Prop. 8 Unconstitutional!

[3113]

One more nail in that evil law's coffin! Will it go on to the Supreme Court?

A federal appeals court on Tuesday declared California's same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for likely consideration by the U.S. Supreme Court.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians.

 

[Safe_Bet]

One more nail in that evil law's coffin! Will it go on to the Supreme Court?

I'll give a reserved "YAY". My louder, more enthusiastic one is still under appeal!

 

[JAMESBJOHNSON]

SCOTUS will likely rule that states can decide for themselves. HOORAY

 

[Safe_Bet]

BTW, it should come as no great surprise that the dissenting vote came from a Bush appointee who attended Brigham Young University **cough*freakin Mormon!*cough**

 

[voluptuary_manque]

Not being a legal beagle or even a legal bear my interpretation should be taken with a large carton of salt. That being said, while Judge Walker painted his decision with a broad brush and said that any law against gay marriage was unconstitutional, Judge Reinhardt aimed his decision very narrowly. Only California would be affected by this decision.

Why is this important? Because it gives SCOTUS a way out. They don't have to review the decision. Many an appeal to the High Court is shined on with the lower court's ruling left in place for whoever it applies to. If the Nine don't feel like ruling for gay marriage nation wide and decide to let each state make its decision piecemeal, they can. And they very well may. If Judge Reinhardt's decision is left standing, gay marriages will resume in California but it will not be mandatory for the rest of the states in the Ninth Circuit to allow them. This may be considered a defeat by those of us who think that who sleeps with and marries whom is none of the government's business but it is a very safe position for those states that have decided to allow same sex marriage while not being a threat to those states that don't.

Such a politically slick decision is not Judge Reinhardt's normal style. The man tends to be quite ideological and that's one reason he gets slapped down so often by SCOTUS. My guess is that in this case he is trying very hard to hold to his principals while not forcing the Supreme Court to intervene. As such, it is a really well played gambit.

 

[Anjasa]

I really, really hope this gets struck down.

I'd feel a lot better if gay marriage was legalized and then it just never came up against as a political platform.

 

[3113]

I really, really hope this gets struck down.

I'd feel a lot better if gay marriage was legalized and then it just never came up against as a political platform.

Well, it has been "struck down." The question is whether it will go to the Supreme Court. If it does, that doesn't legalize gay marriage anywhere but in California according to what this particular court decided. It decided that *this* law was unconstitutional. It didn't say that *any* law against gay marriage was unconstitutional. That's a fine point there, but, once again, it only gets gay marriage legal again in California.

However, these court battles have, in their way, been a good thing (obviously, nothing about this bigotry and making gays second-class citizens has been a good thing, but looking at it from a different angle). It shows that such laws aren't so easy to uphold in court. So passing them doesn't make for a "win" to the other side. Just a delay.

Which is why those on "our" side aren't waiting for it to go to the Supreme Court. They're gathering signatures to try and get on the ballot a measure asking voters to nullify Prop. 8. Why? Because from court case to court case, no one can marry so long as this is in the courts, and also, why press your luck? Besides, voting out the law gets rid of the one thin argument the other side keeps shouting, that "voters wanted it!" This would say, "voters no longer want it. End of argument."

 

[Anjasa]

I got into a discussion about this with one of my friends last night and was shocked that he was in the 'this isn't democracy!' camp. Shocked me that he said this in front of our openly gay friend even more.

I don't believe discrimination should be put up for a vote, honestly. I feel bad for the people in the middle - people who just want to marry and live their lives in peace with all the comforts and securities that straight marriages are afforded.

 

[quimsical]

I don't believe discrimination should be put up for a vote, honestly.

In essence, this.

State Propositions are not the right approach to rights issues. I attribute this to something I dub "the lemming" rule -- that uncaptained people become the mob, and the mob don't give you a fair hearing. But that's just me.

 

[TE999]

If Prop 8 does go to the Supremes, it will be deemed a violation of a person's civil rights and struck down, much as Poll Taxes were. This is not a Democracy, or what can be interpreted as legalized mob rule, but a Constitutional Republic where the rights of the few are granted equal weight to those of the many. The legal system doesn't always work immediately in the few's favor, but it does eventually. As the old saying goes "The mills of Justice may grind slowly, but they grind exceedingly fine."

 

[Safe_Bet]

If Prop 8 does go to the Supremes, it will be deemed a violation of a person's civil rights and struck down, much as Poll Taxes were. This is not a Democracy, or what can be interpreted as legalized mob rule, but a Constitutional Republic where the rights of the few are granted equal weight to those of the many. The legal system doesn't always work immediately in the few's favor, but it does eventually. As the old saying goes "The mills of Justice may grind slowly, but they grind exceedingly fine."

EXACTLY!

Equal Constitutional rights are granted to every adult citizen of this country. To try to take that equality away via popular vote or referendum is unconstitutional. Period.

If the Supremes over turn this decision they would undermine their OWN constitutional authority - which they ain't gonna do!

So I'm thinking that if the majority of the Supremes are in favor of gay marriage they will hear this case. If they are not, they will pass on hearing so as to protect their own asses.

 

[voluptuary_manque]

If they are not, they will pass on hearing so as to protect their own asses.

At least until the national polls show a majority favoring same sex marriage. And that will happen. Just look at the national opinion surveys as they've changed over the last ten years. Time is on our side!

 

[JAMESBJOHNSON]

As I recall it the Equal Rights Amendment never was ratified by the States.

The 9th Circuits opinion applies to every State in its district, and there are lotsa western States.

So far SCOTUS has kept its nose outta most cases involving marriage, except for the case involving racial prohibitions; but Gays can marry straights so the case doesnt apply.

I'm not betting my money that SCOTUS opens the door for polygamy or whatever else people can imagine. So there are 2 ways for Gays to lose in California: SCOTUS can leave marriage up to the State (Prop 8) or outlaw same-sex everywhere. I'm betting SCOTUS punts.

 

[Cruel2BKind]

We wont win until The federal government recognizes gay marriage. Even in the states where gays and lesbians can marry, their marriage is not recognized outside of certain states, and they don't have any of the rights that come with a heterosexual marriage, such as filing taxes together, or making one partner a US citizen.

 

[3113]

I don't believe discrimination should be put up for a vote, honestly.

I attribute this to something I dub "the lemming" rule -- that uncaptained people become the mob, and the mob don't give you a fair hearing. But that's just me.

All true, but voters can pass any law they want. It is, however, those who want the law upheld who must prove that taking away the rights of a certain group of people is necessary because letting them have that right will cause harm.

Which, as I said, is perhaps the only positive of this going to the courts. It shows, time and again, that the anti-gay side has got nothing--zip, zilch, nada! They cannot prove that gay marriage would or could cause anybody any harm. And so such laws are being found unconstitutional--null and void.

I have to say, however, that it still gripes me that the court bothered to hear this case at all when the State of California wasn't willing to fight for it. I'm pissed that they let the creators of the law appeal it. If the don't represent the state, then they shouldn't be allowed to argue it in court. Had they not allowed it, that would have been the end of Prop. 8. Now it could go up to the Supreme Court--if they agree to hear it. And so it drags on.

 

[Boxlicker101]

As I recall it the Equal Rights Amendment never was ratified by the States.

The 9th Circuits opinion applies to every State in its district, and there are lotsa western States.

So far SCOTUS has kept its nose outta most cases involving marriage, except for the case involving racial prohibitions; but Gays can marry straights so the case doesnt apply.

I'm not betting my money that SCOTUS opens the door for polygamy or whatever else people can imagine. So there are 2 ways for Gays to lose in California: SCOTUS can leave marriage up to the State (Prop 8) or outlaw same-sex everywhere. I'm betting SCOTUS punts.

The Equal Rights Amendment (ERA) was never ratified by enough states, and thereby failed. That proposal related just to different laws for men and women, and enough state legislatures decided there were too many unforeseen and undesirable consequences to do something as drastic as amending the US Constitution.

The Equal Rights Amendment being cited here was, I believe, the 14th, and it was passed about 150 years ago.

 

[sr71plt]

The Equal Rights Amendment (ERA) was never ratified by enough states, and thereby failed.

It hasn't failed. That's not how constitutional amendment procedures work. If/when the last of three more states ratifies it, it will go into effect. It just sits there until enough states ratify it.

 

[JAMESBJOHNSON]

The court heard the case cuz State officials refused to do their duty of defending the State constitution.

 

[Stella_Omega]

The court heard the case cuz State officials refused to do their duty of defending the State constitution.

I think Brown and Ah-nold could have done an impeccable job of crafting a decisively losing defense in the first trial, yeah.

This charade of hate could have been over and done with, with no hope of appeals for the anti-rights groups.

 

[Boxlicker101]

Quote:
Originally Posted by Boxlicker101
The Equal Rights Amendment (ERA) was never ratified by enough states, and thereby failed.

It hasn't failed. That's not how constitutional amendment procedures work. If/when the last of three more states ratifies it, it will go into effect. It just sits there until enough states ratify it.

That's not so, at least not in this case. There was a deadline for the 38 states to ratify it, and the deadline passed. It was extended for a longer period, by majority vote in Congress, which probably wouldn't have passed Constitutional muster, and still did not meet the deadline. In fact, some of the states that ratified it voted to rescind their ratification.

Personally, I think it's a dead issue, because it has been about thirty years since the last deadline passed.

 

[Stella_Omega]

Personally, I think it's a dead issue, because it has been about thirty years since the last deadline passed.

With the surge in rightwing anti-women legislation, that issue is about to be reanimated.

 

[Boxlicker101]

With the surge in rightwing anti-women legislation, that issue is about to be reanimated.

There is a movement afoot to do so, but I believe it would require starting over, with the supermajority vote in Congress, followed by ratification by 38 states.

The alternative might be to amend the proposed amendment to eliminate the deadline, but this would still require a supermajority. Not to mention that five states have effectively rescinded their ratification.

Amending the Constitution is not supposed to be simple or easy.

 

[voluptuary_manque]

And given how far women have come since the Amendment was first proposed, some will make the argument that it is unnecessary. It would be very difficult to pass due less to antagonism than to indifference. But if it does come up again, I'm sure the drafters will write it much more carefully than did the last group. The ERA had too many attack-able holes in it. This, I believe, was the reason that five states rescinded their approval. Difficult, very difficult.

 

[Boxlicker101]

And given how far women have come since the Amendment was first proposed, some will make the argument that it is unnecessary. It would be very difficult to pass due less to antagonism than to indifference. But if it does come up again, I'm sure the drafters will write it much more carefully than did the last group. The ERA had too many attack-able holes in it. This, I believe, was the reason that five states rescinded their approval. Difficult, very difficult.

I have always favored gender equality in all things, and my stories and posts on this forum reflect that. However, there could be unforeseen problems with the ERA. If the draft were reinstated, it would apply to women as well as men. And, it would mean the Civil Rights Act of 1964 would be enforced to the letter of the law rather than the spirit.

 

[JAMESBJOHNSON]

Societies that wanna stick around dont expose females to combat. Combat is a quick trip to extinction.

Lets say BOX is chief of a tribe, and lets say that a pride of lions attack his tribe. Our BOX is no dummy, and hauls ass for the hills with the others. But females and kids cant outrun lions, and several get eaten. If the lions get the idea that BOXs tribe is fast food, theyll stop by often.