Prop 8... Again

[Jason Tandro]

This is actually a very interesting thing legally speaking. Ignore the gay marriage issue (odd thing to say in a prop 8 debate, I know).

This may be the first time in history since the Civil War (and even then I think it was moot) that a FEDERAL JUDGE has declared a STATE CONSTITUTION UNCONSTITUTIONAL.

I mean seriously, this has never happened before. Prop 8 was an ammendment to the constitution. You cannot (at least before this) declare a State Constitution in violation of the US Constitution. This opens up a whole "judicial review" can of worms.

I mean this is a serious violation of "rule by the people". If the people of CA want to go back and vote to repeal the ammendment, they may do so and I'd totally support this, but the Federal Judge is, by precedent, way out of line here.

[anclunn]

I agree. I'm all for gay marriage, but the courts shouldn't be where this battle is fought.

[Freedan]

Admittedly, I don't know the ins and outs of how American politics work.

My understanding was that there was the federal constitution, which all states followed (first amendment, and such), and then each state had their own to cover the areas that weren't specified in the federal one. And the states were free to change their own constitution as long as it didn't conflict with the superseding federal one.

Am I mistaken? I honestly don't know.

[inferiare]

Freedan wrote:

Admittedly, I don't know the ins and outs of how American politics work. My understanding was that there was the federal constitution, which all states followed (first amendment, and such), and then each state had their own to cover the areas that weren't specified in the federal one. And the states were free to change their own constitution as long as it didn't conflict with the superseding federal one. Am I mistaken? I honestly don't know.

With American politics, the people vote to make any changes of any sort to a State Constitution or to add things to said Constitution. There's a first, initial voting on a matter - if it gets a majority of the vote, it will be placed on the ballot once more two years down the road. If that second vote gets the majority and wins out, that law is amended into the existing law.

California voters voted with the majority saying they did not want to legalize gay marriage in their state. It is in no way "unconstitutional" to have the people show their opinions by voting on a matter twice and having it win. It's the same way that our leaders get into office, albeit without the two-year voting in between. For as much as the government now runs our country, it's really supposed to be the other way around: we are supposed to govern the government. They are our civil servants who listen to the people. It's not supposed to be the other way around.

As Jason said, the courts have no right to try to turn around the ruling. It is not their jurisdiction. Their jurisdiction is making sure court rulings are right or wrong, I'm fairly certain (it's been a while since I've done politics like that, I'll double check when I'm more awake and not stupid.)

[Freedan]

inferiare wrote:

California voters voted with the majority saying they did not want to legalize gay marriage in their state. It is in no way "unconstitutional" to have the people show their opinions by voting on a matter twice and having it win. It's the same way that our leaders get into office, albeit without the two-year voting in between. For as much as the government now runs our country, it's really supposed to be the other way around: we are supposed to govern the government. They are our civil servants who listen to the people. It's not supposed to be the other way around.

The U.S. is a republic, is it not? A representative-democracy rather than a simple 'democracy'.

I always believed the point of a representative democracy is for the representatives to act in the interests of their constituents, not necessarily according to their wishes.

[psychokind]

I agree with Freedan on this one. in this case, with a direct vote by the people however, it's different. if there's direct voting, it's a direct democratic process which skips the representatives.

what I don't understand is: who else than a judge should judge if a direct vote by the people is in conformity with the constitution or not? I mean, if the majority of the people in Texas vote for "kill all mexicans" somebody would have to negate it

[Freedan]

Isn't that the whole point of the judicial branch of government anyway? When a law is passed, they decide "A-ok", or "NO WAI"?

[SoulBlazerFan]

Something funny I read, that is very true:

If people are so bothered by same-sex marriage being damaging to the sanctity of marriage, why don't they work on stopping divorce first?

With that said, the issue here is that the US Constitution does supercede any State Constitution. We were given the freedom of religion, freedom from persecution of practiciting our beliefs. Say, some decided to "invent" a religion based on homosexuality. Should that happen, any law banning same sex marriage would become illegal. And don't think it's impossible... especially if you've heard of the Church Of Keith Richards.

[anclunn]

Actually with respect to federal vs state law, any rights granted in the bill of rights are automatically protected from being infringed on by the states, however any limitations on the government stated in the constitution apply solely to federal law and not state law unless specifically stated, so therefore if the US constitution said, "Gay people can get married," then that would be it, but if it said, "The federal government cannot restrict gays from getting married," then the states still could. of course it doesn't say either, so it of course falls to the states at this point.

However, the federal government of the US has done things like passing a bill to distribute highway funding to states, but ONLY to states with a legal drinking age of 21, thus passing national 'soft' legislation through... well extortion without the needed constitutional amendment. Also, the courts are often interpreting rights into and out of existence on their whims. For example the federal government could always force people to sell their property if they needed to put a public highway through or something, but thanks to a somewhat recent ruling now states and cities force people to sell their property not only to then use it to build public works, but to then sell it to other private owners that will pay more taxes in the name of the "public good."

So yes, it's easy to see why, even though I'm totally in support of gay marriage, I don't want the courts to be where it comes from. If there's any threat to the US constitution right now it's the Supreme Court.

[Jason Tandro]

anclunn wrote:

Actually with respect to federal vs state law, any rights granted in the bill of rights are automatically protected from being infringed on by the states, however any limitations on the government stated in the constitution apply solely to federal law and not state law unless specifically stated, so therefore if the US constitution said, "Gay people can get married," then that would be it, but if it said, "The federal government cannot restrict gays from getting married," then the states still could. of course it doesn't say either, so it of course falls to the states at this point. However, the federal government of the US has done things like passing a bill to distribute highway funding to states, but ONLY to states with a legal drinking age of 21, thus passing national 'soft' legislation through... well extortion without the needed constitutional amendment. Also, the courts are often interpreting rights into and out of existence on their whims. For example the federal government could always force people to sell their property if they needed to put a public highway through or something, but thanks to a somewhat recent ruling now states and cities force people to sell their property not only to then use it to build public works, but to then sell it to other private owners that will pay more taxes in the name of the "public good." So yes, it's easy to see why, even though I'm totally in support of gay marriage, I don't want the courts to be where it comes from. If there's any threat to the US constitution right now it's the Supreme Court.

This.

Basically, Freedan, the 9th ammendment says: "Okay anything that is not guaranteed by our Federal constitution is left up to the states to decide." One of the big proponents of the Civil War was the issue of "state's rights", particularly the right to hold slaves.

Supporters of slavery said, "listen here under the 9th ammendment states can choose whether or not they wish to allow slavery". This was, of course, struck down by a few ammendments to the Federal Constitution by Lincoln.

There are only two legal ways for this act to be repealed and it is for it to come to a vote to citizens of California, or for gay marriage to be declared legal in the US Constitution (thus negating all other state laws).

[psychokind]

I don't quite get it. did california make a law saying "gay marriage" is illegal, or did they actually put it in their state constitution?

[inferiare]

psychokind wrote:

I don't quite get it. did california make a law saying "gay marriage" is illegal, or did they actually put it in their state constitution?

State constitution IS law. Therefore what was put into their Constitution by the voters themselves is what the law is.

@Freedan (and psychokind): No. the Judicial branch has nothing to do with what goes on in the voting branches (aka the House and Senate of the states). All three of them are separate parts of what makes our government. They can decide if something is right or wrong, yes, but only in certain circumstances. What people voted on legally is not something they should be dictating because the ACLU wants to pass something that was already voted on by the majority vote. Their "ruling" that the law is unconstitutional is definitely not something they should be dictating. It can't be unconstitutional if there is nothing (to my knowledge) in the US Constitution that says that what the people voted for is wrong.

[Jason Tandro]

inferiare wrote:

psychokind wrote: I don't quite get it. did california make a law saying "gay marriage" is illegal, or did they actually put it in their state constitution? State constitution IS law. Therefore what was put into their Constitution by the voters themselves is what the law is.

Okay, this is a good point and requires some clarification. Constitution is the main body of law that governs the state, and it is the main basis for what other laws are legal. Think of the constitution as a codex for what can, and cannot be law.

Ammending a constitution is so hard because it will affect EVERY POTENTIAL LAW that the ammendment covers.

Prop 8, psychokind, was an Ammendment to the CA State Constitution, not simply a stand alone law. A federal judge could (though it would be slightly taboo) declare a stand-alone law unconstitutional (that is it violates the US Constitution), but they never have declared an entire state constitution unconstitutional.

[psychokind]

Quote:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples," the judge wrote in a 136-page ruling that laid out in precise detail why the ban does not pass constitutional muster. The judge found that the gay marriage ban violates the Constitution's due process and equal protection clauses.

this is what I read.

ok, so the judge states that the prop8 is violating the constitution. so I ask again: who else should do that?

[Freedan]

I don't believe the judge mentioned it, but it could be argued that Prop 8 raises some Tyranny of the Majority issues to begin with.