Thirty-four percent said the marriages should be annulled immediately. This is interesting because 34 percent is also roughly the percentage of California voters who are Republicans, and the percentage of Californians who approve of the job performance of Gov. Arnold Schwarzenegger.

Gotta love that 1/3 grouping!

The point of the matter is that you can't let majority votes on the rights of a minority.

It goes against everything this constitutional republic stands for. The entire vote should be annulled.

In other news, 8% of prop 8 supporters are complete a-holes.

I find it easier to forgive the manipulation of rights by people with strong convictions, but violation and revocation of other's rights done arbitrarily is just douchebaggery of the highest order.

absoluteparanoia: The point of the matter is that you can't let majority votes on the rights of a minority.

The federal courts should step in and over turn this amendment for two reasons.

1) It violates the 14th amendment:

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.

2) It is an example of the "Tyranny of the Majority", something that the framers of the Constitution were absolutely against (as expressed in Federalist Paper no 10

absoluteparanoia: The point of the matter is that you can't let majority votes on the rights of a minority.

It goes against everything this constitutional republic stands for. The entire vote should be annulled.

I don't really know so this is a sincere question: Don't they have to change the constitution for that? I thought I had heard that the way things stand the referendum route to enacting legislation is valid. Does there need to be a constitutional amendment preventing the curtailing of human rights from being decided by popular referendum? Or is this prop 8 already a violation of the constitution and a misuse of the referendum process?

Well I think you probably should have thought of that earlier guys -- either that or worked a little bit harder at convincing people that "NO" was the way to go.

Code_Archeologist: 14th

Well there's my answer.

But if I got it right, this is standing right now, because the argument is that marriage is a religious institution outside the purview of the state?

That seems like a laughably weak argument given the reality of the state's involvement in the institution, whether it's regarding taxes, property rights or other privileges dispensed by the state in realtion to marriage.

From what I understand, never has a provision of a state constitution been challenged and actually heard by the SCOTUS, so we are somewhat charting into unknown waters here.

KaponoFor3: Well I think you probably should have thought of that earlier guys -- either that or worked a little bit harder at convincing people that "NO" was the way to go.

Doesn't matter. Would a vote on criminalizing miscegenation be legal?

The 14th amendment exists for a reason.

Thorndyke Barnhard: But if I got it right, this is standing right now, because the argument is that marriage is a religious institution outside the purview of the state?

Marriage is a religious institution, but a license of marriage is a recognition by the state that confers a set of privileges, as such any state that specifically bans marriage of a group of people is acting in contravention of the 14th amendment to the Constitution.

There is no valid argument against that. And if Prop 8 goes to the Federal Supreme Court it will change the entire tenor of gay marriage through out the nation. Advocates against gay marriage know this and have been trying to keep the subject of gay marriage out of the courts for years... because they cannot win in the courts and they know this.

Hell, four percent probably thought they were voting Yes for gay marriage. Never underestimate the stupidity of the voting public.

absoluteparanoia: Would a vote on criminalizing miscegenation be legal?

Race based classifications and laws always have strict scrutiny on review -- the government has a higher level of proof to establish the necessity of their conduct. Sexual orientation is afforded the same protection in California, but not on the federal level. So it's clear that criminalizing miscegenation would be illegal.

BTW -- Prop 8 didn't criminalize gay marriage, so your analogy is highly flawed.

/Still think gov't needs to just recognize civil unions and leave "marriage" to the churches
//Voted "No" on 8
///Had to explain my vote to all of my co-workers
////Still respects the "Yes" on 8 people's votes

KaponoFor3: From what I understand, never has a provision of a state constitution been challenged and actually heard by the SCOTUS, so we are somewhat charting into unknown waters here.

I was under the impression that the California Supreme Court was first going to determine whether it was properly a constitutional "amendment" or whether it actually qualified as a "revision," the latter of which cannot be determined by referendum. If it was a revision, then I guess it's "suck it, oppressors."

Code_Archeologist: such any state that specifically bans marriage of a group of people is acting in contravention of the 14th amendment to the Constitution.

I don't think this is accurate insofar as it goes to homosexuals as they aren't a protected class at the federal level.

WaltzingMathilda: I was under the impression that the California Supreme Court was first going to determine whether it was properly a constitutional "amendment" or whether it actually qualified as a "revision," the latter of which cannot be determined by referendum. If it was a revision, then I guess it's "suck it, oppressors."

Yeah that's the exact issue they are faced with, but its total bullshiat IMO -- sour grapes on the part of the No on 8 crowd because they lost on the ballot box. I am curious if they understand that by immediately running to the courts, they are just feeding into the argument by the Yes on 8 people that because pro-gay marriage can't win the "hearts and minds" of the state's residents that they are forced to go and attempt to "force their viewpoint down people's throats" via the judicial branch.

KaponoFor3: BTW -- Prop 8 didn't criminalize gay marriage, so your analogy is highly flawed.

I know it wasn't made illegal, I was looking for the proper term but couldn't find it. The point is still valid even if the analogy is less-than-apt.

KaponoFor3: Still think gov't needs to just recognize civil unions and leave "marriage" to the churches

This is the root of the problem. The government (and anti-gay marriage crowd) are deliberately conflating the terms "marriage" and "civil union". One is recognized by the state and federal government, and one is recognized by religious institutions.

If the verbiage of the vote was changed, I firmly believe that the vote would have resulted in a landslide "no".

KaponoFor3: WaltzingMathilda: I was under the impression that the California Supreme Court was first going to determine whether it was properly a constitutional "amendment" or whether it actually qualified as a "revision," the latter of which cannot be determined by referendum. If it was a revision, then I guess it's "suck it, oppressors."

Yeah that's the exact issue they are faced with, but its total bullshiat IMO -- sour grapes on the part of the No on 8 crowd because they lost on the ballot box. I am curious if they understand that by immediately running to the courts, they are just feeding into the argument by the Yes on 8 people that because pro-gay marriage can't win the "hearts and minds" of the state's residents that they are forced to go and attempt to "force their viewpoint down people's throats" via the judicial branch.

Well, I guess it depends on whether it truly was a revision. If it was, then they need to follow the appropriate process. I can understand that you have a passionate opinion on the "hearts and minds" nature of a vote, but I would hope that you'd also have as much passion for respect of the constitutional process ... a process which is supposed to be influenced by justice, not emotion of the majority.

absoluteparanoia
The point of the matter is that you can't let majority votes on the rights of a minority.

It goes against everything this constitutional republic stands for. The entire vote should be annulled.

This. It's simply wrong that CA ever allowed a vote on it. I hope that if necessary they do find a way to take this case all the way to the SCOTUS.

Code_Archeologist: Advocates against gay marriage know this and have been trying to keep the subject of gay marriage out of the courts for years...

Actually does it really matter if they don't want it to go to court? Isn't it up to the victims to make this go to court? What are they waiting for, or rather, why haven't they been able too?

Another argument I've heard is that they are not being prevented from marrying just from marrying each other. While this is technically true it does entail a very real and substantive difference in the nature of marriage of heterosexual couples in a relationship characterized by both agape and eros love versus a pragmatic marriage between two homosexuals of opposite sex.

It just occured to me that the terms homosexual and heterosexual are confusing for many people who assume the "sexual" part refers to the act rather than the gender.

KaponoFor3: Code_Archeologist: such any state that specifically bans marriage of a group of people is acting in contravention of the 14th amendment to the Constitution.

I don't think this is accurate insofar as it goes to homosexuals as they aren't a protected class at the federal level.

It doesn't matter if they are a protected class. The 14th amendment doesn't have any clause about equal protection applying only to protected classes. It's about the state treating every citizen equally. If the state sanctions a union between a man and a woman--then it must also sanction a union between a man and a man. Incidentally, gender *is* a protected class. The state cannot discriminate in that way.

In addition, protected classes are almost universally used in workplace discrimination cases and do not apply across the board.

For example: I could refuse to let gays, women, and blacks into my home. Perfectly legal. Even if they are a protected class.

patrick767: absoluteparanoia
The point of the matter is that you can't let majority votes on the rights of a minority.

It goes against everything this constitutional republic stands for. The entire vote should be annulled.

This. It's simply wrong that CA ever allowed a vote on it. I hope that if necessary they do find a way to take this case all the way to the SCOTUS.

The referendum process has no right or wrong. Don't blame the referendum process. The States should still have the right to make laws and create their own constitutions. It's up to the CA Sup. Ct. now to determine if the wrong process was used. Once that is all out of the way, if gays still can't get married, then the SCOTUS should step in. Don't let your passions on one issue make you think the whole process should be changed.

absoluteparanoia: If the verbiage of the vote was changed, I firmly believe that the vote would have resulted in a landslide "no".

I agree -- but that's essentially what this whole issue is about -- language and the social acceptance that comes with it. It's not enough for gay rights advocates to have the same package of rights, because if they did they would be happy with civil unions. Instead, they want their same-sex relationships to be recognized, on both a social and legal level, as being equal to opposite-sex relationships.

And both sides will fight to the death and to the very end on this issue of language.

WaltzingMathilda: I can understand that you have a passionate opinion on the "hearts and minds" nature of a vote, but I would hope that you'd also have as much passion for respect of the constitutional process ... a process which is supposed to be influenced by justice, not emotion of the majority.

Of course I do -- I'm an officer of the Court -- but I just think the appeal, while there may be legal merit to it, is being brought not because the opponents truly believe it was a revision, but rather because they think this is the mechanism that can get them what they want. It's not idealistic, but its realistic. Happens at all levels of the judiciary -- attorneys have to argue what they think will win, not what they actually believe to necessarily be true.

patrick767: This. It's simply wrong that CA ever allowed a vote on it. I hope that if necessary they do find a way to take this case all the way to the SCOTUS.

If there is one piece of silver lining here is that if it makes it to SCOTUS, then it could very well overturn the gay marriage ban in *every* state. Which would have the anti-rights movement shiatting themselves.

absoluteparanoia: It doesn't matter if they are a protected class. The 14th amendment doesn't have any clause about equal protection applying only to protected classes. It's about the state treating every citizen equally.

States can discriminate between citizens so long as they don't discriminate based on a protected classification. In fact, they sometimes can even discriminate based on a protected classification if they have a good enough reason (age and police officers, for example).

absoluteparanoia: If the state sanctions a union between a man and a woman--then it must also sanction a union between a man and a man.

California does -- it just calls them something different despite granting them almost 100% of the same legal rights (at least, according to the CA Supreme Court opinion).

KaponoFor3: It's not enough for gay rights advocates to have the same package of rights, because if they did they would be happy with civil unions.

They *are* happy with civil unions. I don't know why you're assuming otherwise. There are already thousands and thousands of churches that will marry gay couples. It's a churches right to define marriage as it pleases.

These married gay couples wear rings, they share homes, and are committed to each other; however, they are not recognized as a union by the state. If you asked them--they would tell you they are married.

The fight shouldn't be about language. The state has no right to force the church to do anything in the same way that the church has no right to tell the state to ban something.

KaponoFor3: Of course I do -- I'm an officer of the Court -- but I just think the appeal, while there may be legal merit to it, is being brought not because the opponents truly believe it was a revision, but rather because they think this is the mechanism that can get them what they want. It's not idealistic, but its realistic. Happens at all levels of the judiciary -- attorneys have to argue what they think will win, not what they actually believe to necessarily be true.

I agree with what you're saying with respect to the nature of how a lot of appeals are made ... grasping at all the mechanisms available until they are exhausted can perhaps be overwhelmingly frivolous. I can't claim, however, to know what the anti-Prop 8ers are thinking with this appeal. They may truly believe that you can't specifically abrogate rights through the amendment referendum process, and that such an abrogation would truly be a revision. I, on the other hand, have no personal opinion on the matter. I don't want to call you cynical, but I also believe it may be a cynical viewpoint to automatically assume that use of the appeal process is a butthurt reaction to grasp at any legal mechanism that will get them what they want.

KaponoFor3: Code_Archeologist: such any state that specifically bans marriage of a group of people is acting in contravention of the 14th amendment to the Constitution.

I don't think this is accurate insofar as it goes to homosexuals as they aren't a protected class at the federal level.

Are they citizens of the United States? If yes then it does not matter if they are a "protected class". The term "protected class" is imaginary legal term which has been used as a bludgeon to deny protection against various groups of people who seek protection from discrimination. The 14th amendment does not recognize any specific classifications of citizens as being outside its purview. As such any law which denies homosexuals any state provided privileges (such as those provided through a marriage license) is unconstitutional. Period.

absoluteparanoia: They *are* happy with civil unions. I don't know why you're assuming otherwise.

Totally anecdotal, but every single "No" on 8 person that I've talked to has said that civil unions aren't enough and that they would only be happy with the usage of the term "marriage" in reference to their relationship. I can only go on experience, though just like I'm sure there are some that are happy with solely the same recognition of legal rights, you have to admit there are some who won't be happy until the application of the term "marriage" occurs to their same sex relationships.

absoluteparanoia: The fight shouldn't be about language. The state has no right to force the church to do anything in the same way that the church has no right to tell the state to ban something.

I agree 100% -- it shouldn't be about language, but it is about language.

WaltzingMathilda: I don't want to call you cynical, but I also believe it may be a cynical viewpoint to automatically assume that use of the appeal process is a butthurt reaction to grasp at any legal mechanism that will get them what they want.

I don't think its cynical, though I admit it could possibly be a form of "jaded'ness" given that I am involved with the judicial branch and other attorneys every day.

Code_Archeologist: Are they citizens of the United States? If yes then it does not matter if they are a "protected class". The term "protected class" is imaginary legal term which has been used as a bludgeon to deny protection against various groups of people who seek protection from discrimination.

Your beef isn't with me then, it's with the SCOTUS who has been utilizing protected classifications terms and analysis for many years.

You can argue till you are red in the face, but the SCOTUS accepts and uses the protected classification rubric.

Code_Archeologist: As such any law which denies homosexuals any state provided privileges (such as those provided through a marriage license) is unconstitutional. Period

You're wrong. I think, morally, you are correct, but legally you are wrong. I'm sorry.

KaponoFor3: California does -- it just calls them something different despite granting them almost 100% of the same legal rights (at least, according to the CA Supreme Court opinion).

Not in practice. For example--they no longer have visitation rights in the hospital.

My understanding is that this proposition restricts rights. That's what it boils down to. And this country was founded on the principal that we can't do that. *That* is the "tyranny of the majority".

*If we respected that tyranny, then only white male landowners could vote.

*If we respected that tyranny, then blacks would still be slaves.

*If we respected that tyranny, then women would be considered property of their husbands.

It's contrary to the entire idea of progress in a cultured civilization.

KaponoFor3: you have to admit there are some who won't be happy until the application of the term "marriage" occurs to their same sex relationships.

If they honestly think that term isn't used *right now* can we both agree that they are morons?

absoluteparanoia: Not in practice. For example--they no longer have visitation rights in the hospital.

This is the first I have heard of this as I always understood one of the main rights a civil union grants one person is the right to make the medical decisions for their partner just like a heterosexual spouse would. Could you point me to where you are getting this information?

absoluteparanoia: It's contrary to the entire idea of progress in a cultured civilization.

Look, you are preaching to the choir. I voted No on 8. Maybe it's my training as a lawyer, but I can't help and try to look at the other sides arguments and assess their strengths and weaknesses.

absoluteparanoia: If they honestly think that term isn't used *right now* can we both agree that they are morons?

I'll agree they are morans if they think "marriage" isn't being used right now by some churches to recognize their marriage. They aren't morans, though, on the point of the state recognition of their relationship as a "marriage"

Thorndyke Barnhard: Actually does it really matter if they don't want it to go to court? Isn't it up to the victims to make this go to court? What are they waiting for, or rather, why haven't they been able too?

It has been going to courts, slowly (the Massachusetts gay marriage law enacted as a response to a court's decision in regards to the denial of gay couple of a marriage license). Usually it has stopped in state supreme courts because the anti-gay marriage advocates do not want to go to the federal level and have a decision that applies to the entire country.

Another argument I've heard is that they are not being prevented from marrying just from marrying each other. While this is technically true it does entail a very real and substantive difference in the nature of marriage of heterosexual couples in a relationship characterized by both agape and eros love versus a pragmatic marriage between two homosexuals of opposite sex.

That same argument was made in Loving v Virginia and it was rejected out of hand.

i think someone on fark said it:

get rid of marriage as a legal definition altogether.
ONLY have civil unions.

if you want a marriage, go to a church that will perform one for yo.

Hell. Let's frame this proposition a different way.

If you lived in California and they were voting tomorrow on a new proposition.

Prop 9: Whether the state recognizes the right of individuals (outside of a militia) to own guns.

Would you respect a vote that outlawed domestic gun ownership in California?

Would such a vote ever be upheld by SCOTUS?

KaponoFor3: And both sides will fight to the death and to the very end on this issue of language.

For me that's the funniest thing about this whole thing; alot of the argument boils down to a semantic argument over the definition of the word marriage, whether it's supposed to be descriptive or prescriptive, which characteristics are are chosen to be most relevant to the description, etc...

That being the case it seems that the state is even less justified in throwing in with this academic argument...

KaponoFor3: This is the first I have heard of this as I always understood one of the main rights a civil union grants one person is the right to make the medical decisions for their partner just like a heterosexual spouse would. Could you point me to where you are getting this information?

I'll try to answer this with the following comment in mind.

KaponoFor3: I'll agree they are morans if they think "marriage" isn't being used right now by some churches to recognize their marriage. They aren't morans, though, on the point of the state recognition of their relationship as a "marriage"

A great deal of legislation on the books for the rights of civil unions actually uses the word "marriage". By refusing to allow the state to recognize gay "marriage", these statutes may (or may not) apply to a gay civil union.

It leaves a great deal of ambiguity.

KaponoFor3: You can argue till you are red in the face, but the SCOTUS accepts and uses the protected classification rubric.

Yep, I know... and as a matter of precedent homosexuals are a protected class (defined by legislation) for some things but not others. Which in and of itself is a twisted attempted to make homosexuals fit into the 14th amendment without actually giving them equal rights. I think that once this goes to the Supreme Court (and it will eventually) it is going to be nigh impossible for the anti-gay marriage law to remain standing simply because of all of the precedents which make the arguments against gay marriage moot.

If this gets to the SCOTUS, and that's a big if, then I think we will see the seminal (hehehehe) case on homosexual rights in our lifetime.

It's all about Kennedy. It's. all. about. Kennedy.

Code_Archeologist: Usually it has stopped in state supreme courts because the anti-gay marriage advocates do not want to go to the federal level

Do both sides have to agree to have a case heard at the federal level for it to be heard there?

Thorndyke Barnhard: Do both sides have to agree to have a case heard at the federal level for it to be heard there?

I have no idea, that would seem contrary to my intuition. Do you know KF3?

absoluteparanoia: Hell. Let's frame this proposition a different way.

If you lived in California and they were voting tomorrow on a new proposition.

Prop 9: Whether the state recognizes the right of individuals (outside of a militia) to own guns.

Would you respect a vote that outlawed domestic gun ownership in California?

Would such a vote ever be upheld by SCOTUS?

Respect: Yes, as a matter of civic duty

Upheld: No. Not a chance.

Thorndyke Barnhard: Do both sides have to agree to have a case heard at the federal level for it to be heard there?

No, not at all. Cases are routinely filed at the state court level only to be removed to federal court because of diversity of citizenship or the presentation of a federal question -- but that's at the trial court level.

For the appeals level, if you start in state court (as a general rule) you have to go all the way to your state's Supreme Court. Only after the Supreme Court has made a decision (I believe) can you appeal directly to the SCOTUS.

And only one party needs to make the appeal (along with the SCOTUS granting it cert.) -- cause think about it, if they needed both parties to agree to moving it to the federal level, whichever party won would just say no and that would be the end of it.

GoGoGo: i think someone on fark said it:

get rid of marriage as a legal definition altogether.
ONLY have civil unions.

if you want a marriage, go to a church that will perform one for yo.

I dont see why we don't just do this. If you can find a church to "marry" you, go for it. Otherwise just get the civil union, get the benefits, and your good to go. We get our "rights" and having a fullblown "wedding" in a church is just a bonus. We get our rights, the religious nuts keep their "Marriage". Its a win-win.

/"""""
/""""""""

Someone needs to tell all the gay guys that women got all the parts needed for buttsecks, and they can marry them.

/booyah

Thorndyke Barnhard: Code_Archeologist: Usually it has stopped in state supreme courts because the anti-gay marriage advocates do not want to go to the federal level

Do both sides have to agree to have a case heard at the federal level for it to be heard there?

No, only the side that wishes to appeal to the federal level needs to want it. Since the appeals to state supreme courts have consistently gone in favor of gay marriage, and the anti-gay marriage people do not want to push it to the federal level... it has remained in the states.

zippolight2002: GoGoGo: i think someone on fark said it:

get rid of marriage as a legal definition altogether.
ONLY have civil unions.

if you want a marriage, go to a church that will perform one for yo.

I dont see why we don't just do this.

Why don't we do this? Because this is "a christian nation" to a lot of idiots out there.

KaponoFor3: And only one party needs to make the appeal (along with the SCOTUS granting it cert.) -- cause think about it, if they needed both parties to agree to moving it to the federal level, whichever party won would just say no and that would be the end of it.

Ok that's what I figured but C_A kept saying that the reason it wasn't going to the federal level was because one party didn't want it to. Now that I've confirmed that that is not correct, I would still like to know the actual reason why the victims haven't taken this to the federal level yet.

Code_Archeologist: No, only the side that wishes to appeal to the federal level needs to want it. Since the appeals to state supreme courts have consistently gone in favor of gay marriage, and the anti-gay marriage people do not want to push it to the federal level... it has remained in the states.

OOOOOOOOOOH! Now I get it! Much clearer, thanks!

Sybarite: Hell, four percent probably thought they were voting Yes for gay marriage. Never underestimate the stupidity of the voting public.

This. Vote "yes" to say no to gay marriage. Vote "no" to say yes.

/that is incorrect
//The correct answer is "me", referring to "you"