply to post by pavil


I agree, and some people did, wiki/California_Proposition_8_(2008):

Pre-election legal challenges
Petition to remove proposition from ballot
On July 16, 2008, the California Supreme Court denied a petition calling for the removal of Proposition 8 from the November ballot. The petition asserted the proposition should not be on the ballot on the grounds it was a constitutional revision that only the Legislature or a constitutional convention could place before voters. Opponents also argued that the petitions circulated to qualify the measure for the ballot inaccurately summarized its effect. The court denied the petition without comment.[20] As a general rule, it is improper for courts to adjudicate pre-election challenges to a measure's substantive validity. (Costa v. Superior Court (2006) 37 Cal.4th 986, 1005-1006.) The question of whether Proposition 8 is a constitutional amendment or constitutional revision remains unresolved, and a new petition arguing that Proposition 8 is a revision was filed by civil rights groups on November 5, 2008.[21]
Challenge to revised title and summary
On July 22, 2008, Proposition 8 supporters mounted a legal challenge to the revised ballot title and summary, contending that Attorney General Brown had inserted "inflammatory" language that would "unduly prejudice voters against" Proposition 8.[22] Supporters claimed that research showed that an attorney general had never used an active verb like “eliminates” in the title of a ballot measure in the past fifty years in which ballot measures have been used.[23] Representatives of the Attorney General produced twelve examples of ballot measures using the word "eliminates" and vouched for the neutrality and accuracy of the ballot language.[24][25]
On August 8, 2008, the California Superior Court turned down the legal challenge, affirming the new title and summary, stating, "[t]he title and summary is not false or misleading because it states that Proposition 8 would 'eliminate the right of same-sex couples to marry' in California. The California Supreme Court unequivocally held that same-sex couples have a constitutional right to marry under the California Constitution." [26][19] That same day, proponents of Prop. 8 filed an emergency appeal with the state appeals court. The Court of Appeal denied their petition later that day and supporters did not seek a review by the Supreme Court of California.[27][28] The deadline for court action on the wording of ballot summaries and arguments in the voter pamphlet was August 11, 2008.[29]
Court-ordered rewording
While turning down the challenge to the title and summary, the California Superior Court also found that the Yes on 8 campaign had overstated its ballot argument on the measure's impact on public schools and ordered a minor change in wording. The original arguments included a claim that the Supreme Court's legalization of same-sex marriage requires teachers to tell their students, as young as kindergarten age, that same-sex marriage is the same as opposite-sex marriage. The court said the Yes on 8 argument was false because instruction on marriage is not required and parents can withdraw their children. The court said the ballot argument could be preserved by rewording it to state that teachers "may" or "could" be required to tell children there is no difference between same-sex and opposite-sex marriage.[26]

I think they did everything in their power to try to get the courts from having to go through all this now, knowing before hand that it was destined to fail as legislation. Either because it would get voted down, or because it would have to be struck down for being unconstitutional.

DocMoreau

edit to add.... so sorry for the long quote. Didn't realize. Maybe I should break it into three separate quotes... The information is important though, and from an open source source.... please be kind mods....

[edit on 20/11/2008 by DocMoreau]

It seems to me that doc has made a very valid point suggesting that prop 8 is a test case with a parrallel agenda . Certainly the abuse of legal process is nothing new . War is legalised murder but using the law to punish the love between two people , thats tyranny of the worst sort .

To me ,love is the foundation of all thats dear to me . Sex without love can be fun for awhile but in the end it leaves you empty , unsatisfied .

But in marrriage ,sex is only a tiny proportion of the time two people spend together .

Marriage really is a very practical partnership where the sharing of shelter , food , cooking ,domestic duties ,just makes life that much easier and more productive for both partners . Its the sharing that brings joy through adversity ,challenges met , counsel and comfort in moments of grief . All these things and much more make a marriage work ,even when you are screaming at each other . Its the sanctifying of friendship . Its the comfort of knowing someone is prepared to willingly sacrifice their own freedom and independance because they value your life as much as their own .

Strictly business partnerships rarely work out as well because personal ambition gets in the way .

But marriage is much more about sacrifice than taking the world by force and making your mark .

So I would suggest that some who judge the quality and validity of marriage purely in terms of sexual orientation is probably not getting enough love or sex of their own .

You can bed a beautifull woman . She may be a drop dead gorgeous goddess in human form. BUT if the love is not there it still does nothing for the loneliness and longing that comes from lack of true friendship .

When I was young I drowned my sorrows with sex, because booze and drugs dont work for me . I was born though with a deep longing for sexual AND emotional union with the one true love of my life . Even when I was barely two years old , I knew that . But then that is my curse in a sense...

Many birds mate for life . Interesting that . They dont go to church and exchange vows because they dont need to . Mother nature is their cathedral and I cannot imagine a more perfect backdrop for love than earth, sea, and the infinite heavens above.

Maybe thats why the need to fly is so deeply engrained in my soul .

And that brings me to my final point .How do you judge the sex of a persons soul ? You cant really . You can only really know what your soul longs for .Its not your right or place to condemn others for those they choose to love .Better to love than hate , condemn and impose judgement .

The law is not supposed to be a weapon but the exercise of wisdom ,mercy , compassion . If the court is not guided by love and respect then it no longer serves justice .

reply to post by DocMoreau


Well, I guess we will see how this plays out. Kinda weird having a Court try to rule on a Constitutional Amendment done using all the proper procedures. I'm thinking that if they were to strike it down, it would set a very bad precedence. Isn't that the whole reason for having such an amendment process in the first place? Why even have the process if the Supreme Court can change it, if they deem fit? Separation of Powers issue there IMO.

Sounds to me like Recon and Doc got about as valid of points as you get in situations such as these. I'd have to agree on the prospect of prop H8 (as i like to call it hehe) being a test case, certainly has all the makings of something of the sort. I'd say though that pavil has a weighty counter point as well, what with that last bit about the seperation of powers and such. Seems kinda like it was intended to slip on in amongst the controversy with the womens right prop in play and all those crude ad campaigns they cycled so heavily on tv networks...It really does just come down to the fact that in first place, no reason on earth a "christian marriage" or a "catholic marriage" or any other type of religious ceremony should be held more legit as a union in the state/governments eyes above a civil union. my opinion is that whole licensing for marriages should be reversed. so as to say you go and get a civil union license instead of a marriage license. gay or straight, and if you can show proof that you have dependents (children), again gay or straight THATS when you get the tax status. that way no one gets any unearned benefits or lacks there right to benefits. I figure if EVERYONE has to get a civil union license instead of some religiously approved ceremony then thats the REAL deffinition of a division between church and state. Anyone whos got marriages from before the revision goes in to effect just gets a the civil union added in so as to make it all compliant. And in that particular circumstance that you want a religious ceremony for your civil union then alls you do is do it on your own without any interference from the state. This makes marriage a levelled ground for all couples, kicks religion out the door on how the government runs tax status, and leaves it up to the individual to persue anything more ceremonial than a state approved union of two incomes to pursue should one decide to....fair the way it shouldve been you ask me.

[edit on 20-11-2008 by Averysmallfoxx]

reply to post by pavil


Except proper procedures were not followed to a T.

They should have appealed the Prop 22 case to the U.S. Supreme Court before they created overlapping legislation in the form of Prop 8. Are they conceding that Prop 22 is unconstitutional under California Law? If so, they must have known that Prop 8 would also be unconstitutional under California Law.

Tax Exempt Organizations conspiring with each other to steer legislation and then donating to the campaign for that legislation is a no no. That much is for sure.

But you are right, it will be interesting to see how the next steps play out. I don't think the California Supreme Court is going to be the end of this story.

Personally, I think that the Churches creating Prop 8 in California is designed as distraction to keep public attention away from states where they have passed such bans already or have been in the process in trying to do so.

I honestly don't have much more to contribute to the discussion until the Court takes up the case.
DocMoreau

reply to post by DocMoreau


I don't see it that way. Prop 8 changed the Cali Constitution, the other Prop did not, apples and oranges in the legislative fashion. The argument of an amendment to the Constitution being Unconstitutional is a wholly different beast.

reply to post by pavil


That is the beast.... and we will see.

I am sorry I was not more clear. Prop 22 unconstitional under California Constitution. Prop 8 Changes the California Constitution, but in possible violation to the U.S. Constitution.

Interesting to note:

The constitution can be changed by either amendments or revisions, the latter of which is defined as a "substantial change to the entire constitution, rather than ... a less extensive change in one or more of its provisions".[2]. Amendments may be passed by a two-thirds vote in both houses of the state legislature or a California ballot initiative, which a majority of voters must approve. Any citizen may petition for an amendment to be placed on the ballot if they gather signatures equal to 8% of the votes cast in the last gubernatorial election, among the lowest thresholds for similar measures of any U.S. state.[3] As of 2008, this was 694,354 signatures[4] compared to an estimated 2007 population of 36,553,215.[5] Revisions originally required a constitutional convention but today can be passed with a two-thirds vote in the legislature much like an amendment.

en.wikipedia.org...

One has to remember how progressive that California is as a populace.

Many of the individual rights clauses in the state constitution have been construed as providing rights broader than the Bill of Rights in the federal constitution.[16] Two excellent examples are the Pruneyard Shopping Center case, and the first decision in America in 1972 finding the death penalty unconstitutional, California v. Anderson, 6 Cal. 3d 628, which also noted that under the state constitution, a stronger protection applies than the U.S. Constitution's 8th Amendment, which prohibits punishments which are cruel and unusual, the state constitution prohibits punishments which are cruel or unusual.

en.wikipedia.org...


Also, it is very interesting that over 1.8 million ballot have not yet been counted in California, with Prop 8 currently 'winning' by 513,453. The vote may become closer when the final election result are released December 9.
en.wikipedia.org...

The Los Angeles Times reported that "The odds are strongly against the uncounted ballots being so dramatically different from the ones counted." The margin between those who approved and those who voted against Proposition 8 was slightly more than half a million votes. To reverse the reported results, opponents would have to win more than 59% of the votes not yet tallied. Thus far, they have won only 47.9% of the vote.[134] Thus it is extremely unlikely that the remaining votes could shift the outcome. By comparison, the Los Angeles Times did not call the outcome of Proposition 11 (2008) which has only a 133,952-vote margin of victory. [135] Gay media also reported that the outcome was unlikely to change given that most of the outstanding ballots "are from areas of the state with lower support for marriage equality."[136]
Gov. Arnold Schwarzenegger expressed hope that the California Supreme Court would overturn Proposition 8. He urged backers of gay marriage to follow the lesson he learned as a bodybuilder trying to lift weights that were too heavy for him at first: "I learned that you should never ever give up. . . . They should never give up. They should be on it and on it until they get it done." He also predicted that the 18,000 gay and lesbian couples who have already wed would not see their marriages nullified by the initiative.[137]

On November 19, 2008, the California Supreme Court accepted three lawsuits challenging Proposition 8 but denied the requests to stay its enforcement.[148] The motion to intervene filed by Proposition 8 proponents was granted, but the motion to intervene filed by the Campaign for California Families was rejected.[148] The issues to be briefed and argued are as follows:
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, sections 1-4.)
(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?[148]
Proponents have until December 19, 2008 to file their return and brief, opponents then have until January 5, 2009 to file their reply.[148]
Legal experts are expecting the California Supreme Court to reach a ruling during 2009

We will see....
DocMoreau

I keep thinking that its just a morality conflict. That people just keep taking sides against one another because the views presented to them (the two in question here being pro and con) appeal to their inner sense of approval when in fact its got nothing to do with your inner sense of approval. Its really just about your right to decide for yourself as a free human should. Its not about what you believe folks its about what FREEDOM means. The more we constrict the applications of freedom, the more we constrict ourselves to views that dont encompass the WHOLE of humanity. Everyone's got a viewpoint and every view point has a right to acknowledgment and respect. PERIOD!

Originally posted by DocMoreau

I am sorry I was not more clear. Prop 22 unconstitional under California Constitution. Prop 8 Changes the California Constitution, but in possible violation to the U.S. Constitution.

Then why not bring it to the USSC rather than the Cali S.C.? Like you said...we will see. I don't think they will tread in those waters but we will see.

One has to remember how progressive that California is as a populace.
......

Also, it is very interesting that over 1.8 million ballot have not yet been counted in California, with Prop 8 currently 'winning' by 513,453. The vote may become closer when the final election result are released December 9.

Hmm, if you say so, but from your own article:




en.wikipedia.org...

Gay media also reported that the outcome was unlikely to change given that most of the outstanding ballots "are from areas of the state with lower support for marriage equality.

Sounds to me like they will lose by even more.

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, sections 1-4.)
(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

1. That one is a stretch, IMO as other laws pertaining would not necessarily be impacted.
2. Not sure what they mean by that one. Anyone venture a guess what they mean by that?
3. That will be an issue for sure.

Sounds like there is only 2 rationales for Prop 8 not being Constitutional not the 3 the media reported initially, perhaps I am wrong.

Maybe its me...no I'm sure it is but this all just boils down to common sense. If you were the minority and you weren't hurting anyone with what made you happy, why would someone have the right to take it away from you on the basis that they think its wrong, you clearly don't and none of the people whom feel as you do either, but then like doc says there's this bureaucratic pish posh so deeply entangling our rights.... *sigh*

The attempt to overturn Prop 8 has just been thrown out by a Federal Judge. Looks like there are a few good judges left in our land. www.bizjournals.com...

I am ashamed that this passed here. Us Californians pretend to be liberals and accepting of everyone, then we vote to ban gay marriage. Its so stupid. If they want to get married, let them!

NO ONE has the right to tell these people what to do...

Peace.

[edit on 17-7-2009 by jeasahtheseer]

Thanks for playing the local necromancer!

Originally posted by Jim Scott
The attempt to overturn Prop 8 has just been thrown out by a Federal Judge. Looks like there are a few good judges left in our land. www.bizjournals.com...

Yes, thats a good judge

Sadly there are also a very large amount of bigots who made it pass in the first place because it matters to THEM how other people spend THEIR lives with one other

Thats absolutely shameful and it reminds me of medieval practices