The Voice of the People Denied

[LittleWyvern]

The judiciary is supposed to be independent of the people. They are supposed to judge based on the law as it stands.

[Maxel]

The judiciary is supposed to be independent of the people. They are supposed to judge based on the law as it stands.

Forgive my ignorance. I'm not knowledgeable of American law.

So, if the judicial branch sees a disconnect between the standing law and the voice of the people, it's their job to overturn the voice of the people in favor of standing law as they interpret it? I'm really confused about this. I do appreciate so many more knowledgeable than I explaining the situation.

[Islander]

The judiciary is supposed to be independent of the people. They are supposed to judge based on the law as it stands.

Yeah, except for the fact that they are also influenced by the political operators, not to mention their own bias and ideological leanings.

[LittleWyvern]

So, if the judicial branch sees a disconnect between the standing law and the voice of the people, it's their job to overturn the voice of the people in favor of standing law as they interpret it? I'm really confused about this. I do appreciate so many more knowledgeable than I explaining the situation.

You are correct. The judiciary exists to uphold the law. That is their singular purpose. To this end, it is important that the judiciary is as independent as possible and avoid any outside influences, in order to give a pure and unbiased interpretation of the law. In this case, the judiciary is also responsible to ensure correct procedure is followed in drafting new laws and abolishing old ones. And so it is with this case: some people feel that Prop 8 is a major change to the Constitution, as it takes a civil right (some cases in the California Supreme Court have edged toward making marriage a civil right: the fact that marriage is a civil right is the opinion of that court, not necessarily me) away from a minority group. Such major revisions, per the terms of the constitution of California, requires a 2/3 vote. Therefore, it is up to the judiciary to decide, based on the law alone, whether or not Prop 8 is a major revision or whether or not it is even constitutional. Now, the people can try to propose an amendment to allow major revisions to the constitution by a simple plurality (although that might itself be a major revision, haha), or propose an amendment that makes bills such as Prop 8 constitutional, and if those pass the judiciary would not be able to do anything. But until then, the judicary must judge new law by the procedures and decisions of the old, no matter what the voice of the people might say.

Yeah, except for the fact that they are also influenced by the political operators, not to mention their own bias and ideological leanings.

They shouldn't be (in theory). If they are, they aren't good judges.

[Islander]

I am just waiting to see what these hypocrites do. 44 other states have added similar amendments to their constitutions and not one has received a challenge asserting it is a "major revision." The whole argument, as currently presented, is a technical challenge to prop 8. The judges do not dare touch the legal argument again given the loud voice of the people, so they are looking for a technicality to try and see if they can overturn it on those grounds.

It is just disgusting.

[LittleWyvern]

44 other states have added similar amendments to their constitutions and not one has received a challenge asserting it is a "major revision."

As far as I'm aware this whole "major revision" thing is unique to California's constitution.

[hordak]

I am just waiting to see what these hypocrites do. 44 other states have added similar amendments to their constitutions and not one has received a challenge asserting it is a "major revision." The whole argument, as currently presented, is a technical challenge to prop 8. The judges do not dare touch the legal argument again given the loud voice of the people, so they are looking for a technicality to try and see if they can overturn it on those grounds.

It is just disgusting.

Actually the judges don't look for anything. They hear the cases brought before them by the people.

[Islander]

Actually the judges don't look for anything. They hear the cases brought before them by the people.

You are just too naive.

They decided a year ago to overturn the will of the people by setting aside prop 22 and allowing SSM. Do you really believe that the 3 hour oral argument has anything to do with the rationale being weighted currently by those judges? It is the public spectacle of due process or "having your day in court." The whole hearing is for public consumption. They had a year to study the case so no new information or novel legal theory was set forth in the public hearing. The briefs on both sides were submitted months ago.

The trick here is what to do and how to present the argument. They are aware of the political pressures and the price to pay. They have now 90 days render a ruling and gauge the social sentiment.

[Hemidakota]

This issue needs to be moved to the national Supreme Court due to the prevailing bias opinions of the four on the bench, the state legislature, and the attorney general.

I even wrote to the Attorney General office to seek guidance on how us state voters can recall the Attorney General himself. :)

[LittleWyvern]

They decided a year ago to overturn the will of the people by setting aside prop 22 and allowing SSM.

That's because the Supreme Court found the proposition unconstitutional. You can't pass and keep an unconstitutional law just because a plurality wants it there, it would defeat the purpose of having a written constitution in the first place.

This issue needs to be moved to the national Supreme Court due to the prevailing bias opinions of the four on the bench, the state legislature, and the attorney general.

I have a feeling, no matter what the outcome, it's going to be appealed anyway.

[Hemidakota]

I had a personal vision on this that I shared with Elphie on this site that in the end, they do get their way.

[Hemidakota]

That's because the Supreme Court found the proposition unconstitutional. You can't pass and keep an unconstitutional law just because a plurality wants it there, it would defeat the purpose of having a written constitution in the first place.

According to this ruling, there is room to marry your own kindred, to marry animals, and to reinstate polygamy.

The opinion, written by Chief Justice Ronald George, cited the court's 1948 decision in Perez v. Sharp that reversed the state's interracial marriages ban. The court found that "equal respect and dignity" of marriage is a "basic civil right" that cannot be withheld from same-sex couples, that sexual orientation is a protected class like race and gender, and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution.[12] It was the first state high court in the country to do so.[13] The Massachusetts Supreme Judicial Court, by contrast, did not find sexual orientation to be a protected class, and instead voided its gay-marriage ban on rational basis review.[14]

[cofchristcousin]

Animals do not have constitutional rights and cannot sign contracts as is common knowledge. This kind of rhetoric inflames an already difficult discussion and makes respectful dialog virtually impossible.

[Hemidakota]

Why not? Just kidding...

Actually, I look down the road as to the future more than my own accord. It opens that box of worms when we begin to allow the courts to determine morality issues. We will be no better off than those Cities of the Plain. However seeing your strong vexation with this topic, I notice you didn't say anything with kindred marrying and polygamy.

[Just_A_Guy]

Do you really believe that the 3 hour oral argument has anything to do with the rationale being weighted currently by those judges? It is the public spectacle of due process or "having your day in court." The whole hearing is for public consumption. They had a year to study the case so no new information or novel legal theory was set forth in the public hearing. The briefs on both sides were submitted months ago.

Do you believe that all oral arguments in appellate courts are similarly held merely for the sake of spectacle?

I've been wrong in my SSM predictions before (I'm still in shock that all of Common Ground's Utah bills died); but I'm going to go out on a limb and say that at least one of the In re Marriage justices is going to chicken out when it comes to nullifying a constitutional amendment as opposed to a run-of-the-mill public law. Prop 8 will stand, but I think it will be undone by another popular vote within the next ten years.

I would also add that California's amend-by-simple-majority scheme seems rather silly and has caused no end of trouble for the state on a variety of issues. It's fortunate that the Prop 8 supporters had that avenue available to them; but I hope it will be closed in the long run. We are a democratic republic, not a mobocracy.

By the way (while I'm making completely unwarranted predictions here); I highly doubt that the US Supreme Court will hear any appeal of this case. SCOTUS is not in the habit of telling state courts what their own constitutions "really" mean (Bush v. Gore aside).

[Hemidakota]

Remember now, four are from our beloved city of San Francisco. I don't see them in bended to the will of the massed but to the 2-percent minority.

They heard the court case of People of Colorado against the state for undermining the voters and won.

[Hemidakota]

Welcome back CC...

[cofchristcousin]

First cousins can marry in some places. The reason for not allowing it has been based on the likelyhood of birth defects to their children. that was a compelling reason for the State to make those marriages illegal. I believe only 20 some states have that law. If challenged, I believe those laws would fail because modern genetic testing would protect the children.

Polygamy adds more dynamics than simply a marriage between two people of the same sex. I do not know enough about the issue to stand for it or against it. My thinking is that it is a exploitive relationship for the women involved, but I don't know if my argument would pass the strict scrutiny test required by the 14th amendment.

Regardless, gay marriage is decided on it's own merit legally. Slippery slope arguements are part of the public conversation, but not the judicial deliberations.

[Hemidakota]

I do believe, using the last ruling again, kindred marriage and now polygamy would be a case of discrimination on the basis of the right to marry anyone you pleased. Right or wrong CC? Reading from your own posting using scientific reasoning why kindred marriage is harmful and H/L marriages are not?

Seeing the push not only for the same gender marriage, the right of the government to interfere in the church doctrines in the latter 1880s, was wrong to oppose polygamy according to last California ruling.

[lusciouschaos]

Here is my prediction based on listening to the 3 hour session this am:

I do not believe the California Supreme Court will rule to strike down the Prop 8. Not because the majority of the justices believe that same sex marriage is wrong but because they do not believe they have the power to vote against the will of the people.

Justice Joyce Kenard was the most vocal judge at the proceeding. In April 2008, she voted to allow same sex couples to marry. Today, she all but gave her opinion, that the court does not have the power to discount the vote from Nov.

That would make the vote 4 to 3 in favor of upholding Prop 8 minimally.

I could be wrong, wouldn't be the first time, but that is my read.

The bench didn't seem to agree that the vote was a revision not an amendment.

Don't know where it goes from here. Eventually the Supreme Court but how long till that happens is anybody's guess. Much like the time/place of the Savior's return. No man knows.....

Edited March 6, 2009 by lusciouschaos
spelling error

[Just_A_Guy]

Remember now, four are from our beloved city of San Francisco.

Umm . . . judging by their biographies on the state supreme court's webpage, three of the four justices forming the In re Marriage majority are from Los Angeles.

[Just_A_Guy]

Lusciouschaos, I didn't get to see the orals today. Thanks for the sum-up.

[cofchristcousin]

Hemi, the quoted ruling is not all encompassing. The key is Strict Scrutiny. It's a legal term that has certain qualifications found here at wiki. wiki is easy, but you can verify it at a legal dictionary. Strict scrutiny - Wikipedia, the free encyclopedia

The state can deny the fundamental right of marriage to a group of people if there is a good reason. We do not allow minors to marry. There are good reasons for that limitation of the right to marriage, that pass the test of strict scrutiny. In some places close relatives may not marry. There were good reasons for that limitation, but not so much now that there is genetic testing. If challenged, it is likely that close relatives would be allowed to marry.

Today the question is asking if there is a good legal reason to deny same sex marriage. The reason must pass the Strict Scrutiny test. Tomorrow the question might be about polygamy, and those dynamics would face the strict scrutiny test.

Edited March 6, 2009 by cofchristcousin

[Just_A_Guy]

As I understand it, though, the petitioners haven't made this about strict scrutiny and that isn't the major issue the court is looking at. Doesn't the argument primarily come up through the California AG's amicus brief? Was the California AG given time to expound this argument during orals?

[cofchristcousin]

I think you are probably right. I was addressing Hemi's statement.

I don't know that there is a case here, it's above my head. My thinking is that the issue will come to another vote by proposition, and gay marriage will come that way. It might be less controversial if it comes by vote. The vote gets closer each time, this time 52-48 percent. Next time it will likely pass, partly because younger people largely have no problem with marriage equality. Each year there are more young voters.