Think you thinkCA will NOW pass gay marriage law?

[bobo998]

The state has to now that NY has.

 

[topdog]

California doesn't have to pass a gay marriage law - the courts have already made it legal. As a matter of fact there are over 11,000 married same sex couples in the state. The current obstacle is Prop 8, which has already been declared unconstitutional by the federal district court. It is currently under appeal, probably until early next year.

The appeal is probably going to fail, which means that Prop 8 will be struck down and gay marriage will again be legal in California. The only real question is whether it will be struck down on the merits of the case (that you can't make laws that treat straight people differently than gay people), or on a technicality (that the Prop 8 defenders can't appeal because they weren't the party being sued).

If it is struck down on the merits, then it becomes a precedent that other cases can site when challenging anti gay marriage laws. If they rule on the technicality, then it's just a one off decision and will leave the constitutional question to be decided elsewhere.

 

[Behrluvr]

California doesn't have to pass a gay marriage law - the courts have already made it legal. As a matter of fact there are over 11,000 married same sex couples in the state. The current obstacle is Prop 8, which has already been declared unconstitutional by the federal district court. It is currently under appeal, probably until early next year.

The thing is an overwhelming majority of voters approved Prop 8. If we are going to live in a democracy, then the people have spoken in California - they do not want gay marriage legalized. Its hard for me to understand how a judge or court can come in and overturn a legal vote by a majority of millions of citizens.

One might not like it, but that majority vote has strong meaning. IMO it is not something to be overturned because a judge doesn't like it. Why even bother voting? If a judge can simply toss the vote out, you are wasting your time.

 

[hawtsean]

The thing is an overwhelming majority of voters approved Prop 8. If we are going to live in a democracy, then the people have spoken in California - they do not want gay marriage legalized. Its hard for me to understand how a judge or court can come in and overturn a legal vote by a majority of millions of citizens.

One might not like it, but that majority vote has strong meaning. IMO it is not something to be overturned because a judge doesn't like it. Why even bother voting? If a judge can simply toss the vote out, you are wasting your time.

I agree in principle, but then we must take into account the actual constitutional legitimacy and validity of any proposition or law or regulation. If it's outside the bounds of constitutional protection to begin with, then no majority of any number is legal - and that law (or whatever) should be struck down.

The danger in assuming that a majority is always right, can be extended to an imaginary situation......the majority of voters in your state vote that you are unworthy of living and they want to put you to death -even though you have committed no crime or offense of any kind. Even if such a law were voted upon, it's unconstitutional and illegal from the get go, and would be struck down upon judicial review. Drastic and unreal example but the same logic.

If some ideal is so important to the nation as a whole, then it needs to be formulated and voted upon as a constitutional amendment. There are lots of those already.

 

[xenos]

It all came down to money. There are a lot of wealth queers in NY who are not going to donate to politicians who voted no. None the less, Hooray for New York and Gov. Cuomo.

 

[topdog]

The thing is an overwhelming majority of voters approved Prop 8. If we are going to live in a democracy, then the people have spoken in California - they do not want gay marriage legalized. Its hard for me to understand how a judge or court can come in and overturn a legal vote by a majority of millions of citizens...

I agree in principle, but then we must take into account the actual constitutional legitimacy and validity of any proposition or law or regulation. If it's outside the bounds of constitutional protection to begin with, then no majority of any number is legal - and that law (or whatever) should be struck down...

These are both good points. We live in a republic where we vote for representitives and they make our laws. But some states like California have direct propositions put to a popular vote which is about as democratic a process as you can get.

However, once passed the proposition becomes a law, and there is no difference between a law enacted by proposition and a law enacted by the legislature. A state law is a state law.

Still, as hawtsean said, the highest law in the land (speaking of the U.S.) is the constitution. A state cannot enact a law that contradicts the constitution. That's where the conflict comes in. It's not a judge that's overruling the people, it's the constitution. The judge is just the process we have put in place so a citizen can challenge a law in court if they think it is at odds with highest law that binds the US together as a nation. (Without the constitution every state would be soverign and could enact whatever laws they wanted.)

So, can the Federal Government force a state to conform to the constitution? We fought a war over that very question. The answer is yes it can.

• It did when Presidients Eisenhower and Kennedy sent federal troops to enforce school integration.
• It did when the Supreme Court told Texas that sodomy laws were illegal.
• In 1992 Colorado voters passed a propostion that repealed all anti-discrimination laws against gays. It actually made it against the law to even propose anti-discrimination laws based on sexual orientation. The Supreme Court overturned it because it took away the constitutional rights of equal protection, free speech, and the right to petition the government.

In short, in the US if there is a conflict between the will of the people and the constitution, the constitution wins.

Actually, if I were still a California citizen I would be much more upset about the fact that the State refused to appeal the court decision that overturned Prop 8. The proponents of Prop 8 have stepped in to appeal the decision since the governer refused to do so. The whole question might be decided by that very technicality. The Prop 8 supporters are not the State of California and cannot represent the state in federal appeals court. It would be sad if it came down to that, but it would be a way for the for the circuit court to punt the whole issue.

 

[ritsuka]

It all came down to money.

It wasn't just wealthy queers in New York--it was, in fact, straight, conservative billionaires with gay relatives that spent a lot of money lobbying the republicans into voting in favor that finally pushed the movement forward.

But having said that, it all came down to money in California too, with the mormon church illegally funding prop 8 and spreading misinformation on what the vote was actually about. It won by a very slim margin--only 52% of voters approved of prop 8 (which is hardly "overwhelming", as only a small change would have tipped it in the other direction) and it was both unconstitutional and unethical. An ethnic, racial, or cultural majority should not have the ability to vote on whether a minority has equal rights; it should be forced into existence by forward-thinking courts. If straight people don't want gay marriage, they are perfectly free not to have one. I'm very confident and glad that the courts will reinstate gay marriage in California.