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California Circumventing Democracy

Prepare to be chilled to the core. And be afraid. Be very afraid.

The Los Angeles Times reports that Democratic legislators are asking the state Supreme Court to void Prop. 8, regardless (or because) of the fact that it won a majority vote among California's citizens.

Forty-three Democratic legislators, including leaders of the California Senate and Assembly, filed a brief Monday urging the California Supreme Court to void Proposition 8.

Assembly Speaker Karen Bass, Senate President Pro Tem Don Perata and incoming President Pro Tem Darrell Steinberg signed the friend of the court brief, filed with the state Supreme Court.

No Republican legislator signed the petition, though Gov. Arnold Schwarzenegger, a Republican, denounced the anti-gay marriage measure over the weekend.

With almost 11 million ballots tallied, Proposition 8 had 52.3% of the vote to 47.7%. Although many ballots remain to be counted, the 500,000-vote spread is viewed as insurmountable.

"The citizens of California rely on the Legislature and the courts to safeguard against unlawful discrimination by temporary, and often short-lived, majorities," the legislators said in the document, written by attorneys at the firm Gibson, Dunn & Crutcher.

The measure won with 52.3% of the popular vote, nearly the same percentage of votes won by Barack Obama in the presidential election.

Two questions:

  1. Should Congressional Republicans hire Gibson, Dunn & Crutcher to write a petition to the Supreme Court to "safeguard" against "temporary, and often short-lived, majorities" and usurp the presidential election?

  2. Are legislators - who write California's laws - incapable of writing their own petition?

This is patently absurd and should amount to a Constitutional crisis in California if successful.

Check that. It would be absurd if usurping the vote through the courts was patently implausible. Instead, it is nothing short of alarming.

It's affects will reach beyond California. You know how the US Supreme Court loves precedent, even European precedent, when "interpreting" the US Constitution.

Americans should care not a wit what the vote was about - gay marriage or the election of a local dog catcher. Democracy is being circumvented.

California voters are under siege by a legislative majority and judicial oligarchy, and a majority state-wide vote can be discarded on the grounds that it is deemed by the oligarchy as merely "temporary." Can we, too, in turn deem Democrats in the legislature a "temporary majority"?

These are stories you expect to read about in the former Soviet Union, not in America. Not even in the Peoples Republic of California.

Be afraid. Be very afraid.


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Comments (48)

Pro- and anti- gay marriage... (Below threshold)
James H:

Pro- and anti- gay marriage stances aside, I'm definitely not comfortable with Prop 8's effect. I believe governments, particularly American governments, are far more stable when supermajorities are required to amend constitutions and similar foundational documents.

So change the law in... (Below threshold)
Steve Schippert:

So change the law in California requiring such a super majority.

Do NOT circumvent such a law by discarding the results legally arrived at.

We are a nation of laws. We write enough of them, we need not go circumventing a popular vote if the law recognizes said vote.

Period.

This is very simple asked a... (Below threshold)
hcddbz:

This is very simple asked and answered. If you do not like the result raise money and ask the question again next year.

You had to see this one com... (Below threshold)
MPR:

You had to see this one coming. When liberals can't get enough people to agree with them on an issue they run to the courts. Once there, liberal judges will use anything as a precedent to rule the way they think it "should be" not what the law says. Obama's statements concerning the Constitution and judges should make one very afraid.

Steve:There is som... (Below threshold)
James H:

Steve:

There is some question as to whether the proposition is a "constitutional revision" or a "constitutional amendment." One of these, apparently, cannot be enacted through direct
initiative. Damned if I know which. Direct initiative makes California a legal basketcase anyway ...


Well, if Californians don't... (Below threshold)
bobdog:

Well, if Californians don't like it, they can just vote these guys out of office -- two years from now. Trouble is, there will be some new outrage occupying everybody's attention by then.

Best time to do this kind of thing is right after the election. Nobody remembers squat.

The libs win again. Guilty as hell, free as a bird.

The point is not about whet... (Below threshold)
Steve Schippert:

The point is not about whether this is an "amendment" or a "change" or an "alteration" at the local tailor's.

It's about the fact that the vote was carried out legally, the results are in, and the courts are being utilized to once again tell Californians to bugger off.

Why bother with a vote?

The process is what is important.

As is the false claim that ""The citizens of California rely on the Legislature and the courts to safeguard against unlawful discrimination by temporary, and often short-lived, majorities."

Think about that assertion long and hard. Majorities need to be protected against.

Think.

Long and hard.

The courts have been corrup... (Below threshold)
Jeff Blogworthy:

The courts have been corrupt for some time now. I had hoped that people could see the handwriting on the wall. With the election of Obama, "the long slow march through the institutions" is complete. I AM afraid.

As is the false c... (Below threshold)
hcddbz:
As is the false claim that ""The citizens of California rely on the Legislature and the courts to safeguard against unlawful discrimination by temporary, and often short-lived, majorities

Yes we must allow Tyranny of the minority when Liberal loose.
We must listen to The Will of the People when Liberals win.
Dissent good when Liberals Loose
Dissent bad when Liberals win.
5% is Landside and mandate for change when liberals win
5% is insignificant and the voters are misguided when they loose.
Got it ?
Good.
Consistency the bane of the Left.

Steve:"Alteration"... (Below threshold)
James H:

Steve:

"Alteration" or "amendment" is precisely what this case will turn on when it gets to the courts. One of these must go through the state legislature before a statewide vote, and the other faces no such requirement. I respectfully disagree with your dismissal of this issue.

"temporary, and often short... (Below threshold)
Mike:

"temporary, and often short-lived, majorities"

Bull puckey.

Nationally, petitions to define marriage solely between men and women have passed with an average "yes" vote of nearly 70%

California also passed a similar question in 2000, with a 61% "yes" vote.

The will of the people on this issue is clear, unless you wish to discard reality and move into the fantasy land occupied by militant gay rights activists.

Nebraska voted to ban gay m... (Below threshold)
fg:

Nebraska voted to ban gay marriage by 70% and a Clinton appointed judge struck it down in 2005.

"Seventy percent of Nebraskans voted for the amendment to define marriage as a union between one man and one woman, and I believe that the citizens of this state have a right to structure their constitution as they see fit,"

My grandson is the only one... (Below threshold)
tyree:

My grandson is the only one in his kindergarten class who is not an ESL student. Californians are used to minorities forcing their will on the majority. We don't like it, but there are not enough of us left to vote against it.

I live in California.... (Below threshold)

I live in California.

California's "Civil Union" laws provide 100% of the rights of a marriage...100%. The ONLY thing missing is calling them a "Marriage". Why is this important to the Gay community? Frankly, to many it is NOT.

The issue that is truly in play out here is this: control of religion. IF this amendment had failed...or IF they can get it thrown out through the courst...THEN the full assault on religion in this State will start.

They tipped their hands early and often out here...and THAT as much as anything tipped the results against them. One advocate out here flat out stated that preaching passages from the bible that speak of marriage as between a man and a woman, or speak AGAINST homosexuality, FROM THE PULPIT would lead to a church being stripped of its tax-exampt status.

And then, there're the schools....

1) Tyree: Wouldn't that mak... (Below threshold)
BPG:

1) Tyree: Wouldn't that make you a minority now? And therefore able to address the issue in the fine California tradition?

2) Massachusetts, with the recent Question 1 regarding eliminating the state income tax, had rumors floating around that the legislature would simply refuse to cut the tax if Question 1 passed (it didn't). It would not be a stretch for California to something similar.

What's the point of having ballot questions, then?

The Democrats are incredibl... (Below threshold)

The Democrats are incredible. They can't help but go to far too fast. This will backfire and explode. No way, at this time, is the country ready for that.

Well played libs. Keep it coming.

Do NOT circumvent such a... (Below threshold)
Brian:

Do NOT circumvent such a law by discarding the results legally arrived at.

So it's circumventing a law to follow a legally prescribed mechanism for challenging laws?

Oh, I get it. You only like the challenge and appeal process once it ends where you want it, and not when someone takes it further.

How about this one? A voter-passed law that the Bush administration said it wouldn't honor. Did you also think that was "a story you expect to read about in the former Soviet Union, not in America"? Of course, finally a judge stepped in and told them to knock it off. Oh, but was it OK to take that case to a judge then?

What's most disturbing is t... (Below threshold)
Mac Lorry:

What's most disturbing is that when people who oppose the gay agenda work within the legal system and succeed in passing a ballot initiative that amends the constitution to define marriage, the system bends over backwards to overturn their success by whatever legal invention is necessary. What this tells the people is that the government is corrupt and deserves no good will from the people.

Other than that, it up to the people who pushed for Prop 8 to take the streets and demonstrate they won't stand for such corruption. If they don't feel strongly about government playing by the rules then it won't.

Are there any patriots in C... (Below threshold)
OLDPUPPYMAX:

Are there any patriots in California? Several hundred thousand should make themselves known by removing these arrogant thugs from office--permanently and by force. Not murder, just removal. Perhaps the left would get the message. But unfortunately, the fat, dumb, happy folk will just turn over and go back to sleep.

There is some ques... (Below threshold)
Wm Tanksley:
There is some question as to whether the proposition is a "constitutional revision" or a "constitutional amendment."

Well... That's been suggested as an avenue of appeal, yes, but there's no reason to support it. Frankly, it's just about as silly as you can possibly get. Prop 8 adds one sentence to the Constitution, a sentence which was accepted law uniformly until a few months ago. A revision is a wholesale change -- as if, for example, one were to decide to adopt the Massachusetts Constitution instead of our current one.

If you accept that prop 8 amounts to a "revision", then it's not clear how any proposition could possibly NOT amount to a revision. It's also very baffling how the CA Supreme Court was able to perform its decision, since if the affirmative of prop 8 is a revision, how can the denial of prop 8 NOT be a revision?

Oh, I get it. You ... (Below threshold)
Wm Tanksley:
Oh, I get it. You only like the challenge and appeal process once it ends where you want it, and not when someone takes it further. How about this one [Oregon's assisted suicide law]? A voter-passed law that the Bush administration said it wouldn't honor.

They didn't say they wouldn't honor it -- they said it contradicted federal law, and the federal law overruled it. This isn't the case for prop 8, even if the court's accepted that it's the case for the old prop 22.

I understand the need to pr... (Below threshold)
Leigh Thelmadatter:

I understand the need to protect the will of the majority, but the problem is that majorities can and have voted to deny rights to minorities (racial, political, religious you name it). The courts have always been a antidote to that. Has it been abused? absolutely

However, getting a court to overturn a law voted by the majority is not necessarily tyranny. You have to prove that said law violates the supreme law of the land, the constitution. I think there is an argument for this.

Those who have a problem with legal recognition of gay unions always have them from a religious point of view. For most of them, the problem comes from calling it a "marriage" There is a solution for those who really want a solution. Separate religious "marriage" from legal "civil unions". We do that by requiring all couples, gay or straight to have civil unions to have legal rights and leave the religious aspect of it outside the realm of the law. A number of countries do this such as Mexico and France. In this way, there is no discrimination argument and religious institutions who are against gay unions can continue to be so and deny such within their institutions. As long as priests, ministers etc, are registered as agents of the state to perform legal marriages, they are left open to the idea that as agents of the State they cannot discriminate.

If the push is Proposition 8 style, you will lose and maybe lose more than just having your definition of marriage be the only one. You may wind up being sued for not marrying gays...Then you will really need the courts.

How about this one... (Below threshold)
Mac Lorry:
How about this one? A voter-passed law that the Bush administration said it wouldn't honor.

Not the same thing Brian. The voters passed a state law, but it doesn't override federal law that governs the prescribing of all drugs. We have seen some local communities pass laws punishing landlords who rent to illegal immigrants only to have them overturned on the basis that federal law takes precedence. I expect you agree with such rulings.

There is no federal law defining marriage, so states can define it as they wish. However, in doing so they have to follow their own rules. It seems gay activists have been successful in tilting the rules in their favor. If Prop 8 is overturned by some never before seen legal invention it will demonstrate to voters that their government is corrupt. When the ballot no longer works people find other means to bring about change.

If the push is Pro... (Below threshold)
Mac Lorry:
If the push is Proposition 8 style, you will lose and maybe lose more than just having your definition of marriage be the only one.

It all depends on how comfortable the typical Californian is with having a corrupt government that doesn't abide by the will of the people.

You may wind up being sued for not marrying gays...Then you will really need the courts.

Allowing religious leaders to be sued for not marrying gays is unlikely to happen as it violates the separation of church and state. If somehow such religious persecution became the law, then you would see such a backlash that gays would be heading back into their closets. The average person tolerates gay marriage even if they don't agree with it because it's just not important to them. Cross over that line and make it important to them to oppose gays and all the gains will be lost.

They didn't say they wou... (Below threshold)
Brian:

They didn't say they wouldn't honor it -- they said it contradicted federal law, and the federal law overruled it.

That was their legal cover, but a judge called them on it and ruled that they were misapplying and twisting the intent of the Controlled Substances Act as a mechanism for overruling the Oregon law.

Regardless, the point is that there are mechanisms built into our system for challenging laws, and you can't be in favor of process when it suits you and call it Soviet-era when it doesn't.

Folks - we need to remember... (Below threshold)
The Other JD:

Folks - we need to remember how things work in CA with the initiative process.

Whenever an initiative passes that is the least bit "conservative" in scope, it is instantly challenged in the courts as some sort of grievous restriction of civil rights, and is portrayed in the media as a "last gasp" of the eeeeevil white power structure to maintain its hold on the noble (fill in the blank) minority that is so much more important to daily life in the Golden State.

It happened with 187. It happened with 209. And so it will happen with 8.

The bottom line - there is no restriction on rights within this proposition. Everything was merely replaced and reset to the way it always has been, in this state, in this nation, in modern western civilization.

All people have the right to enter into marriage, but in CA (at least for now) to be legally recognized it must be marriage to one person, and of the opposite gender.

No one is telling the LGBTQIXRTHEC community that they don't have the right to get married, nor does this proposition speak to that point.

All it says is that their "marriage" such as they wish to construct it will not be recognized in this state.

This evidently is now being compared in some circles to Jim Crow.

What those folks fail to remember is that Jim Crow ultimately was defeated by the people through their representatives by enactment of the Civil Rights Act of 1964.

This has yet to happen, on any level, for gay marriage advocates except for at one level - the courts. This will not provide the long-term solution that they seek.

Gay marriage will never be generally accepted until there is an actual, affirmative vote in its favor, either by the people or by their elected representatives.

Until that time, vox populi, vox Dei.

Thelmadatter ... (Below threshold)
hcddbz:

Thelmadatter

Courts are often times the problem. It was the Supreme Court that made segregation the law of the land in opposition to the US Constitution.
It was the Supreme Court that held that Japanese Americans could be held during WWII without due process.
So the whole judicial process being against racism is two edged sword. We elect people to make and enforce laws there supposed to be our representatives.
This is why we are a republic.
In a direct democracy the people vote on everything.
The California legislature often passes the buck to the people on tough decisions so they can be blameless.
Instead they pass it on to the courts.
Well now they need to live with the results.
Or they should be fired for being the lazy bumbs.

Not the same thing Brian... (Below threshold)
Brian:

Not the same thing Brian. The voters passed a state law, but it doesn't override federal law that governs the prescribing of all drugs.

No, it doesn't override it. In fact, it had nothing to do with it. But that didn't stop the administration from trying to twist the law to invoke "some never before seen legal invention" (as the judge essentially ruled).

Anyway, another way to say "some never before seen legal invention" is "a new legal argument" or "a new decision by an appeals court". And unless you're going to claim that everything that can be argued has already been argued, or that everything that can be ruled on has already been ruled on, then it's a pointless characterization. People come up with new legal arguments all the time. That's why we have a legal system to interpret those arguments. That makes the system American. When America-haters start calling it "Soviet", be afraid. Be very afraid.

Re:If you... (Below threshold)
James H:

Re:

If you accept that prop 8 amounts to a "revision", then it's not clear how any proposition could possibly NOT amount to a revision. It's also very baffling how the CA Supreme Court was able to perform its decision, since if the affirmative of prop 8 is a revision, how can the denial of prop 8 NOT be a revision?

Tanksley: At this point, I really don't know whether it's a revision or an amendment. I don't know anything about California law, so I can't speak to it. As for the judicial decision, it was an "interpretation," rather than a "revision" or amendment. Make of that what you will.

My opinion of this whole affair tends to be rather unpopular around certain parts. I firmly support same-sex marriage, but I think activists have gone about attaining it the wrong way. They should have attempted a strategy that involved legislative, rather than judicial action on the "marriage" question, while taking a judicial tack only on the benefits of marriage, rather than marriage itself.

But then again, that's just me.

Brian,No,... (Below threshold)
Mac Lorry:

Brian,

No, it doesn't override it. In fact, it had nothing to do with it. But that didn't stop the administration from trying to twist the law to invoke "some never before seen legal invention" (as the judge essentially ruled).

Well you're right. Lets get rid of Ashcroft. Nice to see you agree with my point that legal inventions shouldn't be used to circumvent laws passed by state referendum.

And unless you're going to claim that everything that can be argued has already been argued, or that everything that can be ruled on has already been ruled on, then it's a pointless characterization. People come up with new legal arguments all the time. That's why we have a legal system to interpret those arguments. That makes the system American.

No one can ever claim that all arguments have been made in a case, and thus, to require such a claim be made in order to settle an issue means that no issue can ever be settled. Obviously, that's not how our legal system works or there would be no such thing as settled law.

There's a legal principle that can be applied in this case. That, is "did the voters intend to override the state supreme court's decision allowing gay marriage?" Given the campaigns on both sides of the issue and the wording of Prop 8, I believe it's clearly yes, that was the intent. If so, the principle says the court must consider the case in the most favorable light for passage of Prop 8.

It also stinks of corruption if the same court that ruled to allowing gay marriage overturns a constitutional amendment that overrules that court's prior ruling. The proper avenue for resolving this is for the proponents of gay rights to go back to the ballot box.

There is actually a somewha... (Below threshold)
Tim:

There is actually a somewhat legitimate question, specific to CA, whether or not the ballot question amounted to an amendment to their state constitution (that's how it was presented, and that's what it passed as) or a revision, which much clear a much larger hurdle. The difference is specifically to prevent such "tryanny of the majority" issues that they're talking about.

The yardsticks to measure suitability of the proposition for one option or the other are fuzzy, and this obviously should have been well established BEFORE voting on the proposition. It seems to me like they kept this option in reserve in case the people voted the "wrong" way.

The key contention in this case consists of several groups of people holding very different definitions for some words, and of what certain rights entail. The language used by each side literally makes them right in their own minds by definition.

And - both sides wanted the government in on the marriage business. Have fun sorting all this out.

The fact that seems to be c... (Below threshold)
Theo N:

The fact that seems to be conveniently overlooked is that this is a Republic and not a democracy where the majority can alter or eliminate the rights of any minority by popular vote. The founding fathers intended to protect the rights of minorities from majority rule. If you don't understand that concept, the take a few moments to read The Federalist Papers. If you truly believe it's alright for the majority rule process to be applied to individual rights, then lets have a vote on whether blacks should be allowed to vote. I'm sure there are several states that would ban black voting if it were left to popular opinion.

Nice to see you agree wi... (Below threshold)
Brian:

Nice to see you agree with my point that legal inventions shouldn't be used to circumvent laws passed by state referendum.

I said nothing of the sort. Ashcroft made the claim, as he was allowed. And he was smacked down by a judge. That's the process. I'm all for it.

That, is "did the voters intend to override the state supreme court's decision allowing gay marriage?" Given the campaigns on both sides of the issue and the wording of Prop 8, I believe it's clearly yes, that was the intent.

Of course it was. But voters don't always get to override judges by a majority vote. Laws are overturned for many reasons, including technical problems and unconstitutionality. That applies whether they are created by the legislature, ballot measure, or judicial ruling.

It also stinks of corruption if the same court that ruled to allowing gay marriage overturns a constitutional amendment that overrules that court's prior ruling.

What a bizarre statement. It's consistency, not corruption. If state voters pass a law banning abortion, is it corruption for the SCOTUS to strike it down because it seeks to overturn their previous ruling?

The fact that seem... (Below threshold)
Mac Lorry:
The fact that seems to be conveniently overlooked is that this is a Republic and not a democracy where the majority can alter or eliminate the rights of any minority by popular vote.

Except is states that allow their constitution to be amended by popular vote, which is the law in many states. In states that also allow grassroots ballot initiatives, like California, anyone who can meet the requirements can put the proposed amendment on the ballot.

The founding fathers intended to protect the rights of minorities from majority rule.

But only to a point. They also allowed the constitution to be amended by several processes, all of which require a majority of some sort.

If you don't understand that concept, the take a few moments to read The Federalist Papers.

I recommend you read the California constitution, as that's the one we are talking about.

If you truly believe it's alright for the majority rule process to be applied to individual rights, then lets have a vote on whether blacks should be allowed to vote. I'm sure there are several states that would ban black voting if it were left to popular opinion.

Voting rights are a federal issue, and if you can muster enough support the majority can amend the U.S. constitution to deny voting rights to white male property owners. The document that talks about inalienable rights endowed by the Creator is the Declaration of Independents, but it has no legal standing under U.S. law.

If you can sustain a two thirds majority, over time they can change any or all of the provisions in the constitution. And it matters not that we are a Republic as then can elect representative who will fulfill their whishes. What's scary is when courts find previously unknown constitutional rights and impose them outside the political process. All it takes is just five people to invent a right that allows mothers to kill their children, as an example.

Of course it was. ... (Below threshold)
Mac Lorry:
Of course it was. But voters don't always get to override judges by a majority vote. Laws are overturned for many reasons, including technical problems and unconstitutionality. That applies whether they are created by the legislature, ballot measure, or judicial ruling.

It's one thing to override laws enacted by a group of layers based on constitutional issues, but it's another thing to claim an amendment to the constitution is unconstitutional. What's at issue is the credibility of the ballot intuitive process in passing constitutional amendments. If obscure on never before seen legal inventions are used to thwart the will of the people when they follow the prescribe legal process for amending their state constitution, then why should they believe the system works? Even if they made some change to pass this hurtle they may believe it will just be overturned by some new legal inventions.

What a bizarre statement. It's consistency, not corruption. If state voters pass a law banning abortion, is it corruption for the SCOTUS to strike it down because it seeks to overturn their previous ruling?

Your analogy is incorrect because the federal law overrides the state. If the U.S. constitution was amended banning abortion it would be corrupt for the SCOTUS to then strike it down based on some never before seen legal invention. Governments stay in power by either the consent of the people or by force. Once a government demonstrates it's corrupt beyond where it can be changed within the law then it must increasingly rule by force. This is not a good road to go down.

but it's another thing t... (Below threshold)
Brian:

but it's another thing to claim an amendment to the constitution is unconstitutional.

Is it not possible for an amendment to the constitution to be unconstitutional?

If obscure on never before seen legal inventions are used to thwart the will of the people when they follow the prescribe legal process for amending their state constitution, then why should they believe the system works?

Because that IS the system. The "will of the people" is thwarted all the time. And why is it OK to follow the prescribed legal process for passing a law that you like, but not OK to follow the prescribed legal process for challenging a law that you don't? Does the system only work when it gives you the result you like?

it would be corrupt for the SCOTUS to then strike it down based on some never before seen legal invention.

As I said before, your characterization of a legal argument as "some never before seen legal invention" is pointless. A legal argument is a legal argument. It is interpreted by the courts. If it has merit, it stands. If it doesn't, it's denied.

The Bush administration has used "some never before seen legal invention" countless times. There's nothing wrong with that. The problem is that they never allowed their arguments to be evaluated by the courts.

Theo N <... (Below threshold)
hcddbz:

Theo N


If you truly believe it's alright for the majority rule process to be applied to individual rights, then lets have a vote on whether blacks should be allowed to vote. I'm sure there are several states that would ban black voting if it were left to popular opinion.

As longs as Article V is followed it could be done to revoke the 14 and 15 amendments.
Which is 2/3 vote ofboth House and the Senate or constitutional convention.


The difference between a Co... (Below threshold)
Scott:

The difference between a Constitutional Republic and a pure democracy is that in the latter two wolves and a sheep can vote on who's for lunch. In the former, constitutional protections prevent such a travesty.

IF, I say IF Prop 8 is found to be unconstitutional, then it should be struck down. Doesn't matter if it had 52% or 96% - unconstitutional means it's not a law.

A valid argument against such an outcome would be that the judges ruled from their personal biases and created the argument for unconstitutionality, but that's a different matter.


If 55% of California voted to ban all firearms would that be constitutional? Would you turn yours in?

Scott,Your argumen... (Below threshold)
Mike:

Scott,

Your argument is invalid.

The Constitution specifically addresses the right of the people to keep and bear arms in the Second Amendment.

The Constitution never specifically addresses the subject of marriage -- it does not specifically enumerate marriage as a right.

If any state voted to ban firearms, the law should be struck down by any judge who can read. The marriage question should be just as clear: the Constitution is silent on marriage, so an honest judge would have to simply vacate the decision. However, liberal judges are experts at divining an amazing array of emanations and penumbras from the written word of the Constitution, so what would happen is really anyone's guess.

One element that is being l... (Below threshold)
Socratease:

One element that is being left out of everybody's calculation is that the voters of California have one more ace to play. A while back the California Supreme Court was essentially nullifying the voter's desire for the death penalty in the state, finding this and that "constitutional" protection against it to the point where no murderer was ever executed.

So California voters recalled three court justices.

Unlike the federal courts, California judges are not above being judged themselves.

Californians use democracy ... (Below threshold)
Parthenon:

Californians use democracy to swipe constitutional rights.

"Conservatives" - many of whom often claim to be the ancestors of John Locke and universally claim to desire less government involvement in our lives - applaud. This would be hilarious were it not so nauseating.

Liberals - whom the aforementioned "conservatives" often deride as Government loving Marxists - defend aforementioned court-recognized constitutional rights, "conservatives" - many of whom have not read the court's May opinion - squeal "Will of the people," as they do whenever it suits them, already ready to squeal 'activist judge' if it suits them the next time.

You people have no shame.

Mike,Amendme... (Below threshold)
Scott:

Mike,

Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

When the Bill of Rights was being debated there were some that feared exactly what has come to pass: that by enumerating certain rights people would come to believe that only those so enumerated exist.

Scott:If we're tal... (Below threshold)
James H:

Scott:

If we're talking same-sex marriage, we're looking at the 14th Amendment as well as equivalent clauses in state constitutions.

This was a debacle created ... (Below threshold)
Mike:

This was a debacle created by the courts and one that should be resolved by the Supreme Court.

Here's how I believe it should have worked:
1. Marriage has, for the past 200 years in America, been defined as being between a man and a woman. That is the status quo and should be regarded as such.
2. The constitution does not allow a federal mandate on gay marriage unless an amendment is passed. It should therefore be left up to the states to decide.
3. Any state should required a super majority of 2/3 to change the status quo and allow gay marriage.
4. Likewise, if gay marriage is was permitted by a super majority, a super majority vote of 2/3 is required to change it back to no gay marriage.

Unfortunately the court undemocratically and unjustifiably used the 14th amendment to somehow argue that denying gay marriage is unconstitutional. (I think the 14th amendment says denying gay people basic democratic rights such as voting is unconstitutional, marriage is a definite stretch).

Now we're in a bind of protestors and non-supermajorities so the question will get asked every year.

The DMAKRAT PARTY OF KALIFO... (Below threshold)
Spurwing Plover:

The DMAKRAT PARTY OF KALIFORNIA are again usurping the will of the people to satsifi their own sinister goals TIME TO KICK THOSE BAD BAD JACKASSES OUT OF THE COUNTRY

Please remember that, in 19... (Below threshold)
Roger Stigliano:

Please remember that, in 1954, it was the will of the majority, at least in the South, that black people should drink at separate fountains, and be prevented from attending white-only schools. But a handful of activist judges, on the U.S. Supreme Court, had the guts to enforce the Equal Protection clause of the U. S. Constitution, and restore the rule of law over the tyranny of the majority. Court rulings on the meaning of constitutions are just as much a part of democracy as ballot initiatives are.

The vote was as close as it... (Below threshold)
ZenMaster:

The vote was as close as it was because a lot of young people were voting for Obama. Given another election, there would have been fewer young people voting, and the outcome would have been more of a supermajority. Give those same young people a few more years to vote again, and they'll be more conservative, and the outcome will be the same, another supermajority in favor of traditional marriage. Gay marriage has never once at the polls. But, I understand the plea for fairness. So maybe the right thing to do is to ban marriage for everyone. That would be the most progressive thing to do. Who can't see that this idea of owing another person, and controlling who they sleep with isn't the most backwards thing anyone could ever imagine. The irony here, is that is seems that liberal gay couple want to be conservative.

two edits: never won once a... (Below threshold)
Zenmaster:

two edits: never won once at the polls.... and ..... the idea of owning another person...




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