CA's Prop 8 court case hearing closing statements today

[Deuce]

Rational here only means "that I agree with." The rational thing is for the court to through this case out. This was a State Constitutional Amendment and therefore the guiding law of the land that the judge should follow (whether he agrees with it or not). The judge should make the citizens of California repeal this Amendment if he were being rational.

Err, unless I'm misunderstanding, you have it backwards. Repealing the amendment would re-legalize gay marriage, but throwing the case out would do the opposite.

It is possible for a constitutional amendment to actually be unconstitutional, by conflicting with another portion of the constutition, and any state constitution has to conform to the US constitution anyway. Amendments aren't a magic wand that let you do anything you want. The way the California constitution works, the state must show that banning same-sex marriage furthers a compelling state interest, not to mention all the Supreme Court decisions regarding marriage that one can easily argue to be applicable here.

Loving v. Virginia, "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival."

Varnum v. Brian (Iowa Supreme Court) "We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination."

Zablocki v. Redhail, "Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals."
and
"When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests."

Griswold v. Connecticut, "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

Cleveland Board of Education v. LaFleur, ""This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment"

So, no, actually, the rational thing would be for the judge to hear out the case and decide impartially.

 

[RightinNYC]

The way the California constitution works, the state must show that banning same-sex marriage furthers a compelling state interest, not to mention all the Supreme Court decisions regarding marriage that one can easily argue to be applicable here.

FWIW, I don't think that the compelling interest test will be what is applied here. That's the test used when the court applies strict scrutiny, which is used for classifications based on race, religion, and national origin. The next level down is intermediate scrutiny, which is used for classifications based on gender. The lowest level, rational basis review, is used for everything else, including disability, age, and sexual orientation.

Olsen has argued that the court should apply strict scrutiny because the discrimination that gay people have suffered brings it to that level, but I have a hard time believing the court will apply strict scrutiny to laws dealing with sexual orientation while we're still applying immediate scrutiny to laws dealing with gender.

If the court applies rational basis review, the test will be whether the law is rationally related to a legitimate interest. The plaintiffs can certainly succeed under that test, though it will be more difficult.

 

[rathi]

Rational here only means "that I agree with." The rational thing is for the court to through this case out. This was a State Constitutional Amendment and therefore the guiding law of the land that the judge should follow (whether he agrees with it or not). The judge should make the citizens of California repeal this Amendment if he were being rational.

The California Initiative system doesn't work that way. The California Constitution has "amendments" passed by initiatives and actual revisions to the existing constitution that require a 2/3 majority vote from the legislature. Prop 8 was not voted on by the legislature, so it doesn't actually change the California constitution. Current language in the constitution forbids giving special privileges unequally, so the rational ruling would be to void prop 8 or remove the entire institution of marriage.

 

[Goshin]

Really? So, neither of you would object if the federal government stopped recognizing ANY marriage at all?

In some ways, that might actually be preferrable. We could go back to marriage as a private contract between individuals, and/or a religious institution, as was the case a long time ago.

 

[Deuce]

FWIW, I don't think that the compelling interest test will be what is applied here. That's the test used when the court applies strict scrutiny, which is used for classifications based on race, religion, and national origin. The next level down is intermediate scrutiny, which is used for classifications based on gender. The lowest level, rational basis review, is used for everything else, including disability, age, and sexual orientation.

Olsen has argued that the court should apply strict scrutiny because the discrimination that gay people have suffered brings it to that level, but I have a hard time believing the court will apply strict scrutiny to laws dealing with sexual orientation while we're still applying immediate scrutiny to laws dealing with gender.

If the court applies rational basis review, the test will be whether the law is rationally related to a legitimate interest. The plaintiffs can certainly succeed under that test, though it will be more difficult.

Applying intermediate scrutiny wouldn't be a huge surprise, given that this does relate to gender and the nature of previous SCOTUS decisions regarding marriage. Combined with the defense's abysmal work in the case, I think a ruling in favor of an injunction is likely. Besides, what is the "legitimate state interest" in banning same-sex marriage?

 

[hazlnut]

Rational here only means "that I agree with." The rational thing is for the court to through this case out. This was a State Constitutional Amendment and therefore the guiding law of the land that the judge should follow (whether he agrees with it or not). The judge should make the citizens of California repeal this Amendment if he were being rational.

This a FEDERAL court. The guiding law of the land is the U.S. Constitution.

 

[Deuce]

This a FEDERAL court. The guiding law of the land is the U.S. Constitution.

It's a federal court but it's ruling on a state issue. The laws of California and the California constitution are just as important. Of course, they must be in compliance with the US constitution but certainly that's not the only consideration here.

 

[hallam]

Err, unless I'm misunderstanding, you have it backwards. Repealing the amendment would re-legalize gay marriage, but throwing the case out would do the opposite.

It is possible for a constitutional amendment to actually be unconstitutional, by conflicting with another portion of the constutition, and any state constitution has to conform to the US constitution anyway. Amendments aren't a magic wand that let you do anything you want. The way the California constitution works, the state must show that banning same-sex marriage furthers a compelling state interest, not to mention all the Supreme Court decisions regarding marriage that one can easily argue to be applicable here.

Loving v. Virginia, "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival."

Varnum v. Brian (Iowa Supreme Court) "We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination."

Zablocki v. Redhail, "Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals."
and
"When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests."

Griswold v. Connecticut, "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

Cleveland Board of Education v. LaFleur, ""This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment"

So, no, actually, the rational thing would be for the judge to hear out the case and decide impartially.

Your entire argument is not correct. Any amendment adopted to a constitution supersede those rights before it if in conflict. Maybe Californians didn't realize they were rejecting equality clauses but it isn't for a judge to decide. You were not misunderstanding me. The people of California chose to be discriminatory towards gay people to the extent that they made it constitutional. they should be forced to make a second choice not to be discriminatory. A judge doesn't have the power to throw this out. Previous president was also thrown out when the people decided to be stupid.

 

[Deuce]

Your entire argument is not correct. Any amendment adopted to a constitution supersede those rights before it if in conflict. Maybe Californians didn't realize they were rejecting equality clauses but it isn't for a judge to decide. You were not misunderstanding me. The people of California chose to be discriminatory towards gay people to the extent that they made it constitutional. they should be forced to make a second choice not to be discriminatory. A judge doesn't have the power to throw this out. Previous president was also thrown out when the people decided to be stupid.

No, you don't understand. You can't have your constitution contradict itself, nor can it contradict the US constitution. For example, if your state's constitution says that Starbucks Coffee is a right that can't be denied to the citizens, you have to change that statement if you want to add a statement that says Starbucks Coffee is banned. The legal argument here is that Prop 8 contradicts various parts of the California and US constitutions regarding discrimination and equal protection. Since the equal protection and discrimination clauses were not directly altered by Prop 8, this needs to be settled. A state constitutional amendment is not a magic wand for whatever you want. If 100% of California's voters and legislatures all voted to reinstitute slavery in California, it would be in violation of the US constitution.

Saying that this case should just be thrown out because OH ITS AN AMENDMENT THEREFORE ITS OK is just burying your head in the sand. Ignoring Supreme Court decisions isn't a very good way to make a legal case: they're freaking law of the land.

 

[hallam]

No, you don't understand. You can't have your constitution contradict itself, nor can it contradict the US constitution. For example, if your state's constitution says that Starbucks Coffee is a right that can't be denied to the citizens, you have to change that statement if you want to add a statement that says Starbucks Coffee is banned. The legal argument here is that Prop 8 contradicts various parts of the California and US constitutions regarding discrimination and equal protection. Since the equal protection and discrimination clauses were not directly altered by Prop 8, this needs to be settled. A state constitutional amendment is not a magic wand for whatever you want. If 100% of California's voters and legislatures all voted to reinstitute slavery in California, it would be in violation of the US constitution.

Saying that this case should just be thrown out because OH ITS AN AMENDMENT THEREFORE ITS OK is just burying your head in the sand. Ignoring Supreme Court decisions isn't a very good way to make a legal case: they're freaking law of the land.

I agree that a Constitution can't be in conflict nor can in be in conflict with the US Constitution. I am not saying they are in conflict. I am sorry for not being clearer. The acceptance of Prop 8 repeals their equality causes within the the California State Constitution whether Californians are willing to admit this or not. I wouldn't want to think about it either if I were them. Further the US Constitution is silent here as marriage has never been deemed a right as a category or a subcategory under any of the Amendments to the US Constitution. So while this is in federal court, it is a state matter where the State Constitution is the superseding body of laws.

Further, I am not saying that people should bury their heads in the sand in any way, shape, or form. I am saying that Californians have to get themselves out of this or live with the fact that they repealed their equality causes. It should be up to the people to take responsibility for this but as we sometimes find out, people can't stand taking responsibility. A judge should not be allowed to through this amendment out because the people of California should learn to be better. Plus there is the small, insignificant fact that the US federal court here doesn't have the authority to throw it out as the amendment don't conflict with anything in the US Constitution.

 

[rathi]

I agree that a Constitution can't be in conflict nor can in be in conflict with the US Constitution. I am not saying they are in conflict. I am sorry for not being clearer. The acceptance of Prop 8 repeals their equality causes within the the California State Constitution whether Californians are willing to admit this or not.

Incorrect. Prop 8 would have needed a 2/3 legislative majority vote in order to repealing the existing clauses in the California Constitution. Since you just admitted that prop 8 does come into conflict with the current California Constitution, I suppose you will be consistent and stand by overturning prop 8 for failing to follow the proper laws.

 

[Deuce]

I agree that a Constitution can't be in conflict nor can in be in conflict with the US Constitution. I am not saying they are in conflict. I am sorry for not being clearer. The acceptance of Prop 8 repeals their equality causes within the the California State Constitution whether Californians are willing to admit this or not. I wouldn't want to think about it either if I were them. Further the US Constitution is silent here as marriage has never been deemed a right as a category or a subcategory under any of the Amendments to the US Constitution. So while this is in federal court, it is a state matter where the State Constitution is the superseding body of laws.

Further, I am not saying that people should bury their heads in the sand in any way, shape, or form. I am saying that Californians have to get themselves out of this or live with the fact that they repealed their equality causes. It should be up to the people to take responsibility for this but as we sometimes find out, people can't stand taking responsibility. A judge should not be allowed to through this amendment out because the people of California should learn to be better. Plus there is the small, insignificant fact that the US federal court here doesn't have the authority to throw it out as the amendment don't conflict with anything in the US Constitution.

The constitution is silent on the issue of marriage but the Supreme Court most certainly is not. SCOTUS called marriage a fundamental right on more than one occassion. That means something.

 

[RightinNYC]

The constitution is silent on the issue of marriage but the Supreme Court most certainly is not. SCOTUS called marriage a fundamental right on more than one occassion. That means something.

But they did so in cases where the laws sought to ban interracial marriage. The court has said that race is different in many cases, and most other courts to interpret those cases have rejected the argument that it would apply equally to same sex marriage.

In Lawrence v. Texas, O'Connor was the only one in the majority who held that the law banning sodomy violated equal protection. Even she added this:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

 

[Deuce]

But they did so in cases where the laws sought to ban interracial marriage. The court has said that race is different in many cases, and most other courts to interpret those cases have rejected the argument that it would apply equally to same sex marriage.

In Lawrence v. Texas, O'Connor was the only one in the majority who held that the law banning sodomy violated equal protection. Even she added this:

And the question here is whether that same argument that overturned the interracial marriage bans should be applied to same-sex marriage. "the right to marry is of fundamental importance to all individuals" is pretty ****ing powerful words coming from SCOTUS. Hence this whole court proceeding.

 

[RightinNYC]

And the question here is whether that same argument that overturned the interracial marriage bans should be applied to same-sex marriage. "the right to marry is of fundamental importance to all individuals" is pretty ****ing powerful words coming from SCOTUS. Hence this whole court proceeding.

I know, I'm just saying that taking Loving and applying it to gay marriage is not as short of a path as the starkness of the language makes it seem. From the NY CoA's 2006 opinion on this issue:

The historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950s and 1960s, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago. But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.

 

[Deuce]

I know, I'm just saying that taking Loving and applying it to gay marriage is not as short of a path as the starkness of the language makes it seem. From the NY CoA's 2006 opinion on this issue:

Fortunately that's only one of many reasons I use to support my claim that denying same-sex marriage is ****ed up and beyond any rational reasoning.

 

[hallam]

The constitution is silent on the issue of marriage but the Supreme Court most certainly is not. SCOTUS called marriage a fundamental right on more than one occassion. That means something.

Unfortunately, you are extending these rulings. SCOTUS has never ruled that gay marriage is a fundamental right. Their rulings have never set judicial precedent that far on this matter.

 

[roguenuke]

I know, I'm just saying that taking Loving and applying it to gay marriage is not as short of a path as the starkness of the language makes it seem. From the NY CoA's 2006 opinion on this issue:

But that quote is essentially saying, although we recognize that you (homosexuals) are being discriminated against, in order for us to give you true equal protection, you need to fight a lot longer because it took so long to knock racism down to the level it is at today. Which is really bull crap. Why should a group, who is recognized as being discriminated against, have to wait longer to get their equal protection just because the group before them had to wait so long?

 

[jambalaya]

My basic premise on gay marriage is that when the institution of marriage was created it was done so for the purpose of joining a man and a woman in matrimony, usually in a religious service, for the purposes of establishing family and structure for the couple and their children. This was long before birth control and abortion. It was long before we could know for sure that a woman or man could possibly be unable to produce children because of infertility and other medical problems. If you got married and had sex you were going to have children. Marraige was a way to say join, go forth and have children, remain loyal to each other and be responsible for your offspring. Later governments and society got involved and made laws with respect to marriage. One had to get a marriage license from the state or local government so that the laws could be applied to the union. There wasn't a twinkling of thought in anyone's mind that same sexes would need to be "married" or would consider it. So, why should we expand marriage in this day to include same sex couples?

Well, I can certainly see why we need to somehow govern or sanction these unions for legal and practical reasons. I think we need to blow up the entire idea of governments sanctioning marriage and treat all joinings as a civil union. We should have specific laws for all types of unions. They are not necessarily all equal. And since we recognize that the old fashion idea of marriage no longer exists, save the term marriage for whatever religious or non-religious ceremony of your choosing where everyone can preserve their idea of it or create a new idea for it. Gays wanting to be "married" and recognized by the state is just a symbolic jesture to say "hey, I am exactly like you so there!". No you are not but that doesn't mean you should be any less respected nor does it mean you should be "married".

 

[Deuce]

Actually marriage started off as a legal contract involving the sale of a woman to become a wife, basically...

That whole idea that love or equality or sharing should be involved came later.

edit: Or, more entertainingly put:
http://www.youtube.com/watch?v=OFkeKKszXTw

 

[JustineCredible]

Unfortunately, you are extending these rulings. SCOTUS has never ruled that gay marriage is a fundamental right. Their rulings have never set judicial precedent that far on this matter.

You're right there...but who's to say with Perry v. Schwarzenegger it won't?
Besides, it wasn't "Gay" marriage, it was "Marriage" in general. Regardless of race involved, marriage has been ruled as a fundamental right. Only now it's being challenged by way of technicalities between gay and straight marriage.