Prop 8 Unconstitutional

[Freeky]

Unlike Lucy with her football, sometimes the universe lets people think for a second.  And then we're back to falling on our ass when we run up to kick.

Sometimes it's okay to cheer a bit when something good happens.

Just saying.  You can be sad/angry when the shit rain starts back up.  But for the time being, it's actually okay to be happy.

Indeed.  And in fact I was happy, but not allowing myself to get too hopeful. 

Because I've seen enough reality to know where that would go.

[Roly Poly Oly-Garch]

http://slatest.slate.com/posts/2012/02/07/proposition_8_constitutional_california_court_decides_tuesday.html

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples," Judge Stephen Reinhardt wrote for the majority.

Sure, there's gonna be an appeal, but at least someone was acting rationally...

Some good news.  Hard to tell if they'll appeal...  if they push it, it will be decided, and they won't have it as a political platform any more...

Heard a report on this and it said that the decision was careful to only address Prop 8 and not gay marriage. If it goes to the Supreme Court, I'd be floored if the bigger issue of gay marriage came up. Third rail, that.

[Mesozoic Mister Nigel]

http://slatest.slate.com/posts/2012/02/07/proposition_8_constitutional_california_court_decides_tuesday.html

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples," Judge Stephen Reinhardt wrote for the majority.

Sure, there's gonna be an appeal, but at least someone was acting rationally...

Some good news.  Hard to tell if they'll appeal...  if they push it, it will be decided, and they won't have it as a political platform any more...

Heard a report on this and it said that the decision was careful to only address Prop 8 and not gay marriage. If it goes to the Supreme Court, I'd be floored if the bigger issue of gay marriage came up. Third rail, that.

Wait... are you familiar with California's proposition 8?

Ballot title: Eliminates Rights of Same-Sex Couples to Marry.

Full text:

Section I. Title

        This measure shall be known and may be cited as the "California Marriage Protection Act."

    Section 2. Article I. Section 7.5 is added to the California Constitution, to read:

        Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

It is a little bit hard to address proposition 8 without addressing same-sex marriage.

May I ask what your level of expertise is regarding Constitutional law? I ask mainly because you seem to have a lot of interesting opinions on Constitutional law, and not being an expert myself I'm not exactly sure what to make of them.

[Luna]

Actually, Nigel, what they'd be attacking in court isn't Prop 8, itself.  For an appeal to succeed, they'd have to prove that the district court made an error... and that's gonna be tough.  Quote is from the Christian Science Monitor.  (The places I'll go to research this stuff before talking...)

But others suggest that Judge Reinhardt's opinion might have been written precisely to try to dissuade the Supreme Court from overturning it – and it could work.

In short, Reinhardt said the decision to overturn Prop. 8 was not founded on a fundamental right for gays and lesbians to marry. Rather, Reinhardt's decision was based on a 1996 Supreme Court decision, Romer v. Evans, which struck down a Colorado law – passed by state voters – that prevented local governments from enacting measures to protect gay and lesbian residents.

The Supreme Court struck down Colorado's Amendment 2 because it "withdraws from homosexuals, but no others, specific legal protection," wrote Justice Anthony Kennedy in the majority opinion. So, reasoned Reinhardt, Prop. 8 also unfairly singles out gays and lesbians.

It irrationally denies them access to the term "marriage," even though they already have the legal protections of marriage through domestic-partnership laws, and it also takes away a legal right they already had, Reinhardt wrote. (Earlier in 2008, a state Supreme Court ruling had made gay marriage legal.)

http://www.csmonitor.com/USA/Justice/2012/0208/Prop.-8-ruling-why-it-might-not-go-to-the-Supreme-Court

The appeal would have to argue, NOT against gay marriage, but that the court was incorrect in stating that a state does not have the right to pass a law removing civil rights from a specified group of people... and THAT is going to be tough to do.

[Mesozoic Mister Nigel]

Actually, Nigel, what they'd be attacking in court isn't Prop 8, itself.  For an appeal to succeed, they'd have to prove that the district court made an error... and that's gonna be tough.  Quote is from the Christian Science Monitor.  (The places I'll go to research this stuff before talking...)

But others suggest that Judge Reinhardt's opinion might have been written precisely to try to dissuade the Supreme Court from overturning it – and it could work.

In short, Reinhardt said the decision to overturn Prop. 8 was not founded on a fundamental right for gays and lesbians to marry. Rather, Reinhardt's decision was based on a 1996 Supreme Court decision, Romer v. Evans, which struck down a Colorado law – passed by state voters – that prevented local governments from enacting measures to protect gay and lesbian residents.

The Supreme Court struck down Colorado's Amendment 2 because it "withdraws from homosexuals, but no others, specific legal protection," wrote Justice Anthony Kennedy in the majority opinion. So, reasoned Reinhardt, Prop. 8 also unfairly singles out gays and lesbians.

It irrationally denies them access to the term "marriage," even though they already have the legal protections of marriage through domestic-partnership laws, and it also takes away a legal right they already had, Reinhardt wrote. (Earlier in 2008, a state Supreme Court ruling had made gay marriage legal.)

http://www.csmonitor.com/USA/Justice/2012/0208/Prop.-8-ruling-why-it-might-not-go-to-the-Supreme-Court

The appeal would have to argue, NOT against gay marriage, but that the court was incorrect in stating that a state does not have the right to pass a law removing civil rights from a specified group of people... and THAT is going to be tough to do.

Actually, Luna, I understand that. Was it meant to contradict something I said? Or rather that "Actually", do you mean "Also"?

The law, Proposition 8, had verbiage which was specific to same-sex marriage. The judge ruled that it is unconstitutional to single out a certain group to strip them of civil rights. If it goes to a higher court, they would have to overturn (or more likely, uphold) that judge's ruling, which would have massive widespread ramifications for same-sex marriage nationwide because of the nature of the proposition being disputed, even though that ruling does not in itself legalize same-sex marriage. Rather, it makes it illegal to ban it.

[Cain]

Under the traditional understanding of common law, that would, in a sense, make it legal (not illegal yet not legal being more of a hallmark of the Continental system of law instituted by Napoleon), but, then, the rule of law's kinda had a rough decade, and nothing is really working the way it should anymore.

[Mesozoic Mister Nigel]

Under the traditional understanding of common law, that would, in a sense, make it legal (not illegal yet not legal being more of a hallmark of the Continental system of law instituted by Napoleon), but, then, the rule of law's kinda had a rough decade, and nothing is really working the way it should anymore.

Right... it would become de facto legal without the need for a specific law to legalize it. And then we would get to watch the clusterfuck of backwoods-assholes trying to find a way around it.

[Roly Poly Oly-Garch]

http://slatest.slate.com/posts/2012/02/07/proposition_8_constitutional_california_court_decides_tuesday.html

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples," Judge Stephen Reinhardt wrote for the majority.

Sure, there's gonna be an appeal, but at least someone was acting rationally...

Some good news.  Hard to tell if they'll appeal...  if they push it, it will be decided, and they won't have it as a political platform any more...

Heard a report on this and it said that the decision was careful to only address Prop 8 and not gay marriage. If it goes to the Supreme Court, I'd be floored if the bigger issue of gay marriage came up. Third rail, that.

Wait... are you familiar with California's proposition 8?

Ballot title: Eliminates Rights of Same-Sex Couples to Marry.

Full text:

Section I. Title

        This measure shall be known and may be cited as the "California Marriage Protection Act."

    Section 2. Article I. Section 7.5 is added to the California Constitution, to read:

        Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

It is a little bit hard to address proposition 8 without addressing same-sex marriage.

May I ask what your level of expertise is regarding Constitutional law? I ask mainly because you seem to have a lot of interesting opinions on Constitutional law, and not being an expert myself I'm not exactly sure what to make of them.

Been a hobby for a bit over a decade. I can count on one hand the number of cases that I've researched exhaustively, and another dozen or so that I've researched just enough to fully follow the reasoning. There's a few specific areas of interest that I would say I have, for an amateur, a high level of expertise in, and many areas that I don't even have the expertise to accurately assess my ignorance on (nor the interest to ever remedy that). My general focus is on judicial attitudes over time. I like to be able to identify when a decision is in or out of character for a particular generation of court. I'm overwhelmingly strongest in my understanding of the court from the mid 90's to present, and it's the only time-frame that I would even dare to use the word "expertise" in regards to. Historically speaking, the depression era and late 18th/early 19th century litigation is what I'm most familiar with. Just dipping my toes in reconstruction era law, currently.

The current court has a stated and demonstrated preference to answer a question as narrowly as possible, and leave the job of getting the law in line with the constitution to the legislative branch. I haven't yet read the Prop 8 decision issued by the 9th Circuit, but I looked at Prop 8 and just barely started digging into the California State Constitution before finding what could easily be an argument for striking Prop 8, under the CA Constitution alone. Tricky argument that, since Prop 8 was an amendment to the CA constitution itself, but already there's a basis for deciding the fate of Prop 8 that's not only limited in scope to CA, but also has rendered the issue of "gay marriage" completely irrelevant to the discussion. If it took me 5 minutes to find that, I'm 99.999% certain the Supreme Court, if it even hears this case, will quite adeptly do so while avoiding any questions it would prefer not to answer.

[Cain]

Under the traditional understanding of common law, that would, in a sense, make it legal (not illegal yet not legal being more of a hallmark of the Continental system of law instituted by Napoleon), but, then, the rule of law's kinda had a rough decade, and nothing is really working the way it should anymore.

Right... it would become de facto legal without the need for a specific law to legalize it. And then we would get to watch the clusterfuck of backwoods-assholes trying to find a way around it.

I can actually see that being Obama admin's game plan for this.  It fits with his entire approach to government, so I'd be very surprised if someone there wasn't pushing this as a preferred solution to the problem (other than euthanising the entire GOP for early onset dementia).

[Mesozoic Mister Nigel]

http://slatest.slate.com/posts/2012/02/07/proposition_8_constitutional_california_court_decides_tuesday.html

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples," Judge Stephen Reinhardt wrote for the majority.

Sure, there's gonna be an appeal, but at least someone was acting rationally...

Some good news.  Hard to tell if they'll appeal...  if they push it, it will be decided, and they won't have it as a political platform any more...

Heard a report on this and it said that the decision was careful to only address Prop 8 and not gay marriage. If it goes to the Supreme Court, I'd be floored if the bigger issue of gay marriage came up. Third rail, that.

Wait... are you familiar with California's proposition 8?

Ballot title: Eliminates Rights of Same-Sex Couples to Marry.

Full text:

Section I. Title

        This measure shall be known and may be cited as the "California Marriage Protection Act."

    Section 2. Article I. Section 7.5 is added to the California Constitution, to read:

        Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

It is a little bit hard to address proposition 8 without addressing same-sex marriage.

May I ask what your level of expertise is regarding Constitutional law? I ask mainly because you seem to have a lot of interesting opinions on Constitutional law, and not being an expert myself I'm not exactly sure what to make of them.

Been a hobby for a bit over a decade. I can count on one hand the number of cases that I've researched exhaustively, and another dozen or so that I've researched just enough to fully follow the reasoning. There's a few specific areas of interest that I would say I have, for an amateur, a high level of expertise in, and many areas that I don't even have the expertise to accurately assess my ignorance on (nor the interest to ever remedy that). My general focus is on judicial attitudes over time. I like to be able to identify when a decision is in or out of character for a particular generation of court. I'm overwhelmingly strongest in my understanding of the court from the mid 90's to present, and it's the only time-frame that I would even dare to use the word "expertise" in regards to. Historically speaking, the depression era and late 18th/early 19th century litigation is what I'm most familiar with. Just dipping my toes in reconstruction era law, currently.

The current court has a stated and demonstrated preference to answer a question as narrowly as possible, and leave the job of getting the law in line with the constitution to the legislative branch. I haven't yet read the Prop 8 decision issued by the 9th Circuit, but I looked at Prop 8 and just barely started digging into the California State Constitution before finding what could easily be an argument for striking Prop 8, under the CA Constitution alone. Tricky argument that, since Prop 8 was an amendment to the CA constitution itself, but already there's a basis for deciding the fate of Prop 8 that's not only limited in scope to CA, but also has rendered the issue of "gay marriage" completely irrelevant to the discussion. If it took me 5 minutes to find that, I'm 99.999% certain the Supreme Court, if it even hears this case, will quite adeptly do so while avoiding any questions it would prefer not to answer.

It has rendered gay marriage irrelevant to the conversation, but it has not rendered the conversation irrelevant to gay marriage.

[Roly Poly Oly-Garch]

It has rendered gay marriage irrelevant to the conversation, but it has not rendered the conversation irrelevant to gay marriage.

Exactly. Instead of "If you're not with us, you're against us", it's "If you're not with us, you're more effectively against those against us." A part of me would love to see the Supreme Court just pull the 14th on all remaining marriage inequality states, but I gotta kinda bow to the wisdom of letting people, their states and their legislatures just kinda wake up on their own, in their own time, as seems to be happening lately. Probably be considerably less blow-back that way, plus it kind of fills me with warm fuzzy's watching all that money, time, and energy go into passing Prop 8 only to have a comparably insignificant amount of resources accomplish striking it. And by smacking down Prop 8 and only Prop 8, enough denial is left intact to allow for the possibility that I'll get to see huge amounts of money, time and energy go into passing Prop 9, 10, 11, and so on. Call me a dreamer, but wouldn't it be fabulous if gay marriage did to the religious right what Afghanistan did to the Soviet Union?

[Mesozoic Mister Nigel]

It has rendered gay marriage irrelevant to the conversation, but it has not rendered the conversation irrelevant to gay marriage.

Exactly. Instead of "If you're not with us, you're against us", it's "If you're not with us, you're more effectively against those against us." A part of me would love to see the Supreme Court just pull the 14th on all remaining marriage inequality states, but I gotta kinda bow to the wisdom of letting people, their states and their legislatures just kinda wake up on their own, in their own time, as seems to be happening lately. Probably be considerably less blow-back that way, plus it kind of fills me with warm fuzzy's watching all that money, time, and energy go into passing Prop 8 only to have a comparably insignificant amount of resources accomplish striking it. And by smacking down Prop 8 and only Prop 8, enough denial is left intact to allow for the possibility that I'll get to see huge amounts of money, time and energy go into passing Prop 9, 10, 11, and so on. Call me a dreamer, but wouldn't it be fabulous if gay marriage did to the religious right what Afghanistan did to the Soviet Union?

That's not how it works, dude.

[Oysters Rockefeller]

The fact that it is considered normal for people to suffer just because some ignorant types say so is a never ending source of confusion for me. But beyond that, I don't know why any marriage should be any government's business. Nobody should know better than me who I want to marry, it doesn't affect anybody else, and it's certainly not any sort of political move. So why get it muddled up with all this red tape and politics? It makes just as much sense for a government to legislate who you can date, or what your favorite fast food joint is.

I mean, I know the reasons people give. They're just...not good ones.

[Mesozoic Mister Nigel]

The fact that it is considered normal for people to suffer just because some ignorant types say so is a never ending source of confusion for me. But beyond that, I don't know why any marriage should be any government's business. Nobody should know better than me who I want to marry, it doesn't affect anybody else, and it's certainly not any sort of political move. So why get it muddled up with all this red tape and politics? It makes just as much sense for a government to legislate who you can date, or what your favorite fast food joint is.

I mean, I know the reasons people give. They're just...not good ones.

I agree completely!

[Telarus]

My position is that the state recognized Marriage as a specific type of Contract.




And attempting to prevent Gey/Lesbian/Transgender people from entering into a Contract (much like starting a business together) is totally illegal due to current anti-discrimination laws (which tightly bind the States/Fed in this area).