CA Supreme Court review of Prop. 8

[ewu]

Firstly, the voters are not a 4^th branch of government, but rather who the government serve. When you vote you participate in governing the land, but you do not become a part of the government. By no means do the three branches have any role in checking or balancing the voters. However, our representative government DOES protect the public from stupid voters. Initiative (see: proposition) is a limited vestige of direct democracy that exists to offer more power to the people, but also a way for less than wise decisions to be made (see: prop 8, Sewage plant renaming).


but...BACK to the topic.....it is unfortunate that the CASC's ruling may discourage people from voting again cuz we are basically saying that their votes don't matter (btw, this is disenfranchisement, there is a wiki about it).

[Tony]

So should the CA Supreme court be able to review Prop. 8?

Legally, I have no clue. Personally, I think so.

What implications does it have? Can/should a court "usurp" public opinion?

Yes; in my pessimism, I would bet that a similarly-promoted amendment declaring marriage as only between the same race, or the same religion, would easily get double-digit support. Opinion is often short-sighted, naive, ignorant, pre-formed, or malicious.

but...BACK to the topic.....it is unfortunate that the CASC's ruling may discourage people from voting again cuz we are basically saying that their votes don't matter (btw, this is disenfranchisement, there is a wiki about it).

Eh, you could say the same about the voters that simply lost.

[AMKestrel]

but...BACK to the topic.....it is unfortunate that the CASC's ruling may discourage people from voting again cuz we are basically saying that their votes don't matter (btw, this is disenfranchisement, there is a wiki about it).

Wasn't that already demonstrated with the Bush vs Gore election being decided by
the Supreme Court?  (see http://en.wikipedia.org/wiki/Bush_v._Gore for more details
for those unfamiliar with that decision).

Heck, the whole electoral college is an exercise in disenfranchisement; a candidate
can win the majority of votes in a state, but lose the electoral college votes in
"all-or-nothing" states depending on the distribution of popular votes vs the voting
district boundries.  I hardly think people are going to get discouraged from voting
based on that decision; otherwise, the 2000 election should have sent people fleeing
from the polls in discouragement, and we haven't exactly seen that happen--from
Wikipedia: "Voter turnout for the 2008 election was the highest in at least 40 years."
--http://en.wikipedia.org/wiki/United_States_presidential_election,_2008

So, if the supreme court decision overturning Gore's win in 2000 didn't discourage
voters from voting, and indeed saw them turning out in record numbers this year,
I don't think the supreme court overturning prop 8 will discourage voters in the least;
if anything we might see a similar pattern of them turning out in record numbers for
future votes.

[Long]

I believe one of the duties of the Supreme Court is to defend minorities in the face of the majority. Majority rule, as has been proven, can be every bit as flawed as a single politicians views. Democracy is a nice idea, and it looks pretty on paper, but in reality, at a certain point it stops working.

So I say to hell with the majority, enforce the rules of the constitution and the principle that this nation was founded on equality. Not separate but equal.

[ewu]

the great thing is that we dont even have a direct democracy....totally indirect. Propositions are the only things we directly vote on....and even that has levels of abstraction...oh America, silly you!

[Kaura117]

It's arguable that Prop 8's passing was not, in fact, a true representation of untainted public opinion. Proponents for Prop 8 would be fools to overlook the influence of the Mormon and Catholic church's megabucks advertisement spending when asserting the proposition to voters. After all, the argument that media affects public opinion is the same argument people've been making to address video game violence, deviant behavior in the media, sexual objectivity, ect.

Forgot who was it that said that trying to say that books have never harmed a person is saying that books have never helped a person- but they were on the right track. Media influence cuts both ways, and Prop 8's legitimacy is affected by it.

And that is why we need a judicial court to finalize the legality of legislative processes and propositions. If the court strikes Prop 8 down, they will have done so for what they believe to be strong and lawful reasons- and frankly, historical patterns concerning civil rights would suggest they're merely following precedent in doing so.

tl;dr: Just because "The People" agreed to it doesn't mean it's the right move- or even representative of the populace's actual will or best interest.

[waffle-lover26]

I think the whole prop 8 think is wrong. Isn't it in the constitution that all people will be treated equally with free rights? America is just running out of people to discriminate against now...
Blacks, jews, gays and lesbians, what next? Left handed people?
I can see it now...
Prop. 18 - left handed people are not allowed to pick up writing utensils.

[mDuo13]

I think that the courts shouldn't have the power to reverse this law, much as I don't agree with it.

I think the right way to go about it is to try and change the public's opinion while you wait until the next election cycle and then try again, and keep trying until the law is the way you want it.

[M]

I think the right way to go about it is to try and change the public's opinion while you wait until the next election cycle and then try again, and keep trying until the law is the way you want it.

The issue with 'changing the public's opinion' is really hard to do when most people that agreed on 'Yes on Prop8' didn't really know what it was about. All the money that was put into the campaign definitely worked and in the end, most people still thought it was about "teaching kids about being gay", "how gay people are in the wrong", etc.

I agree that the courts shouldn't have the power to reverse stuff like this, but in this case where the voters definitely weren't correctly informed of it, I think that this should definitely go back on the ballot. :/

[Raymei]

It's arguable that Prop 8's passing was not, in fact, a true representation of untainted public opinion. Proponents for Prop 8 would be fools to overlook the influence of the Mormon and Catholic church's megabucks advertisement spending when asserting the proposition to voters.

THANK YOU.
I was wondering if anyone was going to bring that up.

Not only that, but they were organizations (religious or not) from out-of-state.  So it REALLY didn't feel like California's decision (to me anyway, but I voted 'No' so of course I feel that way  :P )
That whole campaign seemed like a dirty-deal from the get-go.  All the fliers in the mail talking about how it'd ruin families  (and all the Yes on 8 rallies with people holding signs that just read "Yes for Freedom. Yes for 8" etc  T.T  ).

[Stormfalcon]

I think that the courts shouldn't have the power to reverse this law, much as I don't agree with it.

I think the right way to go about it is to try and change the public's opinion while you wait until the next election cycle and then try again, and keep trying until the law is the way you want it.

And how far do you think we would've gotten with the Civil Rights movement in the sixties if we went your route instead?  Not very far.  A lot of the changes that took place back then were thanks to court and executive orders, not from waiting for public opinion to change.

[ewu]

Ken Starr and the Prop 8 Legal Defense Fund filed to have the 18,000 some odd marriages NULLIFIED.

http://www.couragecampaign.org/page/s/divorce

[RadioactiveKitty]

Just let them get married already, this should have been taken care of so long ago....it's just going to go back and forth until eventually they're allowed to anyway.

you know i like the way this is worded, simple and clean- and DEFIANTLY to the point

my opinion is it should just be made legal as well.

[codex biblio]

Just let them get married already, this should have been taken care of so long ago....it's just going to go back and forth until eventually they're allowed to anyway.

you know i like the way this is worded, simple and clean- and DEFIANTLY to the point
my opinion is it should just be made legal as well.

But this thread isn't so much a "Prop. 8" debate (which has its own thread). It's a "California Supreme Court review of Prop. 8" thread. This is more about the legal process. Prop. 8 is the example he's using in this instance.

In answer to the OP, yes, the state Supreme Court should be able to review Prop. 8. That's part of their job until someone takes that power away from them.

If the LA Times November article is accurate, there's precedent:
http://articles.latimes.com/2008/nov/20/local/me-prop8-supreme-court20
(I'm always a little leery about getting legal case history from mainstream media, but they're easy to find)

And sorry to be off topic, but this discussion did remind me that California anti-miscegenation laws were overturned only in mid-20th century.  Some others on this and other threads have made comparisons between Prop. 8 with interracial marriages. Interracial marriages fought a long social and legal battle. Are we comparing the same type of legal battle?

[TC X0 Lt 0X]

Of course the SC should be able to review Prop8. It is how are government system works, going threw Checks and Balances.

[ewu]

The checks and balances are between the legislature, judicial branch, and the executive. It has nothing to do with voters and an initiative.....



I just love to see the prop 8 get overturned and destroyed, but I also hope that its done correctly so that the ignorant, bigots will have no recourse to challenge the decision.

What important to note in the article Codex found is this:

Opponents challenged it on equal protection grounds, not as a constitutional revision.

This way of fighting an initiative is novel, and the fight may be still longer and more tedious.

[TC X0 Lt 0X]

Oh right, mixing stuff up (-_-)

But its basically the same concept.

[Nina Star 9]

I would have never thought that I would be posting here...



When the framers of the Constitution were doing their framing, one of the big concerns was aboout tyranny of the majority (Madison in particular was concerned about large factions), where the majority opresses a minority. The national government was structured in a way that would prevent this. While states =/= national and voters =/= a branch of government, isn't it going against a lot of the reason why the government is structured how it is if things are allowed too much direct democracy without a check in place to make sure that tyranny does not happen? If the California Supreme Court was not allowed to review Prop. 8, then I would feel like our system of government was breaking down in a way. We aren't a (direct) democracy, so we shouldn't govern like one, because there is a good reason why we aren't.

[ewu]

I don't really know where I'm going with this thread, but there still seems to be a discrepancy in my mind that makes me doubt the surety of a CASC judgment, should they overturn the proposition.

The thing about our democracy is that we have a direct democracy element. It is the initiative/proposition process. But more so, the main challenges to prop 8 are not about "equal protection" or oppression of a minority, but procedural. Granted that such a change to the constitution is grounded in violating equal protection, the challenges are not regarding the motivations of the proposition but the process by which the proposition was put on the ballot.

I can see the conservatives now....Those damn tree hugging, flag burning, butt screwing liberals have soiled our constitution and country by exploiting another technicality.

[Stormfalcon]

I don't really know where I'm going with this thread, but there still seems to be a discrepancy in my mind that makes me doubt the surety of a CASC judgment, should they overturn the proposition.

The thing about our democracy is that we have a direct democracy element. It is the initiative/proposition process. But more so, the main challenges to prop 8 are not about "equal protection" or oppression of a minority, but procedural. Granted that such a change to the constitution is grounded in violating equal protection, the challenges are not regarding the motivations of the proposition but the process by which the proposition was put on the ballot.

I can see the conservatives now....Those damn tree hugging, flag burning, butt screwing liberals have soiled our constitution and country by exploiting another technicality.

Of course, it could be argued that our initiative process needs a good hard looking-at right now (and is, in fact, overdue).  It isn't just Prop 8.  Through the initiative process, we the people of California have screwed ourselves silly, whether it's through bond after bond after bond measure that adds more to our debt, putting in budget spending restrictions that have limited our capability to adapt to changing economic realities, or putting in term limits that have left us with a legislature that is incapable of working together because they simply have no incentive to do so and no desire to as a result.  That's just the tip of the iceberg.

A California constitutional convention to revamp things is overdue.