The Jury Talks Back

11/21/2008

Initiative revisionism

Filed under: California Politics — Kevin M @ 4:38 am

It seems as though the fix is in on Proposition 8.  The official defender, AG Jerry Brown, asked the state Supreme Court to intervene, in some strange “please sue my client” gambit.  The Governor, shamefully, asked the court to overturn, for whatever reason seems most handy.  Judging by the suits the court took up, the handy reason seems to be that the 14-word initiative is a “revision” not a simple amendment, because it overturns the weeks-old fundamental right of same-sex marriage.

The ends, it seems, justify the means.

Even hearing these suits is a gross error by the Court.  If they were simply baseless rants by sore losers, seeking to fabricate constitutional rights, that would be one thing and par for the course.  Annoying, but mostly harmless even if successful.  But the “revision” claim attacks the initiative process itself and if it succeeds future initiative amendments will be radically limited.

If a 14-word amendment is a revision, what is not? Previously the bright line test was the “single subject rule.”  What bright line is left when a short, clearly-worded amendment on a very narrow subject is found to be a “revision”?  What will be immune to challenge by the low bar of “it affects a basic function of government” or “it impacts a fundamental right”?  Will only trivialities remain within the People’s power?

I suggest that the following initiative amendments would fail the new test:

  • Prop 11 (2008):  Places legislative reapportionment in the hands of a state jury.
  • Prop 9 (2008):  Affects the rights of defendants.  Reduces opportunities for parole.
  • Prop 209 (1996):  Bars racial preferences, “restricting” the rights of minorities.
  • Prop 140 (1990):  Term limits for state officeholders
  • Prop 115 (1990):  Revokes all criminal rights not based on federal constitution.
  • Prop 13 (1978):  Limits property tax to 1% and redefines assessment methods.

Further, any amendment that alters abortion rights, limits political activity, changes criminal proceedings to the detriment of the defendant, substantially changes state finances or alters a basic governmental procedure could be subject to this new rule.  Certainly they will be stayed  until the court can decide.

Is establishing gay marriage right this minute important enough to justify savaging the century-old initiative process?  Is popular government to be further diminished and judicial power expanded yet again, just to meet this one end?

I’d hope not.  But there is cause today for despair.

Obligatory disclaimer:  Since anyone who suggests that the people’s vote should be respected is (ironically) being cast as a vile oppressor of the masses, I feel the need to point out that not only did I vote against Prop 8, I voted against the statute version in 2000’s Proposition 22.  I believe that gays should have the right to marry.  But I do not believe that right can be founded solely on a court’s divination of constitutional entrails.  As with Roe v Wade, attempting to do so does harm to the integrity of both the constitution and the court.  On matters like these, the people must get there themselves for there to be closure and acceptance.

54 Comments

  1. I disagree as to the court’s hearing it; I think it pretty clearly should.

    I think the court should find that this is a revision, and not an amendment. I also believe that it would be consistent with the court’s prior ruling that existing gay marriages not be annulled; I think that once the right existed, terminating the right is a different thing than terminating pre-existing relationships.

    –JRM

    Comment by JRM — 11/21/2008 @ 7:11 am

  2. Who cares that your initiative process is a century old? The Constitution and the judicial branch are both two centuries old, if age is what we’re going by. I trust the courts to know what equality and discrimination is, not people. And what harm has Roe v Wade done to the Constitution and the court? What would it mean for slavery or women’s suffrage if people just said ‘the people must get there for themselves?’ From what I remember, it wasn’t an initiative that got women the right to vote.

    Republicans just don’t know anything about our government, how it works, and how it was intended to work. Don’t hurt yourself.

    Comment by Smelly — 11/21/2008 @ 7:24 am

  3. Hopefully you’re reconsidering your opposition to Prop 8. Nobody has taken away anyone’s rights but, as you point out, the losing side is attempting to do so. Do they care about anything other than validating their lifestyle? Why, no, they don’t. If burning down the Castro or West Hollywood would get them that validation, they’d do it. Manipulating/destroying the initiative process. No big deal.

    Comment by Chris — 11/21/2008 @ 7:31 am

  4. JRM, I don’t believe the Court has ruled that existing marriages are not to be annulled; that was one of the questions it certified to the AG.

    The current state of those marriages is indeterminate. AG Brown has said that in his view they are still valid, because the initiative isn’t retroactive, and I doubt anyone would have standing to sue.

    Comment by aphrael — 11/21/2008 @ 7:43 am

  5. And what harm has Roe v Wade done to the Constitution and the court? What would it mean for slavery or women’s suffrage if people just said ‘the people must get there for themselves?’ From what I remember, it wasn’t an initiative that got women the right to vote.

    Roe v Wade and giving the rights to vote to women and blacks (or rather, extending constitutional protections) are two completely different issues.

    For one, RvW doesn’t involve a constitutional amendment in any way. Period. you are comparing apples to small puppies, and trying to tell me they are all oranges.

    The issue Kevin is taking is that a clearly worded motion (and is clearly worded in few words) is being considered a revision, when the term for amending clearly, in plain language, describes exactly what Prop 8 is. And that thing is it is not a revision.

    Republicans just don’t know anything about our government, how it works, and how it was intended to work.

    You nitwit…

    I take EXTREME offense at you coming here, after likely failing every civics class you ever took (no doubt because your teachers were too stupid to recognize your brilliance), and suggesting that using plain text of documents is not a valid means of deciding what those documents say.

    Lemme test you… If I were to ban someone from this side-blog – lets say it’s you, for example – would I be violating your right to Free Speech?

    Comment by Scott Jacobs — 11/21/2008 @ 7:51 am

  6. Kevin, I should note that while I think the court should hear the case, I also think it should reject the challenge.

    That said, if they confine the challenge specifically to “revokes a fundamental right”, then I think all of the ones you listed except Prop. 115 would qualify.

    Comment by aphrael — 11/21/2008 @ 7:51 am

  7. “From what I remember, it wasn’t an initiative that got women the right to vote. ”

    No, it was an amendment to the constitution. Just like Prop 8. Would you feel comfortable knowing all it would do to strike down that provision of the constitution would be for 5 judges to declare it was a “revision” not an “amendment” to the constitution?

    And would someone please tell me how this “revision” argument is in any way different, on an intellectual level than that “the sixteenth amendment was never properly ratified” nonesense that circles around anti-tax extremists and is roundly ridiculed by many of the same folks that are taking this Constitutional challenge seriously.

    Comment by Sean P — 11/21/2008 @ 7:54 am

  8. If Prop. 8 is a revision rather than an amendment, how can the majority’s decision discovering a right of same sex marriage in the state Constitution not be a revision.

    Comment by Stu707 — 11/21/2008 @ 8:12 am

  9. Aprhael:

    Sorry, that was poorly written. I was saying that the initial ruling as to gay marriage, which allowed gays to marry, should lead to a conclusion that the current marriages not be annulled. (Your alternate reading of what I wrote is the fault of the writer.)

    –JRM

    Comment by JRM — 11/21/2008 @ 8:33 am

  10. Kevin says, in part, “But I do not believe that right can be founded solely on a court’s divination of constitutional entrails.”

    Big deal. You still voted against Proposition 8, so in fact you do agree with a court’s “divination at constitutional entrails.”
    If a court’s meddling really bothered you, then you would have punished them by voting Yes on 8.

    Comment by Official Internet Data Office — 11/21/2008 @ 8:37 am

  11. I’m not sure how I feel about the initiative vs. revision argument, but I do agree with you on the necessity of keeping the courts out of this. I used to believe that the only way gay marriage (of which I am a supporter) would be allowed was with a court decision. But the last few weeks have made it perfectly clear that if that happened, it would be the second coming of Roe v. Wade and the issue would never be resolved. It’s been forty years and we’re still arguing and having ballot initiatives over abortion (which I do not support), whereas if they had gone the route of popular vote in the first place, we might not be having this argument.

    Comment by tjwilliams — 11/21/2008 @ 8:40 am

  12. “You still voted against Proposition 8, so in fact you do agree with a court’s “divination at constitutional entrails.” If a court’s meddling really bothered you, then you would have punished them by voting Yes on 8.”

    Come again? It is possible to walk and chew gum at the same time. It is also possible to support the right of two people of the same sex to get married and at the same believe the court should stay out of it and leave it to the legislators or the people. Prop 8 was a decision of the people, which is what the critics of the State Supreme Court ruling earlier this year were demanding, so why shouldn’t I be able to vote my conscience (ie: no)?

    Comment by Sean P — 11/21/2008 @ 8:46 am

  13. If a court’s meddling really bothered you, then you would have punished them by voting Yes on 8.

    Logical fallacy. Simply because he considers the manner by which the court arrived at it’s conclusion does not mean he should have voted from Prop. 8.

    For example, while I strongly disagree with the way the Supreme Court ruled on Roe v Wade, that does not mean I would vote in favor of a constitutional amendment banning abortion…

    Comment by Scott Jacobs — 11/21/2008 @ 8:54 am

  14. Kevin has devoted his whole first blog post to criticising reckless judicial activism, but it turns out that Kevin voted in a way that encourages more erratic judicial behavior. That’s called cognitive dissonance. Pretending that tyrannical courts are an important subject to him, while at the same time admitting he voted against Proposition 8, is called being disingenuous.

    Comment by Official Internet Data Office — 11/21/2008 @ 9:03 am

  15. No, it the OPPOSITE of disingenuity. If Kevin (or Scott, or myself) were being disingenuous, we would defend the decision of the California Supreme Court which came to the “right” decision, as far as public policy goes. But because I care, not just about the right public policy, but that the rule of law be respected, I opposed the ruling anyway, on principle.

    Comment by Sean P — 11/21/2008 @ 9:07 am

  16. That’s called cognitive dissonance.

    No, it is called disagreeing with the manner used to reach a conclusion, and is perfectly valid.

    As I said, I don’t agree with abortion, but would not vote to make it illegal. That does not make it hypocritical of me to find the manner in which the SCotUS ruled in RvW quite repugnant.

    There are, in fact, many layers of principle, such as the desire to see courts act in a rational manner consistent with plain text and precedent.

    The Cali SC decided a matter that should have been (and in fact way) decided upon by the Unwashed Masses. That their decision was one Kevin agreed with doesn’t mean they did it in the right way.

    I suspect Kevin cares about the PROCESS in addition to the outcome, which is why he had trouble with the ruling.

    Please don’t insult his integrity again… It makes me feel all twitchy and angry…

    Comment by Scott Jacobs — 11/21/2008 @ 9:11 am

  17. If you oppose a court ruling on principle, you should vote the opposite way. That’s called having principles. We have elections and voting to produce practical real-world results, not points in some college seminar where the students marvel at the assistant professor’s ability to have two contrary thoughts in his head at the same time.

    If you disagree with Roe v. Wade, then the question of supporting a Constitutional Amendment to ban abortion should be answered, “It depends on the wording of the Amendment.” There is no such thing as credit for understanding the delicate balances of the branches of government–there is only the final product, the policy that becomes law. If you don’t support your policy, the other guy’s policy will become law. Kevin, I believe, wanted gay marriage to be lawful all along, so if he wants to do some whining, it should be about that subject, not about judicial activism.

    Comment by Official Internet Data Office — 11/21/2008 @ 9:21 am

  18. Official Internet Data Office: once the ballot initiative qualified, the question the voters were being asked was “should gay couples be allowed to marry and have their marriages recognized by the state”. It’s entirely reasonable for someone to vote their conscience on that issue without reference to the seperate question of “should Judges be rewarded for activism?”.

    The place to address the latter question is not a vote on a substantive matter of policy; it’s the vote on whether or not to re-elect the judges responsible.

    I want gay marriage to be legal; I voted against Prop. 22 and against Prop 8. I also don’t want courts to decide, and will happily vote against re-electing the judges who declared gay marriage to be legal. These are not inconsistent positions.

    Comment by aphrael — 11/21/2008 @ 9:29 am

  19. not points in some college seminar where the students marvel at the assistant professor’s ability to have two contrary thoughts in his head at the same time.

    Two points:

    1) These aren’t contrary thoughts, save in your own quisling mind. It is very possible to disagree with the manner in which a result is reached, and to agree with the end decision. The process is very important, as decision by fiat is very, very damaging to the system as a whole. The issue should be decided by the electorate, not a handful of judges. Kevin obviously feels this way, and while he disagrees with the outcome of the voting on Prop.8, he feels that the system has spoken.

    2) voting against something as a means to punish a group that will be almost wholly unaffected by the outcome is, frankly, one of the dumbest notions possible. I believe the term is “cut off your nose to spite your face”, and is just plain retarded.

    Comment by Scott Jacobs — 11/21/2008 @ 9:34 am

  20. It appears I agree with aphrael…

    I think I feel dirty, but I’m not sure… :)

    Comment by Scott Jacobs — 11/21/2008 @ 9:35 am

  21. OIDO–

    I voted NO on Prop 8 because it was finally an up or down (well, down or up) vote on same-sex marriage. The Court’s behavior was not on the ballot — that will happen soon enough.

    I believe that CJ Ronald George is up for retention in 2010, and I intend to vote against retention. Ming Chin is also up, and I think I’ll vote in favor. Should there be a recall election, I will vote on the individual justices’ behavior, not on gay marriage.

    Capiche?

    Comment by Kevin Murphy — 11/21/2008 @ 9:37 am

  22. If Kevin, as a supporter of gay marriage, voted Yes on 8 just to show his disdain for judicial activism, then I would be impressed. That would having a conscience. But Kevin didn’t do that.

    Of course, we can’t read the mind of each voter when they vote. We can’t tell if a vote against Proposition 8 was a vote for gay marriage, or a vote against the initiative process, or a vote supporting the right of judges to make it up as they go along. But a vote against Proposition 8 certainly was no disapproval of judicial activism, in practical terms. Without judicial activism, Proposition 8 wouldn’t have been on the ballot.

    Comment by Official Internet Data Office — 11/21/2008 @ 9:41 am

  23. If Kevin, as a supporter of gay marriage, voted Yes on 8 just to show his disdain for judicial activism, then I would be impressed. That would having a conscience

    Again, that’s one of the most retarded things ever.

    He should vote against his conscience because judges got the right result (in his eyes) but did it the wrong way?

    You just can NOT wrap your head around the idea that the method is important, can you?

    Comment by Scott Jacobs — 11/21/2008 @ 9:44 am

  24. Now I see that Kevin also says, “I voted NO on Prop 8 because it was finally an up or down (well, down or up) vote on same-sex marriage.”

    Well, finally we’re getting somewhere. Kevin voted No on 8 and No on 22. It’s the policy that mattered most, not so much the judicial activism in between.

    And I agree with that practical outlook. People can agree to disagree on the merits of gay marriage. That’s what Proposition 8 meant, in my view, and no more. One doesn’t get extra points for voting Yes on 8 while having deep reservations about the initiative process, just as one doesn’t get extra points for voting No on 8 while having deep reservations about the conduct of judges. Only the final policy that becomes law really matters, and any lingering doubts about the process where the judges changed the law, or whether the initiative process is a good idea, is not even close in importance.

    It’s not that the method is never important, it’s just that making a big show of one’s concern about the process, as Kevin did, obscures the fact that votes matter, and policy results matter, much more than any technical defects or merits of the process.

    As for you, Jacobs, I said I would be impressed with Kevin’s integrity if he had voted Yes on 8 because his great concern about judicial activism came first before his support of gay marriage. But I would also be impressed if someone opposed gay marriage, yet voted No on 8 because they never like the initiative process on principle.

    However, that’s not the way I vote on issues or choose candidates. Only policy results matter, and if you don’t believe that’s the right way to look at it, ask a Democrat.

    Comment by Official Internet Data Office — 11/21/2008 @ 10:13 am

  25. And I would say that I would be impressed if you could grasp the idea that the Cali justices didn’t give a good God Damn about how many people voted no “to punish them”, because they aren’t actually punished.

    But I would only be impressed because it means that Hell would have also frozen over.

    Comment by Scott Jacobs — 11/21/2008 @ 10:35 am

  26. If a court’s meddling really bothered you, then you would have punished them expressed your outrage by voting Yes on 8.
    If a court’s meddling really bothered you, then you would have punished them given them a slap in the face by voting Yes on 8.

    There you go. Understand it a little better now? I can’t believe you focused on the word “punished.”

    Comment by Official Internet Data Office — 11/21/2008 @ 10:46 am

  27. Again, neither a yes or no vote would have been a slap in the face, and to vote for something you disagree with because you dislike activist judges is, frankly, very very stupid.

    Comment by Scott Jacobs — 11/21/2008 @ 10:53 am

  28. Official Internet Data Office: I take what you are saying as “If a court’s meddling really bothered you, then you would have punished gay people by voting Yes on 8″ and “If a court’s meddling really bothered you, then you would have given gay people a slap in the face by voting Yes on 8.”

    If you want to express outrage and slap the court in the face, then vote against the judges or recall them; don’t go hurt other people in response to what the court has done.

    Comment by aphrael — 11/21/2008 @ 11:01 am

  29. Jacobs, I said I’d be impressed by Kevin or anyone voting against something just because of an objection in principle to the process, but not that I approve of that or would ever do that. In fact, I made clear any minor quibbles about the process should not interfere with the main decision on policy. But I’m not impressed by someone who objects to the process that forced another vote on the gay marriage issue, but then voted for gay marriage anyway. It’s something like Senator Arlen Specter’s vote of “not proven” and citation of Scottish law during the Clinton impeachment trial. It’s impressive that he could claim to have such lofty principles, and his vote was memorable, but that vote was also ridiculous. Specter’s practical choices were guilty or not guilty.

    Aphrael, I’m asking people to separate the basic policy effect of their vote on Proposition 8 from any approval or disapproval of renegade judges or of the initiative process. That said, there are plenty of people who enthusiastically voted Yes on Proposition 8, and Yes on 22 (in 2000), and didn’t care whether there were judges in California or not. Their policy choice was no gay marriage.

    Since I’m getting flak from both Right and Left here, I guess that makes me a maverick.

    Comment by Official Internet Data Office — 11/21/2008 @ 11:42 am

  30. Aphrael, I’m asking people to separate the basic policy effect of their vote on Proposition 8 from any approval or disapproval of renegade judges or of the initiative process.

    No, you are actually suggesting the exact opposite.

    You are suggesting that someone should have voted Yes on Prop. 8 if they disagreed with the actions/process of the judges, regardless of their actual stance on the issue Prop. 8 addressed, which is so very much not “separat[ing] the basic policy effect of their vote on Proposition 8 from any approval or disapproval of renegade judges”.

    It appears you don’t even understand your own position, let alone a principled stance from someone else. That doesn’t make you a maverick, it makes you a moron.

    Comment by Scott Jacobs — 11/21/2008 @ 11:52 am

  31. I’ve been insulted before, but comparing me to Specter? That’s low.

    Comment by Kevin Murphy — 11/21/2008 @ 11:54 am

  32. I would be shocked if the Court invalidates Prop 8 on the grounds asserted by the challengers.

    Don’t overlook the fact that Justice Kennard, one of the 4 Justices who voted in favor of gay marriage rights in the case that led to Prop 8, is the one Justice who voted AGAINST hearing the challenge.

    That suggests that she sees no merit in the position put forward by the challengers, so she is not likely to vote with them to overturn Prop 8 on the basis that if violated the “amendment/revision” nonsense.

    Further, it won’t be lost on the Court that to invalidate Prop. 8 would be the second instance in just 10 years where the Court undermined the very foundation of representative democracy.

    The Constitution is an organic document. It has force by virtue of the fact that it was created by the people of the state — thus it derives its sole basis for authority from those people.

    Twice the people of the state have made their views known on this issue. I don’t see the Court thinking for the second time that it knows better.

    Comment by WLS — 11/21/2008 @ 12:01 pm

  33. WLS–

    You’re probably right, assuming that one of the other justices doesn’t buy the revision thing on its own. Then again, they accepted the cases 6-1. They could have just heard the existing marriage issue.

    Comment by Kevin Murphy — 11/21/2008 @ 12:08 pm

  34. If they’re intending to squash the ‘revision’ argument, hearing the cases makes sense; it settles the controvery *now*, in no uncertain terms.

    Comment by aphrael — 11/21/2008 @ 12:15 pm

  35. You are suggesting that someone should have voted Yes on Prop. 8 if they disagreed with the actions/process of the judges, regardless of their actual stance on the issue Prop. 8 addressed

    No, I didn’t.

    I said I would be impressed by their close adherence to principle on the process issue, but it’s not something that I would do. I’m impressed by skydiving and gymnastics, too, but I wouldn’t do it.

    Here, Jacobs, let me make it clear enough so that even you can understand it. Yes on 8 meant no gay marriage in California. If people voted Yes on 8 only because they disagreed with judicial activism, despite favoring gay marriage, that would be very unusual, but every Yes on 8 counted, and for whatever reason the voter cast it. Maybe some mistakenly thought that a Yes on 8 meant approval of gay marriage. But the best reason people should have used to vote Yes on 8 was the substantive policy issue, no gay marriage.

    Comment by Official Internet Data Office — 11/21/2008 @ 12:18 pm

  36. No, I didn’t.

    The hell you didn’t…

    If a court’s meddling really bothered you, then you would have punished them by voting Yes on 8.

    I am well aware what a Yes or No vote meant for Prop. 8, just as I am well aware that one can take strong exception to the actions of an activist court on the issue of Gay Marriage, while still supporting gay marriage.

    You, however, seem quite unable to wrap your head around that idea.

    Comment by Scott Jacobs — 11/21/2008 @ 12:29 pm

  37. If a court’s meddling really bothered you, then you would have punished them by voting Yes on 8.

    Jacobs, this is the sentence of mine with which you seem to be having the most trouble.

    Yes, no judge was removed from the bench (i.e., “punished”) by the passage of Proposition 8, but it should be easy for even you to understand the concept of how a Yes on 8 was, for some people, a rejection of gay marriage and, tacitly, of the judicial activism that placed the question before state voters a second time. The mechanism has been expressed many times before by voters when they use the slogan, “Send them a message!”

    You also say,

    . . .one can take strong exception to the actions of an activist court on the issue of Gay Marriage, while still supporting gay marriage.”

    and that’s right. I have always agreed with that. But Proposition 8 didn’t ask anyone about judicial activism, just about approving a certain clause be added to the California constitution.

    Now, if judicial activism bothers you that much, you should figure out a way to make your “strong exceptions to the actions of an activist court” into some kind of other law.

    Comment by Official Internet Data Office — 11/21/2008 @ 1:21 pm

  38. you should figure out a way to make your “strong exceptions to the actions of an activist court” into some kind of other law.

    In California, judges have to sit for re-election periodically.

    Comment by aphrael — 11/21/2008 @ 1:51 pm

  39. The judges on the California Supreme Court are appointed by the Governor, and only “confirmed” by the voters. Then they come up for re-confirmation every twelve years. Twelve. There is no opposition in these confirmation votes–so it’s not an election.

    Comment by Official Internet Data Office — 11/21/2008 @ 2:18 pm

  40. And judges have failed reconfirmation before.

    Comment by aphrael — 11/21/2008 @ 2:26 pm

  41. What about AG Jerry Brown? And Schwarzenegger? And our LA County Supervisors too, who Kevin did not mention but who voted to fight Prop 8 in court even though IT WON HERE in this County, which they purport to represent. (With taxpayer money, of course.) I am incensed that these people feel free to act contrary to the expressed will of the people they purport to represent, and from whom their power derives. And to do so wiht the People’s money. What breathtaking elitism! Anyone think that there might be a basis for some kind of legal action here? The media won’t bring it up, of course. (The LA Times article about the LA Supes’ vote failed to even mention that Prop 8 had won in LA County. No doubt they would have made it the focus of the article had it been the other way around.) I do not think they should be allowed to get away with this. We cannot sue the CA Supremes for being judicial activists, but maybe we can sue some of these characters for forsaking their roles?

    Comment by mum2cleo — 11/21/2008 @ 4:07 pm

  42. Aphrael:

    The current state of those marriages is indeterminate. AG Brown has said that in his view they are still valid, because the initiative isn’t retroactive, and I doubt anyone would have standing to sue.

    Right now, I suspect you are right. But it’s a matter of time before some formerly married gay couple splits up, or until some married gay guy dies, and the question of whether they were or weren’t legally married becomes material to parties that do have standing to sue. My unsolicited, informal, IANAL (I am one, of course, but not in that area of practice) advice to any gay couple in California that got married then and wants the legal protections of marriage now is to domestic partnered. All the same benefits, and none of the uncertainty.

    Comment by Xrlq — 11/21/2008 @ 5:54 pm

  43. Considering how the people of the state of California had already voted to ban gay marriage in 2000, wouldn’t anyone who believed in the “will of the people” also have voted yes on 8, regardless of their opinion? The opinion of the people had already been well known, so wouldn’t you, if you truly believed in the rule of the Constitution, have voted yes on 8 to validate the will of the people?

    I agree that complaining about judicial activism, then essentially voting for the judges decision by voting to agree with them that the will of the people was not good enough in 2000, regardless of personal opinion, seems kind of silly.

    Comment by Jerry — 11/21/2008 @ 6:55 pm

  44. Jerry–

    Nice try, but no. The will of the people in 2000 is not the same as it is in 2008. Consider George W’s chances this time around.

    A vote on “do you favor X” is just that, because all that changes is X. It’s not like the justices said they’d resign, or even be really embarrassed, if it passed or anything.

    Apparently there were people who changed their mind as the vote was a lot closer this time. Except for the fact that folks are so intent on poisoning the waters, I would’ve thought that the next time it came up (on another vote to amend), it would go the other way.

    Comment by Kevin Murphy — 11/21/2008 @ 8:02 pm

  45. mum2cleo–

    The LA City Council also voted a resolution against Prop 8, and it likely won citywide, too. Just goes to show you who funds campaigns and who doesn’t.

    Comment by Kevin Murphy — 11/21/2008 @ 8:06 pm

  46. The ban on same sex marriage treats a part of our population differently from the rest of the population without cause. The ban being rationalized by the belief that homosexuality is aberrant and voluntary. One person’s feelings are not open to debate until he is willing to discuss them, but the opinion that homosexuality is a matter of choice can be refuted, and has been refuted by research.

    In short, people are not entirely hard-wired when it comes to sexual preference. We are flexible in that matter, as has been shown by the sexual behavior of men in prison and similar situations.

    What people have forgotten is that those amendments dealing with rights do not, by and large, guarantee those rights, rather they bar the Congress of the United States from restricting those rights. Those rights so formally protected are simply those considered important enough to be named. The Ninth Amendment extends the same protection to those rights not considered important enough to name, having to rely on good sense for their inclusion.

    As far as I know the principle of equal justice under the law falls under the 9th. It is an unspecified right that enjoys the same protection from restriction named rights do. Where homosexuality is concerned it comes down to, “An it harm none.” That is, so long as the normal behavior associated with the subject causes no harm to others or to society, then the people engaged in it cannot be denied what is a basic human right.

    Proposition Eight violates this right to equal justice under the law. It is, in effect, in violation of the Ninth Amendment to the Constitution of the United States. While it is a part of the supreme law for the State of California, it is overruled by the supreme law of the United States of America, which renders it null and void.

    Frankly saying that Prop 8 is a revision and not a state amendment is meaningless. That because its status as an amendment does not counter the fact it violates the U.S. Constitution. As a matter of fact, I suspect it contradicts the California Constitution in a number of ways, and should have been disqualified from the ballot in the first place. If there is no such provision let me offer this as a suggestion . . .

    No proposition shall be approved for any California state ballot that calls for the violation of State or Federal law.

    Yes, I am of the opinion that lawyers as a class tend to be too dang persnickity.

    Comment by Alan Kellogg — 11/22/2008 @ 11:55 pm

  47. Proposition Eight violates this right to equal justice under the law. It is, in effect, in violation of the Ninth Amendment to the Constitution of the United States.

    Actually, the 9th amendment would put this sort of decision squarely on the shoulders of the states, since “marriage” is not mentioned, and thus would be a matter for the states (much like abortion SHOULD be).

    Right?

    Comment by Scott Jacobs — 11/23/2008 @ 12:04 am

  48. I don’t see the Court thinking for the second time that it knows better.
    Comment by WLS — 11/21/2008 @ 12:01 pm

    Never underestimate the arrogance of judicial power.

    Comment by Another Drew — 11/25/2008 @ 8:27 am

  49. Also, for those who wish to remind politicians at the ballot box about their previous behavior, our good AttyGen plans to run for Gov again in 2010.

    “Moonbeam” Brown might find that the voters have long, and strong, memories.

    Comment by Another Drew — 11/25/2008 @ 8:34 am

  50. AD–

    “Moonbeam” Brown might find that the voters have long, and strong, memories.

    Well, yes (I’ve had the privilege of voting against him for governor before) but will his opponent be a supporter of Prop 8? Certainly Arnold isn’t and there is no guarantee the next Republican will be. Will it matter?

    I’m pretty sure the economy and the state budget will make everything else go away as issues by 2010. No one will care about this if unemployment is at 11% and the state is laying off cops to pay bureaucrat pensions.

    Comment by Kevin Murphy — 11/26/2008 @ 2:07 pm

  51. Alan–

    I think you’d have a better shot with the 14th than the 9th (AD is right, there). Of course, basing on the federal constitution means the Supreme Court in Washington has the last say. Might not go the way you want.

    Comment by Kevin Murphy — 11/26/2008 @ 2:11 pm

  52. In a field of likely Democratic candidates including Brown, Feinstein, Villaraigosa, and Newsom, I’m having a hard time deciding who to vote for.

    Poizner, anyone?

    Comment by aphrael — 11/26/2008 @ 2:14 pm

  53. In California, judges have to sit for re-election periodically.
    Comment by aphrael — 11/21/2008 @ 1:51 pm

    Don’t you mean to say that the have to “stand” for re-election?
    And, technically, it isn’t an election, it is a re-confirmation,
    since they run un-opposed, and it is an up-or-down vote.

    Comment by Another Drew — 11/26/2008 @ 3:05 pm

  54. “In short, people are not entirely hard-wired when it comes to sexual preference. We are flexible in that matter, as has been shown by the sexual behavior of men in prison and similar situations.”

    How confident are you in this statement? Are you so confident that the Right’s “Horatio-at-the-Bridge” “strategy” on Gay Marriage will fail so spectacularly that Evangelical Conservatism will be sent to the ash-heap, that you’re willing to make this statement in the hopes no one notices?

    If so, I hope you realize that you just legitimized the “work” of those “ex-gay” “ministries.” After all, if sexuality is flexible (and I’m inclined to think it is), why can’t Bible-thumpers bend sexuality to socially condition folks?

    Comment by Brad S — 12/20/2008 @ 9:03 am

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