Proposition 8 contemplation

[pandora_parrot]

So... The supreme court of California decided that it is unconstitutional to have "separate but equal" definitions of unions for same-sex and different-sex couples. But now, marriage is only defined as between a man and a woman. So what's going to happen when this goes back to the supreme court?

Add your possibilities here, but here's a few I came up with:

The court decision said that California must either exit the business of sanctioning marriage, or it must grant same-sex couples the same rights as different-sex couples. Since the latter is no longer an option, will they have to do the former? Will California declare its marriage declaring powers null and void?

Perhaps they will say that the constitution of California is now self-contradictory. How will that be handled? Will they reject proposition 8 until another proposition is passed, this time to remove the equal protection clause in the constitution?

And what of the consequences of this election?

Will the Mormon church lose its tax exempt status because of how heavily it became involved in politics this year?

Will California decide to make out-of-state contributions to local causes illegal?

What will happen to all of the same-sex couples that have been married in the past few months?

This battle continues ever on. It will be very interesting to see what the next move is.

Comments

[chaoticset.livejournal.com]

I'm figuring that eventually it's going to result in the creation of a legal process that allows Loki and Bartleby back into heaven, therefore proving God wrong and unmaking the universe.

Well, maybe not. But it'll be tangled. >.>

[phantomdancer.livejournal.com]

LOL!

[winternova.livejournal.com]

Perhaps they will say that the constitution of California is now self-contradictory.

By definition, it cannot be.

Since it's in the Constitution that marriage is between one man and one woman, that's now the definition of marriage in California. It trumps the earlier decision by the California Supreme Court (the Constitution is the highest law in the State) and renders the previous marriages null and void.

The only hopes are to have the United States Supreme Court rule that the California Constitution contradicts the US Constitution (HIGHLY unlikely) or to repeal the Amendment to the California Constitution (like Prohibition was repealed in the US Constitution).

A State Constitution can grant MORE rights than are found in the US Constitution (for example, California's has an expressed Right to Privacy), but it cannot grant LESS rights. Since there's no right to marriage found in the US Constitution (either express or implied) - the question of Marriage is left to the states (10th Amendment) and the states can do what they wish.

There's only ONE court that can do ANYTHING about this now, and that's SCOTUS. All other avenues are shut down tight due to the fact it's a Constitutional Amendment.

Basically - California is SOL.

[maestrodog.livejournal.com]

I'm thinking in another 8-12 years there will be a measure to repeal this amendment.

[paradox-puree.livejournal.com]

Why not next year?

[winternova.livejournal.com]

Too soon to get a majority.

It's going to take time to get people comfortable with the idea. The reason Proposition 8 existed is because the proponents of same-sex marriage in California rushed their agenda. Instead of being patient and waiting until they had the majority behind them, they tried to force same-sex marriage on the majority, which lead to a predictable backlash - a constitutional amendment.

It's not that same-sex marriage is wrong - I firmly believe it is not. It's just that the TIMING was wrong in sanctioning the marriages.

[parmonster.livejournal.com]

Yeah Rosa, keep your ass in the back of the bus a little longer, would you?

Revolutions don't come about from playing nice and gently coaxing the opposition around to your POV.

Speaking of Ms. Parks, it's worth noting the amount of opposition which came from African-Americans, who in turn came out to the polls in record numbers to support Obama. I'm not saying that this invalidates how the majority of California voted, but isn't it interesting what the law of unintended consequences brings you?

[winternova.livejournal.com]

Yeah Rosa, keep your ass in the back of the bus a little longer, would you?

Revolutions don't come about from playing nice and gently coaxing the opposition around to your POV.

Civil Rights had 2 very highly placed vocal supporters in the Federal Government - John Kennedy and Lyndon Johnson.

Same-sex marriage does not have that, therefore different strategies need to be employed.

It's not a "revolution", its evolution of social consciousness - and one needs to approach the subject with tact and planning, not with the subtlety of Charles Manson's Helter Skelter theory.

[maradydd.livejournal.com]

Barack Obama opposed Prop 8, and Justice Anthony Kennedy favours the interpretation that sexual orientation is protected by the Constitution.

It's a start.

[parmonster.livejournal.com]

...and renders the previous marriages null and void.

Not true. It'll be a drawn out legal battle, but the way the California Family code is written there are only a handful of causes for nullity, and this does NOT qualify as one of them.

It's possible they will be voided eventually, but that will be by explicit court ruling not an implicit action of passing this constitutional amendment.

...the question of Marriage is left to the states (10th Amendment) and the states can do what they wish.

That's not...entirely accurate.

1. No state (or other political subdivision within the United States) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
2. The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.

Even if same-sex marriage WERE still legal in California, it wouldn't matter, because to the US Government, it's still not valid.

Of course, now that there are legal marriages in Mass and the few thousand that snuck through Cali, there may be firm constitutional grounds to have DOMA overturned (breech of article 4, full faith and trust), but that also needs a some action behind it.

[winternova.livejournal.com]

The issue of marriage is left to the states. DOMA simply removes marriage from consideration under the Full Faith and Credit clause.

There's no need for a drawn out legal battle - the California constitution now defines marriage as between one man and one woman, this therefore renders any state statute (such as the California Family Code) moot when it comes to same-sex marriage. The Constitution trumps ANY state law.

[maradydd.livejournal.com]

DOMA simply removes marriage from consideration under the Full Faith and Credit clause.

...and thus can be challenged on those grounds, perhaps with a little help from the Commerce Clause. Has anyone tried fighting DOMA all the way up to SCOTUS yet?

We need a Massachusetts couple who have just moved to California (or Arizona, or Florida, or any one of 26 other states who have passed anti-gay-marriage amendments) and are willing to make an example of themselves.

[vulpin openid (from livejournal.com)]

and renders the previous marriages null and void.

This isn't entirely clear due to the Federal Constitutional prohibition on ex post facto laws. I'm afraid that you're right, but hope that ex post facto amendments are treated the same as ex post facto laws.

[winternova.livejournal.com]

There's a prohibition on CONGRESS passing ex post facto laws - it does NOT apply to a Constitutional Amendment.

If it applied to a Constitution, then women born before 1920 still could not vote, slaves could've been legally owned if they were purchased before the 13th amendment was passed, etc.

[maradydd.livejournal.com]

A couple of quickies:

1) It could be argued that the CA Constitution now internally contradicts itself. I'm not sure, however, whether this would be resolved in state or federal court.

2) The best route for a SCOTUS challenge is probably through the Equal Protection Clause of the 14th amendment. Thus far, SCOTUS has been willing to extend "suspect class" status (i.e., status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny) (http://en.wikipedia.org/wiki/Equal_Protection_Clause#Suspect_classes) to racial minorities (leading to, among other decisions, Loving v. Virginia, which overturned miscegenation statutes in 16 states), but has not been willing to extend suspect class status to sexual orientations. Once Obama gets the opportunity to appoint some Supreme Court justices, that might change.

3) Another, slightly weirder way of going about might be, of all things, the Commerce Clause. Quite a few out-of-state gay couples traveled to California to get married. Can this be considered interstate commerce? If so, then Congress and/or SCOTUS can get involved.

4) Somewhat relating to (3), I want to see every gay couple whose marriage is annulled demanding their marriage license fees back, and taking the state to court if they're refused.

[winternova.livejournal.com]

Once Obama gets the opportunity to appoint some Supreme Court justices, that might change.


One of the reasons I voted for him.

I'd rather see a Democrat appoint SCOTUS Justices.

[terry-terrible.livejournal.com]

Once Obama gets the opportunity to appoint some Supreme Court justices, that might change.

I seriously doubt that Obama's going to nominate anyone who'd be willing to extend suspect class status to sexual orientation. Granted, anything can happen once someone is confirmed (Earl Warren was a republican appointed by a republican), but it's pretty damn unlikely. Even then they'll run up against Alito and Scalia. I'm not sure how Kennedy has voted on gay rights.

[maradydd.livejournal.com]

Kennedy wrote the Court's opinion in Lawrence v. Texas. That should say it all.

[winternova.livejournal.com]

You misunderstood what I was saying - I wasn't saying that statutes can't contradict themselves, I'm saying that the Constitution can't - you cannot have an "unconstitutional" Amendment because, by definition, what's in the Constitution is "constitutional" (assuming we're only looking internally and NOT State v. Federal).

The State Constitution does not contradict itself - there is one solitary definition of the word "marriage" in the document now. That definition does not contradict anything else.

If a statute contradicts the Constitution, then that statute is now unconstitutional. If there's a court decision that contradicts the Constitution, that court decision is now no longer good law. Statutes may accidentally contradict each other, if they do then it's up to the courts to decide (in most cases the newer law supercedes the prior).

The State Constitution is the highest law in California, and it now states that marriage can ONLY be one man and one woman. I don't like it - I don't agree with it on an opinion level - but it is reality...and it will take a further amendment to the State Constitution to remove it.

[phantomdancer.livejournal.com]

The purpose of the Supreme Court of either the State or indeed the United States is to interpret the constitution. Therefore, the Supreme Court cannot throw out a constitutional amendment as being unconstitutional, because it is part of the constitution. The US Supreme Court can toss it out, but I doubt they will due to the reasons stated above. There is no express right to marriage, for anyone, in the US Constitution and as such is left to states rights.

I agree with Maestro that in a few years a counter amendment will be floated and likely passed. It's too soon to think that it would happen next year as to get an amendment on the ballot, you need 500k-600k signatures supporting it, and that just takes too much time and money. The organizations supporting and fighting against it will need time to raise money and get their ducks in a row before fighting this fight again.

I also agree with Winternova in that the same sex camp definately rushed things in trying to force through their agenda. Not only the right wingers were pissed, but the libertarians also as they tend to be opposed to laws being created by Judicial ruling. If they had waited as little as a year or two, the resulting prop 8 would have not passed.

[ca-katarina.livejournal.com]

If they had waited as little as a year or two, the resulting prop 8 would have not passed.

Among other things, it would not have been a presidential election; those who came out to vote for/against Obama/Macain would not have been in the mix, so yes, much less likely a Prop 8-like initiative would have passed.

It also would have been useful if there had been a couple of less "teachable moments" and elementary school teachers pushing sexual orientation tolerance over the last few months... makes me wonder if they were actually working for "the other side."

I opposed Prop 8, support a wider definition of civil marriage as a civil contract, and ALSO think that parents should have more say about what their kids are taught in elementary school. The confusion of the issues is what gave Prop 8 its victory.

Perhaps an initiative regarding parental rights running at the same time as one overturning Prop 8 would be a wise move...

[paradox-puree.livejournal.com]

You do know that the "teachable moment" the pro-h8 people have been talking about was fully sanctioned by the parents, right?

For the record....

[gtonizuka.livejournal.com]

...the American-African churches of the US tend to be as conservative/bigoted/in blatant motherfucking denial as most American-European churches; I can hope that some rally to get rid of these laws, but I'll have to wait to see the results(probably why I fled from them when I got the chance).

[sunlightlotus.livejournal.com]

Oh so many questions! I would love it if somehow Californian marriages somehow became null and void for everyone or something... hehehe