California Supreme Court to issue Prop. 8 decision today

[ulmont]

The court backtracking and deciding that a previous session was wrong is not without precedent. In Plessy v. Ferguson, the Supreme Court decided that segregation did not violate the 14th Amendment. in 1954, the USSC overturned its own decision and decided that racial segregation was a violation of the 14th Amendment.

Also, Lawrence v. Texas directly overruled Bowers v. Hardwick.

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

[DontSayBanana]

Sure. And evenn in California, the court which had held the death penalty to be a violation of fundamental human rights later acknowledged that, thanks to a referendum, it was now constitutional. I think the Court, mindful of precedent, will not go so far and reverse say its previous decision is wrong, but we'll see.

Apples and oranges. As I see it, the argument was simply that it was unconstitutional, not a violation of fundamental human rights, and even after reenacting the death penalty, they still modified it to be as humane as possible (gas chamber was banned after the law was reinstated and now lethal injection is the sole method of execution).

Anyway, the expectation for today is that the court's going to uphold the ban, but validate marriages performed before the law took effect.

[DontSayBanana]

Also, Lawrence v. Texas directly overruled Bowers v. Hardwick.

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

Aha. Thanks for giving a state court precedent.

[Berkut]

You guys don't read so good.

The court is not going to strike down any legislation, since this isn't legislation, it is an amendment to the Constitution. You cannot strike down a COnstitutional Amendment as un-Constitutional. Duh.

[Grey Fox]

You guys don't read so good.

The court is not going to strike down any legislation, since this isn't legislation, it is an amendment to the Constitution. You cannot strike down a COnstitutional Amendment as un-Constitutional. Duh.

Thank you. I was starting to be confused.

[DontSayBanana]

You guys don't read so good.

The court is not going to strike down any legislation, since this isn't legislation, it is an amendment to the Constitution. You cannot strike down a COnstitutional Amendment as un-Constitutional. Duh.

Actually, you can. If a state constitution is in conflict with the US Constitution, it is the state constitution that must be changed.

[Faeelin]

You guys don't read so good.

The court is not going to strike down any legislation, since this isn't legislation, it is an amendment to the Constitution. You cannot strike down a COnstitutional Amendment as un-Constitutional. Duh.

Sure , but two questions have arisen in the course of this.

1) Is this an amendment to the California Constituion, or a revision? For the reasons I mentioned beforehand, it'll be interesting to see if the Court explains why it's a revision, but we will see.

2) And as the CA Attorney General somewhat lamely argued, does the california constitution encompass certain rights that are so fundamental that they cannot be taken away? I can't see how the Court can agree to this, but we'll see.

[DontSayBanana]

Quick explanation for the Canucks:

We have two types of constitutions: state and federal. The legal view is that the state has authority to put anything into its constitution that is not assigned to the US government or in conflict with the federal constitution.

My argument against Prop. 8 is that gender equality is guaranteed by the US Constitution, so an amendment to the California constitution that conflicts with that is invalid.

[Berkut]

But that isn't an argument for the California State Supreme Court. And is a crappy argument anyway, since there is no way that argument is going to fly...yet.

[DontSayBanana]

But that isn't an argument for the California State Supreme Court. And is a crappy argument anyway, since there is no way that argument is going to fly...yet.

And how is it a "crappy argument?" The state decides whether or not to issue a legal document that helps determine dependency status based on the gender of the two participants. A homosexual breadwinner in California can only file their federal income taxes as "single" or "head of household." They do not qualify for "married filing jointly" or, and this is a stickier point, for "married filing separately."

Either the issuance of marriages is being used to reward couples with the "correct" gender spread, or it is being used to punish those with the "incorrect" spread. Either way, there is no quantitative definition being applied to marriage, so it is an improper application of law.

[Valmy]

Actually, you can. If a state constitution is in conflict with the US Constitution, it is the state constitution that must be changed.

Correct me if I am wrong but can a state supreme court make that decision?  It would seem to me the USSC would have to be the ones to strike down a state constitution.

[DontSayBanana]

Correct me if I am wrong but can a state supreme court make that decision?  It would seem to me the USSC would have to be the ones to strike down a state constitution.

Hmm... guess it would, since the case would be the State of California v. the State of California.

Either way, I think this is going to get taken to the top, and it's about bloody well time.

[Faeelin]

Either way, I think this is going to get taken to the top, and it's about bloody well time.

Incidentally, you were right.

Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term "marriage" for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of thelaws.

By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of "marriage" holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion's ultimate holding in the Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855. Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples'state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess We emphasize only that among the various constitutional protections recognized in the Marriage Cases as 8 available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure.

Okay, I'm still reading, but the court seems to be saying "We're not sure an amendment that takes away the right to civil unions would be an amendment and not a revision." Yet the Court in the original In Re Marriage said that the lack of the term marriage was significant enough to make civil unions constitutionally inadequate.

[garbon]

I like that we now have the weird situation where gay marriage isn't illegal but we still have gay people with marriage licenses.  Does that mean that California won't recognize said marriages / it'll just think of them as domestic partnerships?

To the streets! (where apparently people were already gathering when I left home this morning)

[garbon]

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/05/26/BAT817R2QD.DTL&tsp=1

Same-sex marriage ruling draws a crowd

It wasn't totally unexpected, but for advocates of same-sex marriage, the blow hurt nonetheless.

As word of the California Supreme Court's decision upholding Proposition 8 filtered through the crowd of pro-gay demonstrators outside the courthouse in San Francisco, shouts of "Shame on you!" erupted from many, while others hoisted their protest signs and shook them.

Still others hugged to mourn the moment. A look of resigned sadness pervaded the gathering of several hundred, while about a dozen counter-protesters looked on, holding pro-Prop. 8 signs and quietly proclaiming their appreciation of their court victory.

After a few minutes of grieving, a portion of the pro-same sex marriage crowd marched to Van Ness Avenue and blocked the busy thoroughfare at Grove Street, chanting slogans.

"This is a serious blow on religious freedom, and it opens the door for discrimination against any minority," said Rick Schlosser of Sacramento, executive director of the California Council for Churches, one of the lead plaintiffs in the case to overturn Prop. 8.

Like many, Schlosser said the ruling did not surprise him.

"Nobody I talked to seemed to think the court would go against what it thought was the will of the people," he said.

The court's simultaneous ruling upholding the 18,000 gay and lesbian marriages performed before Prop. 8 passed did little to salve the wounds of those who support same-sex unions.

"It seems not only astounding but unjust that a simple majority can write discrimination into the Constitution," Schlosser said.

Not everyone outside the court was upset. Yana Kulinich was with a group of students from American River College in Sacramento who drove in to support Prop. 8.

"I'm really happy that Prop. 8 was upheld, but I was just told by somebody that she's going to harass me until the day I die," Kulinich said. "Now I'm really concerned for my safety.

"I didn't expect that," she said. "I'm shaking right now."

Advocates on both sides of the issue began milling about in McAllister Street in Civic Center Plaza about 9 a.m., an hour before the court released its ruling. More than 100 pro-gay protesters marched from a church in the Castro to City Hall, arriving at 9:45 a.m. carrying flags, flowers and signs.

Dolores Caruthers, 54, and her girlfriend Laura Espinosa, 44, of Novato, were among the first to show up outside the court at 8 a.m.

"This day is important to us," Espinosa said. "I want equality."

Jorge Riley, 31, of Sacramento also got up early to make the drive to San Francisco to hoist his sign reading, " 'Gay' = Pervert."

"I don't know how many times it's going to take for the judges to listen to the will of the people," Riley said.

I'm glad that Ms. Kulinich feels threatened.