Prop 8

[Guard Dog]

I fail to see why you keep harping on this. The supreme court exists to trample on those laws that they determine to be unconstitutional on a federal and/or state level. The only difference between this and Brown in terms of what is being killed is that Brown was a State Law and the Prop 8 was a state Constitutional amendment that got through the ludicrously easy to amend proposition system.

 

Hell, the Supreme court already has shown that it's a bastard who doesn't care about people in Bush V Gore where Bush (who had 47% of the popular vote to Gores 48) was basically put in office by SCOTUS because of the Florida fiasco in 2000 where SCOTUS went against Gore.

I keep harping on it bacause I am right. The mistake you are making my friend is that this case is not about whether or not same sex marriage should be legal. It was NEVER about that until Walker made it that. The question before the court was whether or not California had the right to make it illegal. And they do, right or wrong. Walker totally ignored the merits of the state power argument and found on the basis of his own "morality" that it was wrong for it to be illegal.

 

Bush V Gore was a different animal all together. The fact that Gore had more popular vote that Bush was not relevant as to the merits of the lawsuit. Had the court based it's decision on that we would have had a real crisis on our hands. In that case the SCOTUS decided to UPHOLD law rather than overturn it because the Constitution delegates to the state the responsibility to determine how it's electors are chosen. And the decision was 7-2 so even two of the liberals refused to usurp state power to obtain a result they might have preferred.

[Calax]

I fail to see why you keep harping on this. The supreme court exists to trample on those laws that they determine to be unconstitutional on a federal and/or state level. The only difference between this and Brown in terms of what is being killed is that Brown was a State Law and the Prop 8 was a state Constitutional amendment that got through the ludicrously easy to amend proposition system.

 

Hell, the Supreme court already has shown that it's a bastard who doesn't care about people in Bush V Gore where Bush (who had 47% of the popular vote to Gores 48) was basically put in office by SCOTUS because of the Florida fiasco in 2000 where SCOTUS went against Gore.

I keep harping on it bacause I am right. The mistake you are making my friend is that this case is not about whether or not same sex marriage should be legal. It was NEVER about that until Walker made it that. The question before the court was whether or not California had the right to make it illegal. And they do, right or wrong. Walker totally ignored the merits of the state power argument and found on the basis of his own "morality" that it was wrong for it to be illegal.

Actually it was kinda about that. You can hardly say that the overturning of a law about a specific topic isn't about the topic. As to states rights vs the rights of the feds, Feds trump. If a court decides that the support of marriages from government standpoints (taxes etc) should be applied to both gay and lesbian marriages, and that the majority have no right to unreasonable enforce their own personal brand of morality upon the minority, then they don't. The state cannot have the legal right to make a law that is illegal according to the feds.

[Hurlshort]

I'm not going to look it up, as I'm on my phone, but I believe Bush is the third president to win despite losing the popular vote. Kennedy was another when he beat Nixon.

[Thorton_AP]

short term backlash that lasts nearly a decade... right up until Congress begins to implement changes? that is a considerable long and violent bit o' backlash, not that we forsee anything like that in the present context, 'cause as already noted, this is mostly a symbolic right that don't serious impact the day-to-day life of most hetero or homosexuals.

 

Would Congress have still made their changes without these events occurring?

[Meshugger]

I'm not going to look it up, as I'm on my phone, but I believe Bush is the third president to win despite losing the popular vote. Kennedy was another when he beat Nixon.

 

Truman maybe?

[Guard Dog]

Hayes defeated Tilldale (?) back in the 1880's to win despite losing the popular vote. We've had fifty eight presidiential elections and only three has there been a dsiparity in popular vs electoral vote. Actually, I think it's only two, I'm 90% sure Kennedy won both.

 

Anyway, this movement to eleminate the electoral college is trouble because New York, Mass, & California alone can overwhelm the rest of the country. Not exactly fair is it?

[Wrath of Dagon]

It wouldn't make much of a difference since the votes are still proportionally allocated. It would simply eliminate the case where someone could win more states by a narrower margin and defeat someone who wins fewer states by big margins. The real constraint on the big states is the Senate, not the presidential electors.

[Monte Carlo]

I'm confused. Is this an issue about equality or the minutiae of the US federal vs state constitutional arrangements.

 

My view is that sexuality is fixed. And in aby case, denying people the right to form a legally-binding partnership because of their sexuality is contrary to their civil liberties in a free society. Religions do not 'own' the concept of marriage.

 

There, that's it. The rest is obfuscation.

[Guard Dog]

I'm confused. Is this an issue about equality or the minutiae of the US federal vs state constitutional arrangements.

 

My view is that sexuality is fixed. And in aby case, denying people the right to form a legally-binding partnership because of their sexuality is contrary to their civil liberties in a free society. Religions do not 'own' the concept of marriage.

 

There, that's it. The rest is obfuscation.

 

This will really blow your mind then Monte. Civil Unions between same sex partners are completely legal in California (and in 47 of the 50 states). So all the befefits of marriage are already there for gay couples. Prop 8 and the subsequent court fight is over a word. They are literally fighting over a word.

 

It's not just the word really, it's the sanction that comes with it. Giving them the word marriage is in effect saying it's ok to be gay. You are not abnormal or atypical. It seems a little silly to me since what two people do with each other is their own concern and none of anyone elses. If they want to get married, who cares?

 

As to sexuality being fixed, I don't buy that. I think this is just what they like and thats their choice to live that way. Trying to claim that sexuality is genetic is too much like making an excuse for why people are they way they are. It's a back door to aggrieved minority status that they do not need and do not deserve. You like what you like, there is no need to apologize or make excuses like "I can't help it".

Edited August 12, 2010 by Guard Dog

[Calax]

I'm confused. Is this an issue about equality or the minutiae of the US federal vs state constitutional arrangements.

 

My view is that sexuality is fixed. And in aby case, denying people the right to form a legally-binding partnership because of their sexuality is contrary to their civil liberties in a free society. Religions do not 'own' the concept of marriage.

 

There, that's it. The rest is obfuscation.

 

This will really blow your mind then Monte. Civil Unions between same sex partners are completely legal in California (and in 47 of the 50 states). So all the befefits of marriage are already there for gay couples. Prop 8 and the subsequent court fight is over a word. They are literally fighting over a word.

 

It's not just the word really, it's the sanction that comes with it. Giving them the word marriage is in effect saying it's ok to be gay. You are not abnormal or atypical. It seems a little silly to me since what two people do with each other is their own concern and none of anyone elses. If they want to get married, who cares?

 

As to sexuality being fixed, I don't buy that. I think this is just what they like and thats their choice to live that way. Trying to claim that sexuality is genetic is too much like making an excuse for why people are they way they are. It's a back door to aggrieved minority status that they do not need and do not deserve. You like what you like, there is no need to apologize or make excuses like "I can't help it".

Seperate is inherently unequal there bub.

[Guard Dog]

I'm confused. Is this an issue about equality or the minutiae of the US federal vs state constitutional arrangements.

 

My view is that sexuality is fixed. And in aby case, denying people the right to form a legally-binding partnership because of their sexuality is contrary to their civil liberties in a free society. Religions do not 'own' the concept of marriage.

 

There, that's it. The rest is obfuscation.

 

This will really blow your mind then Monte. Civil Unions between same sex partners are completely legal in California (and in 47 of the 50 states). So all the befefits of marriage are already there for gay couples. Prop 8 and the subsequent court fight is over a word. They are literally fighting over a word.

 

It's not just the word really, it's the sanction that comes with it. Giving them the word marriage is in effect saying it's ok to be gay. You are not abnormal or atypical. It seems a little silly to me since what two people do with each other is their own concern and none of anyone elses. If they want to get married, who cares?

 

As to sexuality being fixed, I don't buy that. I think this is just what they like and thats their choice to live that way. Trying to claim that sexuality is genetic is too much like making an excuse for why people are they way they are. It's a back door to aggrieved minority status that they do not need and do not deserve. You like what you like, there is no need to apologize or make excuses like "I can't help it".

Seperate is inherently unequal there bub.

 

 

Oh I do not disagree that it is a rotten deal. Where you and I do not agree is on the merits of the Walker decsion. Remember, Gromnir was correct when he pointed out that the court has never recognized homosexuals as a "minority" and federal government takes no position on marriage outside of the fact that it is a contract. The constitution empowers the state to enforce contracts. Plus homosexuals really cannot claim to be discriminated against because they are not enjoined from getting married, they just can't marry each other.

 

Yes I know this is all semantics but that is what the law is. This seems like a small thing I know but the seperation of state and federal power is the single most important issue in the country today IMOP. We went to war over that once and I am convinced we will again in the future.

[~Di]

]

 

This will really blow your mind then Monte. Civil Unions between same sex partners are completely legal in California (and in 47 of the 50 states). So all the befefits of marriage are already there for gay couples. Prop 8 and the subsequent court fight is over a word. They are literally fighting over a word.

 

That's not really true. First, civil unions between homosexuals can only be recognized in states which have comparable laws, and aren't recognized at all by the federal government when it comes to joint income taxes, social security beneficiary, joint property rights during a divorce or death of partner, etc. Even in states with civil union laws, employers aren't required to offer family health insurance to gay couples, even when it offers such perks to heterosexual couples. Some states use DOMA (Defense of marriage acts) get around homosexual civil unions, denying them state benefits, i.e., joint taxes, inheritance rights, medical decision-making rights, denying recognition of civil unions conducted in other states, etc. So simply saying that states have civil union laws without noting what exactly those laws provide and whether or not a DOMA has managed to take them away is misleading.

 

This CNN article is from 2004, but a quick google didn't give me anything newer than wasn't from a source that I thought you'd accept as nonbiased. http://www.cnn.com/2004/LAW/02/26/bush.civ...ions/index.html

 

A marriage recognized by all states and the federal government is required to end the discrimination against homosexuals. Eventually this will go to the SCOTUS... and then we shall see.

[Guard Dog]

Eventually this will go to the SCOTUS... and then we shall see.

 

Yes it will and I think you will be disappointed by what happens. The question before the SCOTUS will not be "Should gay marriage should be legal?" This question will be "Does California have the right to recognize, or decline to recognize gay marriage?" And you can be sure they do. My prediction it will go 6-3 with Scalia, Thomas, Roberts, Kennedy, Breyer, and Alito ruling in favor of California. Ginsburg does not give a hoot in hell what the law says, she will do what "feels" right. Kagan is a nutjob who thinks the federal government is our God. Who knows where Sotomayor will come down. She may even join the majority.

[Wrath of Dagon]

You don't know what the make up of the Supreme Court will be like by then. And did I miss the news, has Breyer quit being liberal at some point?

 

I'm confused. Is this an issue about equality or the minutiae of the US federal vs state constitutional arrangements.

It's not minutiae, it's the most important guaranty of our rights that exists. Of course that may be hard to grasp to a royalist. And there's no guaranty of equality under US constitution, there's a guaranty of equal protection under the law. Edited August 13, 2010 by Wrath of Dagon

[~Di]

Eventually this will go to the SCOTUS... and then we shall see.

 

Yes it will and I think you will be disappointed by what happens. The question before the SCOTUS will not be "Should gay marriage should be legal?" This question will be "Does California have the right to recognize, or decline to recognize gay marriage?" And you can be sure they do. My prediction it will go 6-3 with Scalia, Thomas, Roberts, Kennedy, Breyer, and Alito ruling in favor of California. Ginsburg does not give a hoot in hell what the law says, she will do what "feels" right. Kagan is a nutjob who thinks the federal government is our God. Who knows where Sotomayor will come down. She may even join the majority.

 

Oh, it's a conservative majority now, no doubt about it. But I want them to actually say that descrimination against sexual orientation is constitutional. There's no doubt in my mind that at one point SCOTUS would have ruled that descrimination against blacks was constitutional. The time has come, in my opinion, to make certain that constitutional rights and protections are applied to all people equally. I may not live to see it, but someday it will happen here in the USA.

 

Also, I found something in the BBC today that better describes what I was trying to say about civil unions not giving spousal rights in most states. http://www.bbc.co.uk/news/world-us-canada-10956033

 

If you look at the map, you'll see that only one state, Iowa, recognizes gay marriage. Three states offer full spousal rights for gay couples. The rest offer either limital spousal rights or have outright banned gay marriages. And of course, the federal government does not recognize gay couples at all. So as a society, we've got some work to do in order to end the last bastion of legalized discrimination.

[Guard Dog]

Eventually this will go to the SCOTUS... and then we shall see.

 

Yes it will and I think you will be disappointed by what happens. The question before the SCOTUS will not be "Should gay marriage should be legal?" This question will be "Does California have the right to recognize, or decline to recognize gay marriage?" And you can be sure they do. My prediction it will go 6-3 with Scalia, Thomas, Roberts, Kennedy, Breyer, and Alito ruling in favor of California. Ginsburg does not give a hoot in hell what the law says, she will do what "feels" right. Kagan is a nutjob who thinks the federal government is our God. Who knows where Sotomayor will come down. She may even join the majority.

 

Oh, it's a conservative majority now, no doubt about it. But I want them to actually say that descrimination against sexual orientation is constitutional. There's no doubt in my mind that at one point SCOTUS would have ruled that descrimination against blacks was constitutional. The time has come, in my opinion, to make certain that constitutional rights and protections are applied to all people equally. I may not live to see it, but someday it will happen here in the USA.

 

Also, I found something in the BBC today that better describes what I was trying to say about civil unions not giving spousal rights in most states. http://www.bbc.co.uk/news/world-us-canada-10956033

 

If you look at the map, you'll see that only one state, Iowa, recognizes gay marriage. Three states offer full spousal rights for gay couples. The rest offer either limital spousal rights or have outright banned gay marriages. And of course, the federal government does not recognize gay couples at all. So as a society, we've got some work to do in order to end the last bastion of legalized discrimination.

 

Di you are missing the point, it's not about discrimination. If it were there would be good chance of it being upheld. It's about state power vs federal power. The gay marriage folks will lose that argument every time in the SCOTUS.

 

@WoD, no Breyer is a big lib but he is also a moderate supporter of the federalist concept. He has been fairly reliable in supporting states rights.

[~Di]

Di you are missing the point, it's not about discrimination. If it were there would be good chance of it being upheld. It's about state power vs federal power. The gay marriage folks will lose that argument every time in the SCOTUS.

 

@WoD, no Breyer is a big lib but he is also a moderate supporter of the federalist concept. He has been fairly reliable in supporting states rights.

 

You could be right, I'm not a constitutional scholar. I do know, however, that it's not the state constitution at issue this time, it's about the federal constitution. The issue is whether a state has the right to enforce statutes which are federally unconstitutional. At least that's my understanding of the situation. It'll be at least a year before it hits the 9th Circuit Appeal Panel, longer if it then goes to the full 9th Circuit Appeals Court, and a year or two after that before it hits SCOTUS. By then we'll all be more clear as to what the Pro-Prop 8 folks are arguing... so far they've said basically nothing of substance... and what the anti-Prop 8 folks will be arguing to the Supremes. But if by some chance SCOTUS does agree that banning gay marriage is unconstitutional, then it's my understanding that it will apply to all 50 states, not just California.

 

I have lived through times where segregation and institutionalized discrimination was accepted as fact. I know it when I see it. Thankfully, the courts have guided us through decades of change, and things are much better now. But it's not over until everyone has the same protections and due process, and I believe that this case just might be the one to make the difference.

 

Or not.

[Calax]

GD, what about the fact that if a married couple turns around and goes to California, and loses the benefits of actually being married. In theory the "civil Union" is the same as a marriage but you still gotta pay more for the same benefits (there's at least a 15 dollar fee just to fill out the medical forms in the Los Rios CC district).

[Guard Dog]

GD, what about the fact that if a married couple turns around and goes to California, and loses the benefits of actually being married. In theory the "civil Union" is the same as a marriage but you still gotta pay more for the same benefits (there's at least a 15 dollar fee just to fill out the medical forms in the Los Rios CC district).

Now this I think is an argument that has teeth. Under the "Full Faith and Credit" clause any agreement (remember marriage is a contract in the eyes of the law) made in one state is binding in another. If a couple was married in Iowa the shuold also be married as far as CA is concerned. If they were not then they can make a compelling argument for injury under both the Full Faith and Credit clause and the 14th amendment. I wonder why this has not been tried yet? It seems like the way to go to me. Enoch and I were discussing it once and he did not think it could win. He is certainly better infomred on this kind of thing than I am but it sounds like a no brainer to me.

[Calax]

I'm not sure but I know that in the actual amendment it says that it will not recognize anything related to a gay marriage. However in my head I'm thinking that I remember some state official saying that if you're married already the bill is not retroactive but I don't know

[Wrath of Dagon]

GD, what about the fact that if a married couple turns around and goes to California, and loses the benefits of actually being married. In theory the "civil Union" is the same as a marriage but you still gotta pay more for the same benefits (there's at least a 15 dollar fee just to fill out the medical forms in the Los Rios CC district).

Now this I think is an argument that has teeth. Under the "Full Faith and Credit" clause any agreement (remember marriage is a contract in the eyes of the law) made in one state is binding in another. If a couple was married in Iowa the shuold also be married as far as CA is concerned. If they were not then they can make a compelling argument for injury under both the Full Faith and Credit clause and the 14th amendment. I wonder why this has not been tried yet? It seems like the way to go to me. Enoch and I were discussing it once and he did not think it could win. He is certainly better infomred on this kind of thing than I am but it sounds like a no brainer to me.

I may be remembering wrong, but I thought that was exactly the issue when the Defence of Marriage Act was appealed before the Supreme Court. They said it only applies to enforcing valid contracts, else every state would have to accept every law that another state passes, or something to that effect.

[Wrath of Dagon]

I was wrong about the electoral college having proportional representation, since each state gets electors for its senators. Also this article make a strong case for why it's a good thing: http://news.yahoo.com/s/csm/20100812/cm_csm/319397

[Calax]

GD, what about the fact that if a married couple turns around and goes to California, and loses the benefits of actually being married. In theory the "civil Union" is the same as a marriage but you still gotta pay more for the same benefits (there's at least a 15 dollar fee just to fill out the medical forms in the Los Rios CC district).

Now this I think is an argument that has teeth. Under the "Full Faith and Credit" clause any agreement (remember marriage is a contract in the eyes of the law) made in one state is binding in another. If a couple was married in Iowa the shuold also be married as far as CA is concerned. If they were not then they can make a compelling argument for injury under both the Full Faith and Credit clause and the 14th amendment. I wonder why this has not been tried yet? It seems like the way to go to me. Enoch and I were discussing it once and he did not think it could win. He is certainly better infomred on this kind of thing than I am but it sounds like a no brainer to me.

I may be remembering wrong, but I thought that was exactly the issue when the Defence of Marriage Act was appealed before the Supreme Court. They said it only applies to enforcing valid contracts, else every state would have to accept every law that another state passes, or something to that effect.

marriage would be a valid contract given it has direct economic implications for the partners in the contract no?

[Wrath of Dagon]

Not if it's against the law in that state.

[Calax]

Except that for one states laws to trump another goes against the faith and credit clause that GD was talking about, which would be federal.