Notice: Forums will be shutdown by June 2019

To focus on better serving our members, we've decided to shut down the POF forums.

While regular posting is now disabled, you can continue to view all threads until the end of June 2019. Event Hosts can still create and promote events while we work on a new and improved event creation service for you.

Thank you!

Plentyoffish dating forums are a place to meet singles and get dating advice or share dating experiences etc. Hopefully you will all have fun meeting singles and try out this online dating thing... Remember that we are the largest free online dating service, so you will never have to pay a dime to meet your soulmate.
     
Show ALL Forums  > California  >      Home login  
 AUTHOR
 cncgandolf
Joined: 7/29/2007
Msg: 764
view profile
History
Food for thought.Page 13 of 52    (12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52)
"KARL ROVE!!!!!! I know he's pure evil, but, he's also the definition of effectiveness. "

You're kidding, right? He destroyed his candidate's campaign and his methods likely cost McCain whatever chance he might have had. Many Americans hope to never see his lieing smearing duping unethical and immoral campaign practices again.
 amusinglisa
Joined: 5/4/2008
Msg: 796
Prop 8 Passed
Posted: 11/9/2008 9:31:00 PM
There is a little more to it than the whole thing about who thinks what is OK and who doesn't: There is the matter of justice and non-discrimination.

If a whole school full of kids might decide one kid takes too much time in the library or reads too many of the books so should be banned from the school library and have to use the public library (that has a whole lot of books), we would all expect a teacher, the librarian or the principal to step in and say "not OK" no matter what the majority says.

In the same way, we have a judicial system set up to weigh whether a law is just and fair no matter what the opinion of either the citizens or the executive office.

Like in Brown vs. The Board of Education, when the general population thought that "separate but equal" was OK and the supreme court ruled otherwise, we will have to put this measure to the test in the judicial system.

Judges, at least, do not rely upon popularity contests for their rulings.
 matchlessm
Joined: 11/11/2007
Msg: 800
Prop 8 Passed
Posted: 11/10/2008 1:31:05 AM
amusinglisa,

One small problem with your library analogy--you have only one person being denied rights. No law could single out an individual for different treatment. A measure's not a "law" if it doesn't apply pretty evenly, let alone if it's arbitrary. But that doesn't mean laws have to treat everyone exactly the same.

I can't tell if you think the law protects "civil rights" or "liberties" more than it does, or if you're talking about what the law SHOULD do. A lot of laws strike people as unfair. A state doesn't have to allow anyone ever convicted of a felony to vote. But these people have already served their sentences--how is that fair? Through the income tax, the United States can force us to work so many hours each week for free, so it can give the money we earned to total strangers to spend any way they like. Fair? After all, if any one of these end users took his share straight from your wallet, it would be a crime. The Thirteenth Amendment, which ended slavery, clearly authorizes chain gangs. Isn't that barbaric? And the Court held in Kelo that you can be forced to sell your house to make way for a private development, if your city shows that will generate more revenue. You like living there? Too bad.

I doubt that 59 years after Plessy v. Ferguson, "the general population" thought "separate but equal" was OK. By the early 1950's, that was probably still true only in the deep South. My family in L.A. was pretty typical, and I know that they and their friends felt, even long before that time, that segregation was a disgrace.
 amusinglisa
Joined: 5/4/2008
Msg: 801
Prop 8 Passed
Posted: 11/10/2008 7:32:35 AM

One small problem with your library analogy--you have only one person being denied rights. No law could single out an individual for different treatment. A measure's not a "law" if it doesn't apply pretty evenly, let alone if it's arbitrary. But that doesn't mean laws have to treat everyone exactly the same.



OK. If you need to mince hairs, make it a whole school districts' student body voting to keep all kids that read more than one sci fi book a week out of the school libraries. It's just an analogy. My point is that a popular vote does not make an issue "right".

My point is that a popular vote might indicate the feelings of a population (and it could be argued as an indication of the success of an ad campaign employing half truths and PR spins ) but it does not employ the weighing of what is or is not an application of justice.

Desegregation was not accomplished by a popular vote, rather, it was concluded by the courts that unequal treatment on the basis of race or national origin is unconstitutional and unfair. It is entirely possible that some community somewhere could come up with a majority vote to reinstate segregation. They might even get it voted as an amendment to their constitution. Would that make it "right" because "the people have spoken"?
 AceOfSpace
Joined: 5/28/2007
Msg: 803
Prop 8 Passed
Posted: 11/10/2008 9:11:49 AM
Sock,

I agree with your analysis of the issue. It is a matter of the will of the majority vs. the role of the courts in interpreting what laws are constitutional.

I believe it is the role of the courts to strike down laws that violate individual rights, and that it was an abuse of the initiative process to enact such a discriminatory amendment. As a result, I now favor a supermajority for initiative amendments. Through scare tactics and appeals to bigotry, it was entirely too easy to get that amendment passed. What if someone were to come along later and stir up hatred against Jews, or want to pass an amendment that allowed discrimination in employment and housing on the basis of marital status?

The courts are the check and balance against tyranny by the majority. Are they not?

The majority rules right up to the point where an individuals rights are violated. At that point, I want the courts to step in. I also want the courts to apply logic, evidence, and compassion when competing rights are involved. There is no operational logic in defining marriage as between a man and a woman only. There is only religious tradition. There is no evidence of harm to anyone caused by allowing gays to marry. And, there is no compassion in prohibiting them from doing so. Is there?

So, whether you believe that this was a political maneuver or not, the fact is that the courts did their job properly, by all of the criteria that matter, when they ruled in favor of allowing gay marriage . And when the courts do their job, the majority needs to listen--if the majority wants its own rights protected in future that is.

Prop 8 set a very bad precedent.

 matchlessm
Joined: 11/11/2007
Msg: 806
Prop 8 Passed
Posted: 11/10/2008 10:13:52 AM
No, and it wouldn't make it legal, either. We know the 14th Am. makes race a protected category. And the supremacy clause of the U.S.C. makes it higher law than any state law or state constitution. So, a state law or amendment to reinstate segregation would go nowhere.

The Court has found the 14th Am. also requires state laws to extend equal protection to "immutable" characteristics other than race, e.g. birth legitimacy and (as you note) national origin. (That does NOT mean a state law absolutely cannot discriminate on any of those grounds--it means the state would have to prove the law was "necessary" to achieve some "compelling" government purpose, and that there was no less burdensome way to achieve it.)

And the S.C.U.S. has never extended the same level of protection to discrimination by age, sex, or sexual preference as to race discrimination. It's debatable how far the 14th Amendment, whose purpose was to prevent states from discriminating against blacks, should be extended to prevent state laws from discriminating on other grounds.

The initiative process is legislation by direct popular vote. Any legislature is at least as subject to influence by lobbyists and their contributions--the whole purpose for introducing the inititative was to avoid all that. So I assume you wouldn't have trusted the California legislature to produce a more fair result.

And yet you seem to trust the courts to ensure fairness. I wonder if what we get isn't too often just the personal views of several judges about how we all should live, and the law be damned. Too tyrannical for my taste. And remember, it was the same Supreme Court, in Plessy v. Ferguson, that authorized Jim Crow justice.
 AceOfSpace
Joined: 5/28/2007
Msg: 809
Prop 8 Passed
Posted: 11/10/2008 12:11:13 PM
... it means the state would have to prove the law was "necessary" to achieve some "compelling" government purpose, and that there was no less burdensome way to achieve it.)


Exactly. If the "sanctity of marriage" folks can define a purpose for legal marriage, that is, that bundle of rights and obligations that legal marriage confers, in operational terms that homosexual couples cannot fulfill, I would have no problem with Prop 8.

However, legal marriage is not limited to procreation, it is about love and forming stable families. Nothing prevents homosexual couples from loving each other and forming stable families except an arbitrary law. Being a family has as much to do with mutual care and spousal inheritance as it does with procreation--as does legal marriage. Thus, there is no compelling state interest in limiting marriage to heterosexual couples. For purposes of the law, procreation is no more or no less vital than guardianship of an incapacitated spouse. I can say that because that is how the law works now for all couples who are married.

If marriage is about forming families, it is only a narrowminded view that would deny recognition of a desire to form a legally recognized family to others whose difference is only in their choice of partners.
 AceOfSpace
Joined: 5/28/2007
Msg: 810
Prop 8 Passed
Posted: 11/10/2008 12:22:18 PM

And yet you seem to trust the courts to ensure fairness. I wonder if what we get isn't too often just the personal views of several judges about how we all should live, and the law be damned. Too tyrannical for my taste.


When the court rules in such a way as to deny someone their rights, I will support the effort to correct that error through legislation. However, the trajectory of court precedents seems to head in the direction of extending the recognition of individual rights upon reflection based on logic and evidence. I can't say much about compassion. They are slow, sometimes, but eventually they get there.

What was tyrannical about Brown v. Board of Education, Roe v. Wade, or the California Supreme Court's decision to allow gay marriages? Yes, those decisions compelled a lot of changes. But where those changes tyranny? Or were they required to put an end to prior manifestations of tyranny?

Even though the courts are not perfect, they at least have to pay lip service to logic and evidence when ruling on constitutional measures. Elected officials only have to be persuasive. That is also true of initiative backers.

Seems to me that Prop 8 was a step toward tyranny by popular vote.
 amusinglisa
Joined: 5/4/2008
Msg: 811
Prop 8 Passed
Posted: 11/10/2008 12:31:18 PM
first, may I say that I appreciate that this thread has become more of a rational discussion and less of a heated argument. Thank you all for taking the time to read one another's posts and give thoughtful responses.

<div class="quote">The [US Supreme] Court has found the 14th Am. also requires state laws to extend equal protection to "immutable" characteristics other than race, e.g. birth legitimacy and (as you note) national origin. (That does NOT mean a state law absolutely cannot discriminate on any of those grounds--it means the state would have to prove the law was "necessary" to achieve some "compelling" government purpose, and that there was no less burdensome way to achieve it.)

Let's be clear that the California Supreme Court has already ruled that denying same sex marriage is unconstitutional. Chief Justice Ronald M. George wrote for the majority opinion:

“In view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

and

"Retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetrating a more general premise -- now emphatically rejected by this state -- that gay individuals and same-sex couples are in some respect 'second-class citizens,"

as well as:


"Our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation. An individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis upon which to deny or withhold legal rights."

It's a 120+ page document and it does pretty much cover all the issues you bring up that might be a saving grace (??) for Prop 8.

I suppose my question is whether you would rather trust people educated in and practicing the application of the principles of justice or trust the process of well-financed special interests using whatever advertising tactics they may see fit to influence the average voter to pass any initiative - regaurdless of the cost to the state to uphold, defend or test the motion - to ensure that justice is served?
 joanie23
Joined: 6/15/2006
Msg: 813
Prop 8
Posted: 11/10/2008 6:53:57 PM
I don't think there is anything wrong with gay people getting married. I don't understand why the government even cares.
 matchlessm
Joined: 11/11/2007
Msg: 816
Prop 8 Passed
Posted: 11/10/2008 9:17:55 PM
amusinglisa,

First, I support the First Amendment right of those "well-financed special interests," whether the Mormon Church, NARAL, the Sierra Club, or NAMBLA, to advance their political interests.

As for the California Court's Prop. 22 decision, I didn't study all 120+ pages--but I read it. One very important point: The Court was interpreting the California constitution, NOT the U.S.C. The S.C.U.S. ordinarily defers to state high courts as the final arbiters of their states' laws. But a state high court must make clear that it's interpreting its state's laws, and its decision must have an "independent" and "adequate" basis in those laws. If a state high court doesn't meet these requirements, the S.C.U.S. will determine whether that court's holding satisfies the U.S.C.

Here, the California court met all those requirements in finding that same-sex marriage is a fundamental right guaranteed by the California constitution. Not only did it extend the same degree of protection to sexual orientation and sex as to race, which the S.C.U.S. has never come close to doing, but it also seemed to say none of those characteristics can ever be a legitimate basis for any legal discrimination! As I said earlier, the S.C.U.S. has never held that even state laws which discriminate by race--always the most closely scrutinized category of all--automatically violate the 14th Am.'s equal protection guarantee.

That's why the Prop. 22 decision strikes me as overreaching, judicial fiat, ipse dixit, or whatever you want to call legislating from the bench. I didn't see where the court laid any foundation in reason, case law, history, etc. for its amazing finding that same-sex marriage is a "fundamental" right. I realize a lot of people see this steady expansion of rights to the favored minority du jour as a good thing, a continuing liberation--the courts bringing enlightenment to the benighted masses. But I see it as antidemocratic and dangerous for judges to create whatever rights they personally feel should exist. Legislatures should make law--partly because the people can easily vote them out. Judges--let alone Justices--are far less accountable.
 AceOfSpace
Joined: 5/28/2007
Msg: 818
Prop 8 Passed
Posted: 11/10/2008 9:22:37 PM
Hey PH,

I checked out that article and though it did point out that the names and indentifying information about Mormon donors were publicised on Daily Kos with the express intention of embarrassing those donors, there was nothing about an attempt to close down the Mormon Church.

There were protests in front of Mormon Churches, that's true. But that's part of the same freee speech right that the pro 8 folks want to benefit from. Isn't it?
 matchlessm
Joined: 11/11/2007
Msg: 819
Prop 8 Passed
Posted: 11/10/2008 9:56:41 PM
Ace,

The danger in those decisions--and a lot of others I could name--is that they tend to corrode the rule of law, and to legitimize the "rule of man." That comparison isn't mine, but something F.A. Hayek wrote a lot about in The Road to Serfdom. He cited the Third Reich to illustrate what happens under the completely arbitrary rule of man. Judge Bork has also pointed out, in Men in Black and elsewhere, specifically how he believes the S.C.U.S. has overreached--and drastically changed the way we live in the process.

By the way, anyone who sneers at Robert Bork is a dope. They didn't have him teaching Con Law at Yale all those years for no reason. (Bill and Hillary Clinton, of course, were so bright neither of them felt the need to attend his classes.) Judge Bork has every bit the intellectual depth, judgment, and legal knowledge of anyone now on the Court--including Justices Scalia and Breyer.
 amusinglisa
Joined: 5/4/2008
Msg: 820
Prop 8 Passed
Posted: 11/10/2008 10:08:44 PM

First, I support the First Amendment right of those "well-financed special interests," whether the Mormon Church, NARAL, the Sierra Club, or NAMBLA, to advance their political interests.


Neither do I UNLESS those political interests are taking away the rights of any one of our citizens OR those political interests are worded in such poorly-constructed ways that they wind up a waste of tax-payer money either defending the state against some "duh" lawsuit or just going through the inevitable court process.

It was pointed out in the sample ballot description that passing Prop 8 would cost the state (that is in a pretty poor financial state as it is) millions of dollars. That doesn't count as a clue that this could be a little problem?


Here, the California court met all those requirements in finding that same-sex marriage is a fundamental right guaranteed by the California constitution. Not only did it extend the same degree of protection to sexual orientation and sex as to race, which the S.C.U.S. has never come close to doing, but it also seemed to say none of those characteristics can ever be a legitimate basis for any legal discrimination! As I said earlier, the S.C.U.S. has never held that even state laws which discriminate by race--always the most closely scrutinized category of all--automatically violate the 14th Am.'s equal protection guarantee.


I'm not following you here. You seem to be complaining that the California Supreme Court did not interpret the US Constitutioin. I don't understand why that would come into the conversation. I am also uncertain why there would be any issue with the US Supreme court's position whether or not state laws violate the 14th amendment has anything at all to do with the California supreme court finding that discrimination on the basis of sexual orientation in the case of marriage is unconstitutional under the California constitution. Could you please explain?
 amusinglisa
Joined: 5/4/2008
Msg: 821
Prop 8 Passed
Posted: 11/10/2008 10:21:11 PM
Keith Olberman of MSNBC made a statement about this on 11/10/08

http://www.youtube.com/watch?v=Y04wYfgWxeA
 matchlessm
Joined: 11/11/2007
Msg: 824
Prop 8 Passed
Posted: 11/11/2008 9:34:13 AM
amusinglisa,

Speech that directly takes away someone else's rights has been controlled for centuries by criminal and/or civil laws against fraud, misrepresentation, slander, libel, etc. A speaker in the political arena (e.g. an interest group) intends its speech to advance its interests--often at the expense of someone else's. So what? That's how democracies work.

You seem to think the freedom of speech guarantee applies unless someone (who, you don't say) thinks someone else's statement is misleading, or will cost the government. It's true the First Amendment doesn't protect commercial speech that's truly misleading. But that's not a legitimate reason for government to infringe political speech, and neither is its cost. Wording propositions so they sound wonderful is the rule, not the exception--and they often cost a lot to implement.

I wouldn't say I was complaining about anything. I'm certain the California court, somewhere in those 120 pages, made very clear it was interpreting the state constitution. I explained what causes the S.C.U.S. to second-guess a state's highest court, and I doubt it applies in this case.

I brought up the S.C.U.S.'s equal protection doctrine to support my criticism of the California court's decision as judicial fiat. I was pointing out just how far beyond that doctrine the court has now extended California's equal protection law. If the equal protection guarantees in the California constitution and the 14th Am. used much different wording, or if the California provision had an independent history that began before the 14th Am., that would be easier to understand. I doubt there's much legal precedent for the holding, and as I said, I couldn't see that the court explained its reasoning.

I suspect a lot of people thought the decision was sort of arbitrary, and some of them decided to try to avoid it through an initiative.
I'm not opposed to same-sex marriage--but anyone who's concerned with personal liberties should consider how courts undermine the rule of law when they assume too big a role in making it.
 amusinglisa
Joined: 5/4/2008
Msg: 825
Prop 8 Passed
Posted: 11/11/2008 11:35:56 AM

The fat lady hasn't sung yet...


Well, she hummed "We Shall Overcome" a little...
 amusinglisa
Joined: 5/4/2008
Msg: 826
Prop 8 Passed
Posted: 11/11/2008 12:10:46 PM

First, I support the First Amendment right of those "well-financed special interests," whether the Mormon Church, NARAL, the Sierra Club, or NAMBLA, to advance their political interests.


Neither do I UNLESS those political interests are taking away the rights of any one of our citizens OR those political interests are worded in such poorly-constructed ways that they wind up a waste of tax-payer money either defending the state against some "duh" lawsuit or just going through the inevitable court process.


I don't know how you got from the above to an objection to free speech. You seem to want me to be legally specific when I am merely complaining about underhanded ads that are not held to any "truth in advertising" sorts of regulation. Be that as it may. I suppose I am also against free speech if someone tells my kids that voting for free cigarettes in schools will make them look cool... I was thinking I was commenting more about misleading ads.


It's true the First Amendment doesn't protect commercial speech that's truly misleading. But that's not a legitimate reason for government to infringe political speech, and neither is its cost.Wording propositions so they sound wonderful is the rule, not the exception--and they often cost a lot to implement.


Which is why the state then has to spend ridiculous amounts of money to enforce or negate a poorly written proposition (do you need examples?). If someone got something passed that ultimately bankrupted the state just in the costs of implementing it, would you still be in favor of poorly written propositions?


I'm certain the California court, somewhere in those 120 pages, made very clear it was interpreting the state constitution


They did.


I explained what causes the S.C.U.S. to second-guess a state's highest court, and I doubt it applies in this case.


It does not.


I brought up the S.C.U.S.'s equal protection doctrine to support my criticism of the California court's decision as judicial fiat. I was pointing out just how far beyond that doctrine the court has now extended California's equal protection law. If the equal protection guarantees in the California constitution and the 14th Am. used much different wording, or if the California provision had an independent history that began before the 14th Am., that would be easier to understand. I doubt there's much legal precedent for the holding, and as I said, I couldn't see that the court explained its reasoning.


Nothing in the opinion has anything to do with the 14th amendment. There is no discussion of equal protection under the US constitution, only that the state constitution clearly does not allow people to be discriminated against against on the basis of sexual orientation.

Maybe you want to read the ruling?

You seem to be making an argument for the court overstepping into interpreting the US constitution, which it did not at all presume to do.
 AceOfSpace
Joined: 5/28/2007
Msg: 827
Prop 8 Passed
Posted: 11/11/2008 6:43:28 PM
The danger in those decisions--and a lot of others I could name--is that they tend to corrode the rule of law, and to legitimize the "rule of man." That comparison isn't mine, but something F.A. Hayek wrote a lot about in The Road to Serfdom. He cited the Third Reich to illustrate what happens under the completely arbitrary rule of man. Judge Bork has also pointed out, in Men in Black and elsewhere, specifically how he believes the S.C.U.S. has overreached--and drastically changed the way we live in the process.


I've heard this assertion a lot, but I have yet to see any corroborating evidence. On what do you base this claim? Please don't refer me off to some obscure article that just reasserts it, also without evidence. I want to know what damage you have observed as a result of the Supreme Court interpreting the Constitution in favor of civil rights.


By the way, anyone who sneers at Robert Bork is a dope. They didn't have him teaching Con Law at Yale all those years for no reason. (Bill and Hillary Clinton, of course, were so bright neither of them felt the need to attend his classes.) Judge Bork has every bit the intellectual depth, judgment, and legal knowledge of anyone now on the Court--including Justices Scalia and Breyer.


We had this conversation already and I see no reason to revisit it. I think Judge Bork is in exactly the right spot. I don't know enough about Breyer to comment on his abilities, but I have little regard for Scalia. I see him as someone who puts a Conservative agenda ahead of the Founders intentions. I will grant you that he is clever, though. However, I really get tired of the "activist judges" cant on the part of Conservatives. When a decision goes against a conservative agenda it's "judges legislating from the bench." When it favors such an agenda at the expense of civil rights, well then, they of course got it right. Nonsense.

I am not that shallow and not that partisan. Of course we live differently because judges make landmark decisions that legislatures cannot make. However, the decision I find most outrageous is the recent eminent domain decision that allows a government to seize private property if a new private land use would generate more taxe revenue. I'm sorry, property owners have _rights._ I don't agree that owners have the right to pollute or destroy irreplaceable resources, but shy of some due cause or public necessity, governments should not have the power to arbitrarily seize property!

So cite me some evidence of a civil rights ruling leads to Serfdom or admit that you don't have any.
 AceOfSpace
Joined: 5/28/2007
Msg: 828
Prop 8 Passed
Posted: 11/11/2008 6:47:25 PM
I'm not opposed to same-sex marriage--but anyone who's concerned with personal liberties should consider how courts undermine the rule of law when they assume too big a role in making it.


Show me the connection between extending equal protection rights to an obviously oppressed minority and how the courts infringe on personal liberties.

Which liberties? The ones that would allow people to go on discriminating against gays?

You really have to back up this assertion with some line of reasoning that goes from cause to effect or else you're just spewing scary words. I think you know better than that, so let's hear the reasoning behind your claim.
 matchlessm
Joined: 11/11/2007
Msg: 829
Prop 8 Passed
Posted: 11/12/2008 2:34:09 AM
amusinglisa,

For purposes of the First Amendment, advocacy and political contributions are "speech." Other examples of political speech--some protected by the 1st Am. and others not--are burning a cross on a black family's lawn, nude dancing, entering a courthouse wearing a shirt with "F--- the draft" on it, and burning the American flag.

In the statement you quoted, you pointed to three negative effects of political speech that you think justify some restriction on it. By saying that, you raised the issue of free speech yourself. You WERE talking about misleading ads--but political ads are political speech, and as such they are much more closely protected by the free speech clause than ads for commercial products.

I'm not in favor of writing ANYTHING poorly. But what I favor or don't favor is irrelevant. If the people in their wisdom see fit to pass extremely expensive laws by initiative, who, exactly, has the right to tell them they can't? Even this year, with California barely able to meet the financial obligations it already has, voters passed measures that will cost billions.

I don't understand why you ask if I might want to read the case. I've already said (I believe in two different posts) that I read it, while acknowledging that I hadn't taken the many hours needed to analyze it in great detail. If you have, maybe you can educate me. I've already acknowledged (you just quoted me saying so!) that the court grounded its decision in the California constitution's equal protection provision. So why would you think I was arguing that it interpreted the U.S.C. instead??

In a sense, the 14th Am. is always involved in an equal protection case, even if a state court grounded its decision in its state constitution. The 14th Am.'s whole purpose was to prevent the states from wrongly discriminating against blacks. State constitutions only address equal protection at all because there IS a 14th Amendment; the state provisions followed it, and they usually follow its wording pretty closely. So there's no obvious reason why any state should interpret equal protection under its constitution much differently than the S.C.U.S. interprets it under the U.S.C.

These are the things I had in mind when I discussed the S.C.U.S.'s equal protection doctrine. I've read enough about its expansion from race to other categories like voting to know that many legal scholars question whether the 14th Am. authorizes such a broad reading. The same question would seem to apply to state equal protection provisions.

Sure, you can always fall back on the California court's right to interpret California's constitution. But the farther it extends that constitution's equal protection guarantee, the less convincing it becomes. Calling more and more rights "fundamental," without offering sound reasons why, won't convince most people that they are. Why shouldn't, say, college education be a fundamental right? And if so, out of all the people who want to enroll at Berkeley, why should California let in only the ones whose grades and test scores are above a certain level? What can justify depriving all the other prospective Berkeley students of such a fundamental right? Isn't that just telling them to go to the rear of the bus?

Mike
 AceOfSpace
Joined: 5/28/2007
Msg: 830
Prop 8 Passed
Posted: 11/12/2008 10:24:16 AM
And the SOUND reasons for denying these rights, whether "fundamental" or not? When are we going to hear those? When there is no reason to deny those rights, they become fundamental.


Exactly. Neither an increase in tax revenue, nor the comfortable numbness of religiosity, is a sound reason for denying full RECOGNITION of civil rights. We aren't talking about extending a right to those who don't have it. THEY HAVE IT!!!!
We are talking about legally, finally, once-and-for-all R E C O G N I Z I N G the RIGHT THAT THEY ALREADY HAVE BY VIRTUE OF BEING HUMAN!!!!!!

If you want to claim the right to marry the partner OF YOUR CHOICE for yourself, you cannot deny someone else the right to claim the partner of HER OR HIS CHOICE.

It really is a simple as that, now isn't it?
 amusinglisa
Joined: 5/4/2008
Msg: 831
Prop 8 Passed
Posted: 11/12/2008 11:08:49 AM
^^^

Where to begin?

First, sorry to vent about people being unwise with our tax dollars. Go ahead everyone. It's OK to bankrupt our state even if you live somewhere else. First amendment trumps common sense and it seems that I have no business complaining about it.

Can we get off the free speech thing? I will do my best not to complain too much about how someone running a misleading - BUT FIRST AMENDMENT PROTECTED - campaign is going to wind up costing us millions. I guess that goes along with having a free society.

Can we also get off the 14th amendment?

If the California Supreme Court (and I have to say that your abbreviations make reading your posts difficult for me -- although it is within your first amendment rights to do so) interprets the California Constitution as providing equal protection under the law, why do you feel that is an issue? Are you saying that if NOrth Carolina (just to come up with a name, not that North Carolina is involved in any such thing) decides it's OK to keep kids that read more than one sci fi book a week out of school libraries because they are not a group specifically recognized by the state constitution and a popular vote made it a law, would the North Carolina supreme court be overstepping to say that not allowing those kids access to something that represents community and social as well as academic advantages (while making clear that offering the community library is NOT the same thing)?

I have young kids. I can go around for 7.5 hours telling them all the things that it is not OK to do. That is never nearly as helpful as telling them what IS OK (our two rules are "be safe" and "have fun"). The California Supreme court has seen fit to interpret the California constitution as protecting the rights of all its citizens regaurdless of their sexual orientation. That probably means that they will make decisions that interpret the California constitution as protecting the rights of all its citizens regaurdless of their DNA profile or something that may come up in 2030 that we have not heard of yet. Will that be overreaching, too? Would you feel differently if you were in a group that could be fired because of your gene pool? I mean, the state constitution does not specify that you are protected regaurdless of your genetic make-up. Neither does the 14th amendment for that matter...

Homosexuality was not spoken about until very recently -- I believe the trial of Oscar Wilde was the first public discussion in 1895. The Stonewall riots took place in 1969 and that was all about people needing to go about their lives without being arrested. This was not something that the authors of the 14th amendment could forsee. Fortunately, they didn't word the amendment to specifically protect any one (or five) group(s) of people, saying only:

" 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."

Matchless, you want to get into the minutia of every detail of what gets posted, I am looking at the big picture. my question is: Do you think that the groups that are protected by the 14th amendment need to be singled out individually?
 matchlessm
Joined: 11/11/2007
Msg: 832
Prop 8 Passed
Posted: 11/12/2008 1:32:33 PM
Ace,

No, I don't think it is that simple. If the fact we're human is enough to make one right fundamental, why shouldn't the law recognize all our rights as fundamental? It seems to me there has to be some further standard for determining which are and which are not. I think you're doing what the California court did--just asserting that same-sex marriage is a fundamental right, and therefore any government measure that infringes it automatically violates the equal protection guarantee. (At least that's how I read the holding.) But assertions are not arguments, no matter how loudly they're shouted.

How far, and for what reasons, courts should extend equal protection beyond race-based discrimination against blacks (the "original understanding" of the 14th Am.) is a very complex issue. Anyone who wades through even a small part of the literature on it will have no doubt about that. Just one of several reasons the question's difficult is that it's normal for laws to discriminate (in the sense of "differentiate") between one set of people and another. They create winners and losers--tax laws are an obvious example. The trick is to decide when, and why, it's unfair of a particular law to do that.

Of course the California court wasn't interpreting the 14th Am. And the court can interpret the California constitution to extend its equal protection guarantee to some groups, at least, that the 14th Am. doesn't cover. Obviously, as long as the decision remains good law, everyone within the court's jurisdiction must obey it. But that doesn't mean I have to buy its reasoning (or lack of it), any more than I have to buy the reasoning behind some godawful decision (Boumedienne is a good example) just because the Supreme Court of the U.S. handed it down.

It's still an open question whether the people of California can amend their constitution, or must revise it, to avoid extending its equal protection guarantee to same-sex couples who want to marry here. It also hasn't been settled whether they can use an initiative to limit the equal protection guarantee as Prop. 8 did.
 AceOfSpace
Joined: 5/28/2007
Msg: 833
Prop 8 Passed
Posted: 11/12/2008 1:55:12 PM

No, I don't think it is that simple. If the fact we're human is enough to make one right fundamental, why shouldn't the law recognize all our rights as fundamental?


I'm actually shocked to hear you say that. The law should. And in many cases it does. Take for instance, free speech. You can say anything you want to, anywhere, with as much force as you can put behind it, so long as you don't infringe upon the rights of another person by doing so.

However, when a law fails to recognize a right, which should yield? A particular law or the right? You didn't mean to imply the latter, did you?

Unlike rights, laws were not handed down by God, as you know. They develop as our collective understanding develops. In our legal system, as you well know, the legitimacy of the law is in its function, not its provenance. And that legitimacy derives from its role in protecting individual rights from undue infringement by: A) the government, and B) other people. So, when we eventually figure out that a law has failed to function properly in protecting a fundamental right, we must recognize that the law is simply in error. And it is up to us to correct that error, however uncomfortable or inconvenient the remedy might be.

What part of that last paragraph do you disagree with?

When a law is recognized as infringing on a right, the burden of proof to show how and why that law fulfills a compelling state interest either by A or B above. My assertion is the same assertion that the California Supreme Court made, if I understand it correctly. And that is that equal protection applies. If person X and person Y choose to marry each other but aren't able to procreate for any reason, the law allows it. So, if person Q and person P choose to marry each other, how can the law legitimately exclude them just because they cannot procreate?

You do not mean to tell me that tradition trumps our equal protection rights, do you? Because near as I can tell, all of you fancy dancing boils down to that argument.

But maybe I'm misunderstanding you. If that isn't your argument, what is your argument--boiled down to a simple declarative statement that an ordinary person can understand?

Mine is that equal protection applies because there is no operational difference between one infertile couple who can legally marry and another who cannot.
Show ALL Forums  > California  >