The Voice of the People Denied

[hordak]

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.

If prop 22 was overturned by the California Supreme Court then I expect prop 8 will be as well due to Stare Decisis. Though it is more complex due to it being an constitutional amendment.

That being said I wasn't saying that the judges won't overturn it or even that they don't have personal opinions but that they don't seek out to fight the will of the people. We always hear about "activist judges" overturning the will of the people. Blaming the judges for doing their job. As if Clarence Thomas gets pulled over for not wearing his seat belt and decides they should rule seat belt laws unconstitutional.

These same "activist judges" overturning the will of the people is why black and white students can attend the same schools. (and i'm not saying race in anything like sexual orientation)

Whether or not we agree with the courts decision we have no right criticize them for doing their job and hearing the cases brought to them by the people. That was my point.

[Just_A_Guy]

Interesting sum-up of the arguments over at the Volokh Conspiracy.

[Hemidakota]

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.

Thanks CC for your comments.

[Hemidakota]

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.....

Thanks for the update.