Justices question Prop. 8 opponents

Sacramento Bee ^ | 3/5/9 | Susan Ferriss and Peter Hecht

[SmithL]

SAN FRANCISCO -- California Supreme Court justices launched immediately into a round of questioning Thursday challenging the contention of gay marriage advocates that Proposition 8 was an improper revision of the state constitution.

As lawyer Shannon Minter began a presentation challenging the measure banning gay marriage approved by voters in November, justices raised the possibility that the effect of the initiative was narrow, changing only the terminology of "marriage" and not the rights of same-sex couples.

"Relegating same-sex couples to domestic partnership does not provide them with everything but a word," Minter replied. "Proposition 8 changeas the basic nature of our government."

Minter argued that Proposition 8 was an improper revision because it changed the framework of the state constitution - the balance between minority and majority rights.

But he acknowledged that reducing rights of minority groups wasn't the issue considered in previous cases in which the court found improper revisions.

The court is hearing oral arguments for and against the validity of Proposition 8, the controversial November ballot measure that barred same-sex unions in California by declaring marriage only for a man and a woman.

The debate will turn on the constitutional right of equal protection, the role of the judiciary and the power of the electorate in configuring the state constitution.

The high court's seven justices have asked for arguments on three key questions:

• Should Proposition 8 have been submitted to voters as a "revision" to the constitution, which would have required lawmakers to place it on the ballot? The measure made the ballot via initiative, as an "amendment" to the constitution.

• Does Proposition 8 violate the separation of powers provisions of the constitution because it should have been approved by the Legislature first?

• If the Proposition 8 is constitutional, what is to become of the estimated 19,000 same-sex marriages

[WheresMyBailout]

This is the problem with poorly worded laws and state constitutions.

[txnativegop]

Prop 8 is a dead duck. the paperwork just hasn’t been filled out yet.

[eureka!]

I’ll bet more than one judge is thinking of former Justice Rose Bird...

[cups]

This is BS....The voters have approved this MULTIPLE TIMES...Right or wrong, WE THE PEOPLE have spoken!

ballot was issued to ban same sex marriage...legal challenged declared illegal on the grounds that the State constution had to be changed..so voters had to AMEND THE STATE constution which was voted on BY THE PEOPLE and passed... Ramming it down people’s throats isn’t the answer to making them “equal”. All that does is p*ss people off.

G*DDAMN TRIAL LAWYERS HAVE HELPED RUIN THIS COUNTRY...

[edcoil]

“Constitutional right of equal protection,”

Does our government treat everyone equally? Why does one citizen pay more in taxes then another? Why do public schools in some areas get free buses but others pay? Why does government give money, homes, medical care, food to some and not others?

If Prop. 8 is overturned, The Will of the People, will be removed and open the state to millions of lawsuits by those burden by the unfairness of government.

[edcoil]

Florida and AZ passed the same on the same day bringing to over 30 states with this. Are they going through the same that we have not heard of or is California being singled out?

[DaveyB]

Prop 8 in CA or amendment 2 in Colorado (1996) - the constitution has been ruled unconstitutional by those appointed to protect the constitution. The will of the people, the intent of our framers, and the wording of the law does not matter when it comes to the crime of homosexuality. The blacked robed tyrants have spoken and the people no longer have a say, in fact to voice a contrary opinion is hate speech which is no longer protected by the first amendment.

In 1992, Colorado voters approved Amendment 2 to the state constitution by a narrow margin (54% to 47%). According to the U.S. Supreme Court decision, it would have prohibited "all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their 'homosexual, lesbian or bisexual orientation, conduct, practices or relationships'."

History will judge us with contempt for what we have squandered.

[pogo101]

I’m still going to vote “do not retain” on all the justices who invented a right to same sex marriage. (I actually favor some form of same-sex unions / rights, but I demand that it be legislated, not judicially decreed from nothingness.)

[rogue yam]

Does Proposition 8 violate the separation of powers provisions of the constitution because it should have been approved by the Legislature first?

This is the one that has me flummoxed.

Since when is there a "separation of powers" between the Legislature and the electorate?

[j.havenfarm]

Bingo. I have seen the Chief Justice at close quarters for a long time. Ronald George is a self-serving and self-aggrandizing would-be autocrat. It's doubtful that the anti-Prop 8 forces would muster up to defend he and his pals from a recall. He might beat it, but even having to fight a recall election would sully his Solomon-like persona. I'm putting my money on Prop 8 being upheld.

[Beagle8U]

““Constitutional right of equal protection,”

I doubt they will get far with that argument. All it means that everyone must be treated equally in Government programs.

Any male queer has the equal right to marry any carpet muncher that will have them.

It doesn't mean that three legged midgets must be allowed to marry their pet goat.

They would sure fit minority status in the general population, but fail to meet anything close to what marriage is about.

[eureka!]

I’m with you pogo come voting time. And yes jh, ‘tis cause for pause for the court. But for the ‘rat/union/gay alliance and re$ource$, recall would be a sure thing...

[longtermmemmory]

the 19,000 marriages could be addressed the same way that common law marrage was addressed in states that abolished that marriage.

It was “grandfathered” but no new common law marriages were allowed.

The other view is they just become the domestic partners.

[itsahoot]

The debate will turn on the constitutional right of equal protection

No it will depend on how many Gays and Gay advocates are involved in the decision. The Constitution will not enter into the decision, except in some twisted convoluted way.

[Publius6961]

For those fascinated by the process where sausages are made, or by world class sophistry, watch it live,

Live Court Proceedings

The arguments are mind blowing. Bindblowingly stupid, but delivered with a straight face.
"Inalienable right" includes the right for anyone to "marry" anyone else they choose. And it has always been thus, but it was only last year that our present California Supreme Court decided that the fundamental rights included the right "to marry anyone they want."

If that were so, (and no justice has had the ***** to ask) the obvious question: How many gay marriages were performed for the hundred years following the 1879 California State Constitution?

The original framers didn't "know" what they meant?
The original framers were incompetent in not minutely defining every exception and every application of "fundamental rights?"

The gay subculture and their supporters are attempting to hijack the discussion from the substantive issue, can the citizen of California adopt an Constitutional initiative to the red herring, is Prop 8 a revision or an ammendment?

That is as obvious and odious obfuscation of the issue.

[Publius6961]

I’m still going to vote “do not retain” on all the justices who invented a right to same sex marriage. (I actually favor some form of same-sex unions / rights, but I demand that it be legislated, not judicially decreed from nothingness.)

Same here.

More relevant, the point has not been stressed enough, that this is a huge fight over the use of a word, nothing more: marriage.

So yes, many justices need to be replaced; including the Chief. It's been done before. Recently.

Or maybe they will argue that we can no longer do that, because it's a "revision" not an "amendment" to the Constitution?

[madprof98]

"Proposition 8 changes the basic nature of our government."

The "basic nature" of our GOVERNMENT??? What about the "basic nature" of HUMANITY--the male/female part??? I was going to ask how somebody could even ask a question like this with a straight face, but I guess the question answers itself.

[Publius6961]

I have seen the Chief Justice at close quarters for a long time. Ronald George is a self-serving and self-aggrandizing would-be autocrat. It's doubtful that the anti-Prop 8 forces would muster up to defend he and his pals from a recall. He might beat it, but even having to fight a recall election would sully his Solomon-like persona. I'm putting my money on Prop 8 being upheld.

Perhaps it would be helpful to list the vote in the "penumbra" pro-gay decision of 2008...

Voting for:

Ronald M. George (Chief)
Joyce L. Kennard
Kathryn Mickle Werdegar
Carlos R. Moreno

Voting Against:

Marvin R. Baxter
Ming W. Chin
Carol A. Corrigan

[Publius6961]

This is the problem with poorly worded laws and state constitutions.

Which would include every law or constitution ever written.

Personally, I think it's impossible to write a law or a constitution that can be totally understood by pre-schoolers ..... or "progressives."

Take your pick.
Intelligent and rational inferences cannot be made by either group, for different reasons.