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<DIV>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 <EM>mostly</EM> 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. </DIV>
<DIV> </DIV>
<DIV>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.</DIV>
<DIV> </DIV>
<DIV>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).</DIV>
<DIV> </DIV>
<DIV>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.</DIV>
<DIV> </DIV>
<DIV>Two cases from the Supreme Court will likely form the linchpin for any
decision finding that prohibitions of gay marriage are unconstitutional.</DIV>
<DIV> </DIV>
<DIV>The closest case that I can recall that might inform this debate is
<U>Lawrence v. Texas</U>, from 2003. Here is a link to it:</DIV>
<DIV><A
href="http://supct.law.cornell.edu/supct/html/02-102.ZS.html">http://supct.law.cornell.edu/supct/html/02-102.ZS.html</A>.
Although <U>Lawrence</U> 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.</DIV>
<DIV> </DIV>
<DIV>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. </DIV>
<DIV> </DIV>
<DIV>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 <U>Loving v. Virginia</U>, <A
href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html">http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html</A>.
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.</DIV>
<DIV> </DIV>
<DIV>I anticipate that the Supreme Court will address this issue in the next 10
years.</DIV>
<DIV> </DIV>
<DIV>Bruce Livingston</DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV>----- Original Message -----
<DIV>From: "lfalen" <<A
href="mailto:lfalen@turbonet.com">lfalen@turbonet.com</A>></DIV>
<DIV>To: "Joseph Campbell" <<A
href="mailto:josephc@wsu.edu">josephc@wsu.edu</A>>; "Kai Eiselein, Editor"
<<A href="mailto:editor@lataheagle.com">editor@lataheagle.com</A>>; <<A
href="mailto:kjajmix1@msn.com">kjajmix1@msn.com</A>>; <<A
href="mailto:vision2020@moscow.com">vision2020@moscow.com</A>>; "Tom Hansen"
<<A href="mailto:thansen@moscow.com">thansen@moscow.com</A>></DIV>
<DIV>Sent: Thursday, November 20, 2008 5:18 PM</DIV>
<DIV>Subject: Re: [Vision2020] California Supreme Court to Take Up Gay
Marriage</DIV></DIV>
<DIV><BR></DIV>> 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. <BR>> 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.<BR>>
Roger<BR>> -----Original message-----<BR>> From: Joseph Campbell <A
href="mailto:josephc@wsu.edu">josephc@wsu.edu</A><BR>> Date: Thu, 20 Nov 2008
13:37:51 -0800<BR>> To: "Kai Eiselein, Editor" <A
href="mailto:editor@lataheagle.com">editor@lataheagle.com</A>, <A
href="mailto:kjajmix1@msn.com">kjajmix1@msn.com</A>, <A
href="mailto:vision2020@moscow.com">vision2020@moscow.com</A>, Tom Hansen
<A href="mailto:thansen@moscow.com">thansen@moscow.com</A><BR>> Subject: Re:
[Vision2020] California Supreme Court to Take Up Gay Marriage<BR>>
<BR>>> That is not the issue. The issue is who decides whether gay
marriage is OK?<BR>>> The general CA public, by popular vote? Or the
California Supreme Court? I<BR>>> think that the latter is a better judge.
Why? Let¹s ask the same question<BR>>> about your right to free speech, or
mine. I don¹t want the general CA public<BR>>> to decide whether or not I
have that right, and I¹m sure you would agree.<BR>>> What makes marriage
different? I don¹t want them to tell me who I should<BR>>> marry either.
Do you? Tell me that you don¹t see a problem with letting the<BR>>> public
decide who you can and cannot marry?<BR>>> <BR>>> <BR>>> On
11/20/08 12:23 PM, "Kai Eiselein, Editor" <<A
href="mailto:editor@lataheagle.com">editor@lataheagle.com</A>>
wrote:<BR>>> <BR>>> > Let's then.<BR>>> > The issue is
gay marriage, not free speech.<BR>>> > <BR>>> > From: Joseph
Campbell <<A
href="mailto:josephc@wsu.edu">mailto:josephc@wsu.edu</A>><BR>>> >
Sent: Thursday, November 20, 2008 12:20 PM<BR>>> > To: Kai Eiselein,
Editor <<A
href="mailto:editor@lataheagle.com">mailto:editor@lataheagle.com</A>> ;
<A href="mailto:kjajmix1@msn.com">kjajmix1@msn.com</A> ;<BR>>> > <A
href="mailto:vision2020@moscow.com">vision2020@moscow.com</A> ; Tom Hansen
<<A
href="mailto:thansen@moscow.com">mailto:thansen@moscow.com</A>><BR>>>
> Subject: Re: [Vision2020] California Supreme Court to Take Up Gay
Marriage<BR>>> > <BR>>> > The question is who should decide
matters of law: the people, by popular vote,<BR>>> > or judges, who
have knowledge of the Constitution and legal precedent? I think<BR>>> >
the latter. Personally, I feel that most of the things below that you
find<BR>>> > absurd are in fact absurd. More the reason not to leave
the vote up to the<BR>>> > general public.<BR>>> >
<BR>>> > Notice you did not answer whether or not you think that your
right to free<BR>>> > speech hinges on their opinion. Do you? And if
not that right, why others?<BR>>> > Let¹s stick to one issue at a time,
and deal with the others later.<BR>>> > <BR>>> >
Joe<BR>>> > <BR>>> > On 11/20/08 12:05 PM, "Kai Eiselein,
Editor" <<A href="mailto:editor@lataheagle.com">editor@lataheagle.com</A>>
wrote:<BR>>> > <BR>>> >> Do societies not have the right to
decide what is acceptable and what isn't?<BR>>> >> Why not
make polygamy legal?<BR>>> >> Why not let brothers marry
sisters or first cousins marry first cousins?<BR>>> >> (Other than
the inbreeding issue)<BR>>> >> Why not just make an amendment
stating a marriage can be between ANY<BR>>> >> consenting
adults? That would be the best way, wouldn't it?<BR>>> >> I
can just hear the champagne corks popping as divorce lawyers celebrate
the<BR>>> >> thought of multiple wives divorcing a
husband.<BR>>> >> <BR>>> >> From: Joseph Campbell
<<A href="mailto:josephc@wsu.edu">mailto:josephc@wsu.edu</A>><BR>>>
>> Sent: Thursday, November 20, 2008 11:57 AM<BR>>> >> To:
Kai Eiselein, Editor <<A
href="mailto:editor@lataheagle.com">mailto:editor@lataheagle.com</A>>
; <A href="mailto:kjajmix1@msn.com">kjajmix1@msn.com</A><BR>>> >> ;
<A href="mailto:vision2020@moscow.com">vision2020@moscow.com</A> ; Tom Hansen
<<A
href="mailto:thansen@moscow.com">mailto:thansen@moscow.com</A>><BR>>>
>> Subject: Re: [Vision2020] California Supreme Court to Take Up Gay
Marriage<BR>>> >> <BR>>> >> According to Wikipedia,
³Due process (more fully due process of law) is the<BR>>> >>
principle that the government must respect all of the legal rights that
are<BR>>> >> owed to a person according to the law of the
land, instead of respecting<BR>>> >> merely some or most of
those legal rights.²<BR>>> >> <BR>>> >> Do you
think that rights are better served by allowing the general public
to<BR>>> >> decide who has the right to speak, to vote, to
wed? If to wed, then why not<BR>>> >> to speak? Why shouldn¹t
the general public be allowed to determine whether<BR>>> >> or not
you have the right to speak?<BR>>> >> <BR>>> >>
I¹m trying to bring the issue home to something you might relate
to<BR>>> >> personally. Something to engage your empathetic
imagination.<BR>>> >> <BR>>> >> <BR>>> >>
On 11/20/08 11:37 AM, "Kai Eiselein, Editor" <<A
href="mailto:editor@lataheagle.com">editor@lataheagle.com</A>>
wrote:<BR>>> >> <BR>>> >> <BR>>>
>>> I'm going to play Devil's advocate for a moment, and to
be clear I don't<BR>>> >>> give a rip about gay marriage one way
or another. Hey, if if gay couples<BR>>> >>> want to
keep divorce lawyers in business by forking over thousands
of<BR>>> >>> dollars in fees and spend months going to
hearing after hearing after<BR>>> >>> hearing, well,
welcome to the hetero world. Toss in a child or two and<BR>>>
>>> becomes even more fun.<BR>>> >>> ...No State
shall make or enforce any law which shall abridge the<BR>>>
>>> privileges or immunities of citizens of the United States;
nor shall any<BR>>> >>> State deprive any person of life,
liberty, or property, without due<BR>>> >>> process
of law; nor deny to any person within its jurisdiction the
equal<BR>>> >>> protection of the laws."<BR>>> >>>
Doesn't a referendum come under "due process"?<BR>>>
>>> <BR>>> >>>
--------------------------------------------------<BR>>> >>>
From: "Tom Hansen" <<A
href="mailto:thansen@moscow.com">thansen@moscow.com</A>><BR>>>
>>> Sent: Thursday, November 20, 2008 11:16 AM<BR>>>
>>> To: <<A
href="mailto:editor@lataheagle.com">editor@lataheagle.com</A>>; <<A
href="mailto:kjajmix1@msn.com">kjajmix1@msn.com</A>>; <<A
href="mailto:vision2020@moscow.com">vision2020@moscow.com</A>><BR>>>
>>> Subject: Re: [Vision2020] California Supreme Court to
Take Up Gay<BR>>> >>> Marriage<BR>>> >>>
<BR>>> >>>>> >>From Article 6 of the US
Constitution -<BR>>> >>>> > <BR>>>
>>>> > "This Constitution, and the Laws of the United
States which shall be<BR>>> >>>> made <BR>>>
>>>> > in Pursuance thereof; and all Treaties made,
or which shall be made,<BR>>> >>>> under <BR>>>
>>>> > the Authority of the United States, shall be
the supreme Law of the<BR>>> >>>> Land; <BR>>>
>>>> > and the Judges in every State shall be bound
thereby, any Thing in the<BR>>> >>>> > Constitution or
Laws of any State to the Contrary notwithstanding."<BR>>>
>>>> > <BR>>> >>>> >
-------------------<BR>>> >>>> > <BR>>>
>>>>> >>From the 14th Amendment to the US
Constitution -<BR>>> >>>> > <BR>>>
>>>> > "All persons born or naturalized in the United
States, and subject to<BR>>> >>>> the <BR>>>
>>>> > jurisdiction thereof, are citizens of the
United States and of the<BR>>> >>>> State <BR>>>
>>>> > wherein they reside. No State shall make or
enforce any law which shall<BR>>> >>>> > abridge the
privileges or immunities of citizens of the United States;<BR>>>
>>>> nor <BR>>> >>>> > shall any
State deprive any person of life, liberty, or property,<BR>>>
>>>> without <BR>>> >>>> > due process of
law; nor deny to any person within its jurisdiction the<BR>>>
>>>> > equal protection of the laws."<BR>>>
>>>> > <BR>>> >>>> >
-------------------------------------<BR>>> >>>> >
<BR>>> >>>> > Now, which part of the US Constitution
are you struggling with, Kai?<BR>>> >>>> >
<BR>>> >>>> > Tom Hansen<BR>>> >>>>
> Moscow,<BR>>> >>>> > Idaho<BR>>>
>>>> > <BR>>> >>>> >
---------------------------------------------<BR>>> >>>> >
This message was sent by First Step Internet.<BR>>>
>>>>
> <A
href="http://www.fsr.com/">http://www.fsr.com/</A><BR>>> >>>>
> <BR>>> >>>> ><BR>>> >>> Kai
Eiselein<BR>>> >>> Editor, Latah Eagle<BR>>> >>>
<BR>>> >>> <BR>>> >>> <BR>>>
>>> <BR>>> >>>
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href="mailto:Vision2020@moscow.com">mailto:Vision2020@moscow.com</A><BR>>>
>>> =======================================================<BR>>>
>> <BR>>> >> Kai Eiselein<BR>>> >> Editor,
Latah Eagle<BR>>> >> <BR>>> > <BR>>> > Kai
Eiselein<BR>>> > Editor, Latah Eagle<BR>>> > <BR>>>
<BR>>> <BR>>> <BR>>> <BR>> <BR>>
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