[Vision2020] California Supreme Court to Take Up Gay Marriage

Donovan Arnold donovanjarnold2005 at yahoo.com
Sat Nov 22 02:26:03 PST 2008


It seems amazing to me that a civilized society in the 21st would put up to vote the rights one particular group of people. 
 
Would we tolerate this same amendment if it forbid interracial marriage, or perhaps marriage between two different religions?
 
I think this must be a violation of the 14th Amendment. Some things we just should not be voting on in a constitutional democracy. 
 
I also must say that a simple majority vote should not change a constitutional right. It should be at least a 60% majority to change the constitution, otherwise, why have a constitution if a simple vote can override it. 
 
Best Regards,
 
Donovan
 


--- On Fri, 11/21/08, Scott Dredge <scooterd408 at hotmail.com> wrote:

From: Scott Dredge <scooterd408 at hotmail.com>
Subject: Re: [Vision2020] California Supreme Court to Take Up Gay Marriage
To: jeanlivingston at turbonet.com, "viz" <vision2020 at moscow.com>
Date: Friday, November 21, 2008, 10:25 PM




#yiv1148934630 .hmmessage P
{
margin:0px;padding:0px;}
#yiv1148934630 {
font-size:10pt;font-family:Verdana;}



#yiv1148934630 .hmmessage P
{margin:0px;padding:0px;}
#yiv1148934630 {font-size:10pt;font-family:Verdana;}

Great write up Bruce!  The fundys opposing gay marriage are very clever themselves, though.  Dale Courtney once posted a response to me about equal rights for gay couples.  His statement (and I imagine he had straight face when he was writing this) was something to the effect of 'gays have the exact same right to marry a person of the opposite gender as anyone else'.  After you get over the initial chuckle of the absurdity of this statement, it technically may hold legal water.  I think it's fragile, but it also may past legal muster especially among judges with a disdain for homosexuals.

Again it's amazing to me that state consitutions are being amended that add not one iota of rights to anyone and their only effect is to deny rights to others.

-Scott



From: jeanlivingston at turbonet.com
To: vision2020 at moscow.com
Date: Fri, 21 Nov 2008 16:21:02 -0800
Subject: Re: [Vision2020] California Supreme Court to Take Up Gay Marriage





I think Roger is mostly right here in his analysis of what is a state constitutional issue and what is a federal constitutional issue and in which controls what.  The anti-gay marriage initiative in California directly amended the California state constitution through an initiative election passed by the state's voters.  This is mostly a state constitutional issue regarding the amendment of the Callifornia state constitution by its citizens.  Only to the extent that the federal Constitution clearly trumps a contrary provision of the state constitution is the federal constitution involved (or the state constitution affected and invalidated).   Otherwise it is a state issue.  
 
That being said, just because the voters voted for an amendment does not automatically make the amendment valid under the state constitution.  In that respect, I would disagree with Roger that the voter-passed inititive prohibiting gay marriage necessarily passes state constitutional muster.  An amendment passed by the voters might violate some other conflicting provision in the same state constitution and thus create ambiguity over which provision controls.
 
Issues within the California constitution, for example, hypothetical conflicts between a state "equal protection" provision and a state "denial of gays right to marry" provision,  would raise state questions that would need to be resolved by the state courts.  Typically, various adages regarding "rules of construction" would be applied by the state court to resolve ambiguities and conflicts within the state constitution.  The court might side with those opposing gay marriage by following the adage that the specific provision (in this case, "no gay marriage allowed") controls over another more general provision that might apply to the specific gay marriage situation (e.g., state may not deny citizens the right of "liberty" or "equal protection of all laws").  On the other hand, the state court might decide that the equal protection, due process or non-discrimination provisions that may be present in the California Constitution are fundamentally
 more important and therefore control over the recent voter-passed provision that denies the right, conferred on the many (heterosexual marriage), to the few who are now prohibited from exercising that right (those seeking gay marriage).
 
It is my understanding that the U.S. Constitution has never been interpreted by the U.S. Supreme Court with respect to gay marriage and whether gay marriage can be legally prohibited.  The Fourteenth Amendment's Equal Protection Clause (state may not deny to any person the equal protection of its laws) or the liberty interest of the Due Process Clause (state may not deny life, liberty or property w/o due process of law) might well control and prohibit the discrimination experienced by gays through laws denying them the right to marry.  The analysis in reaching that conclusion might be that allowing heterosexuals to marry the unrelated, consenting adult they chose, while denying that right to homosexuals violated the gay persons' right to equal protection.  Then again, the Supreme Court might rule entirely differently.  It might accept that marriage is a relationship that exists only between a man and a woman, and that there is no unlawful
 discrimination or denial of equal protection in prohibiting men from marrying men or women marrying women, when marriage does not include same-sex marriage and when any woman can marry any man that she chooses and any man can marry any woman that he chooses.
 
Two cases from the Supreme Court will likely form the linchpin for any decision finding that prohibitions of gay marriage are unconstitutional.
 
The closest case that I can recall that might inform this debate is Lawrence v. Texas, from 2003. Here is a link to it:
http://supct.law.cornell.edu/supct/html/02-102.ZS.html.   Although Lawrence was decided in favor of the homosexual petitioner, the case does not purport to reach gay marriage.  Rather, the Court found unconstitutional a law prohibiting private sexual contact between two consenting adult homosexuals in the privacy of one's home.
 
Thus far, there is no controlling Supreme Court precedent that  has found anti-gay-marriage laws invalid.  Several state courts have found such laws violate their state's constitutions (Massachussetts, Connecticut and California).  Such a case has yet to be decided by the U.S. Supreme Court, however, and accordingly, no U.S. Supreme Court case mandates that the federal constitution explicitly controls over all state constitutions on this issue.  Therefore, the California Supreme Court is not bound by any federal decision that would automatically endorse or invalidate a California state constitutional provision outlawing gay marriage.   
 
It may well be the case that the Fourteenth Amendment to the U.S. Constitution does prohibit state laws that forbid gays to marry, but the U.S. Supreme Court has not announced any such interpretation of the Fourteenth Amendment to this point in time.  Another important case that might provide a line of analysis that could be adopted pretty easily to extend the right to marry to people of all sexual orientations is Loving v. Virginia, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html.   Loving challenged a Virginia state law that prohibited white and black people from marrying each other.  The Supreme Court ruled the Virginia law violated the Fourteenth Amendment's Due Process and Equal Protection Clauses.
 
I anticipate that the Supreme Court will address this issue in the next 10 years.
 
Bruce Livingston
 
 
 
 
----- Original Message ----- 
From: "lfalen" <lfalen at turbonet.com>
To: "Joseph Campbell" <josephc at wsu.edu>; "Kai Eiselein, Editor" <editor at lataheagle.com>; <kjajmix1 at msn.com>; <vision2020 at moscow.com>; "Tom Hansen" <thansen at moscow.com>
Sent: Thursday, November 20, 2008 5:18 PM
Subject: Re: [Vision2020] California Supreme Court to Take Up Gay Marriage

> You both have a point. One should be protected from the tyranny of the majority. In this case though, I think that the California Constitution states that it can be amended by an initiative. It is clearly constitutional according to the state constitution. Therefore the question becomes does the US. Constitution trump a  state constitution. It of course does. 
> A judge should decide the case on the basis of a strict reading of the US Constitution, not on the basis of writing law from the bench.
> Roger
> -----Original message-----
> From: Joseph Campbell josephc at wsu.edu
> Date: Thu, 20 Nov 2008 13:37:51 -0800
> To: "Kai Eiselein, Editor" editor at lataheagle.comkjajmix1 at msn.com, vision2020 at moscow.com,  Tom Hansen thansen at moscow.com
> Subject: Re: [Vision2020] California Supreme Court to Take Up Gay Marriage
> 
>> That is not the issue. The issue is who decides whether gay marriage is OK?
>> The general CA public, by popular vote? Or the California Supreme Court? I
>> think that the latter is a better judge. Why? Let¹s ask the same question
>> about your right to free speech, or mine. I don¹t want the general CA public
>> to decide whether or not I have that right, and I¹m sure you would agree.
>> What makes marriage different? I don¹t want them to tell me who I should
>> marry either. Do you? Tell me that you don¹t see a problem with letting the
>> public decide who you can and cannot marry?
>> 
>> 
>> On 11/20/08 12:23 PM, "Kai Eiselein, Editor" <editor at lataheagle.com> wrote:
>> 
>> > Let's then.
>> > The issue is gay marriage, not free speech.
>> > 
>> > From: Joseph Campbell <mailto:josephc at wsu.edu>
>> > Sent: Thursday, November 20, 2008 12:20 PM
>> > To: Kai Eiselein, Editor <mailto:editor at lataheagle.com>  ; kjajmix1 at msn.com ;
>> > vision2020 at moscow.com ; Tom Hansen <mailto:thansen at moscow.com>
>> > Subject: Re: [Vision2020] California Supreme Court to Take Up Gay Marriage
>> > 
>> > The question is who should decide matters of law: the people, by popular vote,
>> > or judges, who have knowledge of the Constitution and legal precedent? I think
>> > the latter. Personally, I feel that most of the things below that you find
>> > absurd are in fact absurd. More the reason not to leave the vote up to the
>> > general public.
>> > 
>> > Notice you did not answer whether or not you think that your right to free
>> > speech hinges on their opinion. Do you? And if not that right, why others?
>> > Let¹s stick to one issue at a time, and deal with the others later.
>> > 
>> > Joe
>> > 
>> > On 11/20/08 12:05 PM, "Kai Eiselein, Editor" <editor at lataheagle.com> wrote:
>> > 
>> >> Do societies not have the right to decide what is  acceptable and what isn't?
>> >> Why not make polygamy legal?
>> >> Why not let  brothers marry sisters or first cousins marry first cousins?
>> >> (Other than the  inbreeding issue)
>> >> Why not just make an amendment stating a marriage can be  between ANY
>> >> consenting adults? That would be the best way, wouldn't it?
>> >> I  can just hear the champagne corks popping as divorce lawyers celebrate the
>> >> thought of multiple wives divorcing a husband.
>> >> 
>> >> From: Joseph  Campbell <mailto:josephc at wsu.edu>
>> >> Sent: Thursday, November 20, 2008 11:57 AM
>> >> To: Kai  Eiselein, Editor <mailto:editor at lataheagle.com>   ; kjajmix1 at msn.com
>> >> ; vision2020 at moscow.com ; Tom Hansen <mailto:thansen at moscow.com>
>> >> Subject: Re: [Vision2020] California Supreme Court to Take Up  Gay Marriage
>> >> 
>> >> According to Wikipedia, ³Due  process (more fully due process of law) is the
>> >> principle that the  government must respect all of the legal rights that are
>> >> owed to a person  according to the law of the land, instead of  respecting
>> >> merely some or most of those legal rights.²
>> >> 
>> >> Do you think  that rights are better served by allowing the general public to
>> >> decide who has  the right to speak, to vote, to wed? If to wed, then why not
>> >> to speak? Why  shouldn¹t the general public be allowed to determine whether
>> >> or not you have  the right to speak?
>> >> 
>> >> I¹m trying to bring the issue home to something you  might relate to
>> >> personally. Something to engage your empathetic  imagination.
>> >> 
>> >> 
>> >> On  11/20/08 11:37 AM, "Kai Eiselein, Editor" <editor at lataheagle.com>  wrote:
>> >> 
>> >>  
>> >>> I'm going to play Devil's advocate for a moment, and   to be clear I don't
>> >>> give a rip about gay marriage one way or another.  Hey, if  if gay couples
>> >>> want to keep divorce lawyers in business by  forking over  thousands of
>> >>> dollars in fees and spend months going to  hearing after hearing  after
>> >>> hearing, well, welcome to the hetero  world. Toss in a child or two and
>> >>> becomes even more fun.
>> >>> ...No  State shall make or enforce any law which  shall  abridge the
>> >>> privileges or immunities of citizens of the United  States; nor shall  any
>> >>> State deprive any person of life, liberty, or property,  without  due
>> >>> process of law; nor deny to any person within its jurisdiction the   equal
>> >>> protection of the laws."
>> >>> Doesn't a referendum come under  "due   process"?
>> >>> 
>> >>> --------------------------------------------------
>> >>> From:   "Tom Hansen" <thansen at moscow.com>
>> >>> Sent: Thursday, November  20, 2008  11:16 AM
>> >>> To: <editor at lataheagle.com>;  <kjajmix1 at msn.com>;  <vision2020 at moscow.com>
>> >>> Subject:  Re: [Vision2020] California Supreme  Court to Take Up Gay
>> >>> Marriage
>> >>> 
>> >>>>> >>From Article 6 of the US  Constitution  -
>> >>>> > 
>> >>>> > "This Constitution, and the Laws of the United   States which shall be
>> >>>> made 
>> >>>> > in Pursuance thereof; and all  Treaties  made, or which shall be made,
>> >>>> under 
>> >>>> > the Authority of  the United  States, shall be the supreme Law of the
>> >>>> Land; 
>> >>>> > and  the Judges in every  State shall be bound thereby, any Thing in the
>> >>>> > Constitution or Laws  of any State to the Contrary  notwithstanding."
>> >>>> > 
>> >>>> >  -------------------
>> >>>> >  
>> >>>>> >>From the 14th Amendment to the US  Constitution -
>> >>>> >  
>> >>>> > "All persons born or naturalized in the United  States, and  subject to
>> >>>> the 
>> >>>> > jurisdiction thereof, are citizens of the   United States and of the
>> >>>> State 
>> >>>> > wherein they reside. No State  shall  make or enforce any law which shall
>> >>>> > abridge the  privileges or  immunities of citizens of the United States;
>> >>>> nor  
>> >>>> > shall any State  deprive any person of life, liberty, or  property,
>> >>>> without 
>> >>>> > due process  of law; nor deny to any person  within its jurisdiction the
>> >>>> > equal  protection of the  laws."
>> >>>> > 
>> >>>> >  -------------------------------------
>> >>>> >  
>> >>>> > Now, which part of the  US Constitution are you struggling  with, Kai?
>> >>>> > 
>> >>>> > Tom  Hansen
>> >>>> > Moscow,
>> >>>> >  Idaho
>> >>>> > 
>> >>>> >   ---------------------------------------------
>> >>>> > This message was  sent by  First Step Internet.
>> >>>> >             http://www.fsr.com/
>> >>>> > 
>> >>>> >
>> >>> Kai   Eiselein
>> >>> Editor, Latah Eagle
>> >>> 
>> >>>  
>> >>>  
>> >>> 
>> >>>  =======================================================
>> >>>  List   services made available by First Step Internet,
>> >>>  serving the   communities of the Palouse since 1994.
>> >>>                http://www.fsr.net
>> >>>           mailto:Vision2020 at moscow.com
>> >>> =======================================================
>> >> 
>> >> Kai  Eiselein
>> >> Editor, Latah Eagle
>> >> 
>> > 
>> > Kai Eiselein
>> > Editor, Latah Eagle
>> > 
>> 
>> 
>> 
>> 
> 
> =======================================================
> List services made available by First Step Internet, 
> serving the communities of the Palouse since 1994.   
>               http://www.fsr.net                       
>          mailto:Vision2020 at moscow.com
> =======================================================


Windows Live Hotmail now works up to 70% faster. Sign up today. =======================================================
 List services made available by First Step Internet, 
 serving the communities of the Palouse since 1994.   
               http://www.fsr.net                       
          mailto:Vision2020 at moscow.com
=======================================================


      
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mailman.fsr.com/pipermail/vision2020/attachments/20081122/a97dc840/attachment-0001.html 


More information about the Vision2020 mailing list