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Ear to the Ground

California’s High Court to Rule on Marriage Ban

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Posted on Nov 19, 2008
courtinfo.ca.gov

The California Supreme Court, from left: Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. Corrigan.

The California Supreme Court has agreed to examine the state’s recently adopted marriage ban, scheduling a hearing for March. The court will decide whether Prop. 8 was a sweeping revision or a simple amendment to the state’s constitution, and whether legally married same-sex couples should suffer a blanket divorce.

In the meantime, there will be no more same-sex marriages in California, a decision that should please supporters of the ban as well as the state’s attorney general, who argued accordingly.


Los Angeles Times:

The California Supreme Court agreed [Wednesday] to review legal challenges to Prop. 8, the voter initiative that restored a ban on same-sex marriage, but refused to permit gay weddings to resume pending a ruling.

Meeting in closed session, the state high court asked litigants on both sides for more written arguments and scheduled a hearing for next March. The court also signaled its intention to decide the fate of existing same-sex marriages, asking litigants to argue that question.

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By cann4ing, November 21, 2008 at 10:54 am Link to this comment

Thank you, Robert, for a succinct and accurate statement on the role of the judiciary within our constitutional republic.

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By Robert, November 21, 2008 at 5:07 am Link to this comment
(Unregistered commenter)

“If the question of separation of church and state entails an issue of “settled law”, then why are we still talking about it?  If it is “settled” why is it even an issue?”

It’s still being discussed because there are a large number of people who don’t understand how government works or the purpose of the various branches.  People like to think the Supreme Court exists solely to rubber stamp the will of the majority.  And if the will is constitutional they would.  But if the will of the majority violates the consitution… well, it is the constitution they are sworn to uphold. 

People continue to maintain the idea that we are a democracy.  We are in certain respects, but we are primarily a constitutional republic.  And that means our democracy works as a democracy unless and until those actions violate a core constitutional principle… and then the court exercises it’s right and responsibility of keeping us in line with those principles. 

If Prop 8 is thrown out, and I believe the arguments in favor of throwing it out are sound…. those who supported it and pushed it through with lies will cry that they have been disenfrachised.  They will whine about 4 robed justices undoing the will of the people… 

In fact, they will have done their job..

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By cann4ing, November 20, 2008 at 11:41 pm Link to this comment

Jeff, you are hopeless and apparently incapable of maintaining a logical form of discourse. 

Separation of church and state is settled law.  It forms the basis for the argument I presented as to why political donations by a religious organization to a ballot proposition should give rise to their forfeiture of their tax exemption.

Our colloquy on the constitutional principle of separation of church and state did “not” arise because it involves an “issue” of unsettled law.  It arose because “you” made the remarkably ignorant remark that the U.S. Constitution does not mandate a separation of church and state.

“You” were the one who sought to question the existence of separation of church and state as a constitutional principle.  The fact that “you” refuse to accept a basic and accepted principle of the American constitutional law does not make it an “issue” or negate the fact that it is settled law.

Here’s a little exam for you Jeff:  How many times do the words “God,” “Christianity,” or “Christian religion” appear in the text of the United States Constitution?  Hint:  Instead of seeking an answer from your pastor, try reading the actual text of the constitution.

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By Jeff29, November 20, 2008 at 5:30 pm Link to this comment

With all due respect, Cann4ing, your post reveals the avoidance tactics of those indoctrinated by the propaganda of the Liberal Left.

If the question of separation of church and state entails an issue of “settled law”, then why are we still talking about it?  If it is “settled” why is it even an issue?

——-
“You hold very strong opinions but you know “nothing” about the foundations of U.S. Constitutional Law, and I, for one, find it counterproductive to further engage in further discourse with the willfully ignorant.  You want an education, seek it out at institutions of higher learning—that is, assuming you finished high school and are even eligible to attend.”

That was a great tactic, Counsel, try to discredit and degrade the opposition in order to avoid dealing with real issues.  Don’t they teach that in Law School 101?  You should have gone to Law School 201 which is where they teach you to actually back up and have ‘witnesses’ for the things you say.

BTW, I’d be happy to compare transcripts any time you’d like.

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By cann4ing, November 20, 2008 at 5:15 pm Link to this comment

By phil, November 19 at 11:06 pm #
(Unregistered commenter)

Do not the courts come under the Government, in this case the Government of, by & for the people. & are not the courts for the people? When most of the people feel
that same sex marriage is unwanted, Even though it appears as an issue on liberty, where by these same people feel that it is “Moral Slavery” a ‘guilt’ they
have to bear as dutiful citizens of the country & society, for the sake of a few, whose abnormality of being homosexual, which by itself is not banned, but accepted, must be kept limited to that. For we need not try to go ahead of our time, without knowing what the future holds for us.
________________________

Phil, what you need to understand is that there are certain constitutional principles that lie beyond the whim of the majority.  The right not to be deprived of life, liberty or property without due process of law is embodied in both the 5th & 14th Amendments of the U.S. Constitution.  That is not a right that can be repealed by a simple majority vote using the initiative process.  So if the voters of California struck down a proposition that the local police had a right to arrest anyone who “looked suspicious” and then lock them up for life without a trial, a Court would strike down that measure as unconstitutional.

While you describe homosexuality as “abnormal,” there is a substantial body of scientific literature that explains it on a biological/physiological basis—as opposed to a condition of choice.

While I am not gay and suspect you are not either, the question is whether you and I have a right to discriminate against those who are different from us by depriving them of a right (marriage) that is available to heterosexuals.  That entails a very serious legal question involving the Equal Protection Clause of the 14th Amendment—one appropriately addressed by judges in a dispassionate fashion without fear of retribution from those who do not like the idea of gay marriage.

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By cann4ing, November 20, 2008 at 5:02 pm Link to this comment

With all due respect, Jeff29, your posts reveal the rantings typical of those indoctrinated by the propaganda of the Christian right.  The question of separation of church and state entails an issue of “settled law”—that is, law so universally and long accepted by our courts that it is not open to question. 

You hold very strong opinions but you know “nothing” about the foundations of U.S. Constitutional Law, and I, for one, find it counterproductive to further engage in further discourse with the willfully ignorant.  You want an education, seek it out at institutions of higher learning—that is, assuming you finished high school and are even eligible to attend.

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By Jeff29, November 20, 2008 at 3:57 pm Link to this comment

“The Framers indeed have made remarks and they are not to your liking.  George Washington noted that the United States is in no way founded upon the tenets of the Christian religion. Thomas Jefferson’s remarks were even more forceful.”

Do you have any references for that, Counsel.

“Contrary to the BS that you are fed in church, the United States has a “secular” government.  It is not a Christian state any more than it is a Jewish state, or a Muslim state or a Sikh state or a state modeled after any other religion you can think of.”

Really? What is the most often cited text in the writings of the Framers?  By far (without even a close second) it is the Old Testament, particularly the book of Deuteronomy (you know, the book that outlines most of the Jewish legal and economic system).  The U.S. Constitution, government, legal system, etc. are all based on a Judeo-Christian code.  To deny that is just plain ridiculous.

“The fact is that the Mormon Church was at the center of an expensive and deceptive ad campaign which proved quite successful in changing the pre-election poll numbers opposing Prop 8 into a narrow electoral victory—one which now has people in the rest of the nation scratching their heads, wondering how “progressive California” could get it so wrong.”

Deceptive ad campaign?  Did you type that with a straight face?  You need to look in the mirror.

Where do you get the basis of the rest of the nation thinking California got it wrong?  MSNBC?

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By cann4ing, November 20, 2008 at 10:39 am Link to this comment

By Blackspeare, November 20 at 8:45 am #

You can blame the Mormon Church if you want, but the fact remains that the greater number of Black voters this time around made the acceptance of Proposition 8 possible.  It is ironic that the oppressees are now the oppressors!!!
_________________________

Not any more ironic than the erection of the apartheid wall where Gaza now resembles the Warsaw Ghetto of 1943.

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Blackspeare's avatar

By Blackspeare, November 20, 2008 at 9:45 am Link to this comment

You can blame the Mormon Church if you want, but the fact remains that the greater number of Black voters this time around made the acceptance of Proposition 8 possible.  It is ironic that the oppressees are now the oppressors!!!

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By Jaded Prole, November 20, 2008 at 6:03 am Link to this comment

State Marriage should be banned for all and replaced with Civil Union Contracts available to all consenting adults. The state has no business regulating “Marriage” which is essentially a religious institution. Civil Unions should be available regardless of orientation, or gender identity.

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By Marshall, November 20, 2008 at 3:48 am Link to this comment

By cann4ing, November 19 at 9:18 pm #

Canning, the black community has never supported gay rights issues and it doesn’t take the mormon church to show this at the ballot box.  And for those of us who don’t buy the “civil rights” argument for gay marriage, the school issue isn’t required, even though it’s valid.

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By phil, November 20, 2008 at 12:06 am Link to this comment
(Unregistered commenter)

Do not the courts come under the Government, in this case the Government of, by & for the people. & are not the courts for the people? When most of the people feel
that same sex marriage is unwanted, Even though it appears as an issue on liberty, where by these same people feel that it is “Moral Slavery” a ‘guilt’ they
have to bear as dutiful citizens of the country & society, for the sake of a few, whose abnormality of being homosexual, which by itself is not banned, but accepted, must be kept limited to that. For we need not try to go ahead of our time, without knowing what the future holds for us.

Report this

By cann4ing, November 19, 2008 at 10:18 pm Link to this comment

By Jeff29, November 19 at 8:51 pm #

3. As an attorney, you are well aware that the Constitution does not contain a “separation of Church and State” clause.  Go read the Founders and find out what their intent was for church and state.
_________________________________

The First Amendment bars the “establishment” of any religion (freedom “from” religion).  That clause has been “consistently” interpreted by the U.S. Supreme Court to mandate separation of church and state.  The First Amendment also protects an individual’s right to worship as he or she sees fit—that, of course, means a right “not” to believe.

The Constitution also forbids any religious test for holding federal office.

The Framers indeed have made remarks and they are not to your liking.  George Washington noted that the United States is in no way founded upon the tenets of the Christian religion. Thomas Jefferson’s remarks were even more forceful.

Contrary to the BS that you are fed in church, the United States has a “secular” government.  It is not a Christian state any more than it is a Jewish state, or a Muslim state or a Sikh state or a state modeled after any other religion you can think of.

Whether the Mormon Church poured money into imposing its narrow religious doctrine of bigotry directly by donations or by persuading and encouraging its members to make the donations is of little moment.  The fact is that the Mormon Church was at the center of an expensive and deceptive ad campaign which proved quite successful in changing the pre-election poll numbers opposing Prop 8 into a narrow electoral victory—one which now has people in the rest of the nation scratching their heads, wondering how “progressive California” could get it so wrong.

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By Jeff29, November 19, 2008 at 9:51 pm Link to this comment

Cann4ing,

1. As an attorney for 31 years, what should really trouble you is the ridiculous arguments that were used by the CA Supreme Court in overturning prop 22. 

2. The “wealthy” church did not give any money to prop 8 (actually I think the church itself donate a little over $4000); the money was donated by it’s members, who, last time I checked were free to donate to any cause they wish.

3. As an attorney, you are well aware that the Constitution does not contain a “separation of Church and State” clause.  Go read the Founders and find out what their intent was for church and state.  It certainly had nothing to do with preventing a Church from encouraging its members to support a cause.

4. Taking away the Mormons’ tax exempt status won’t hurt the Mormons.  They give away more money in humanitarian aid each year than they would pay in taxes.  They would simply be forced to significantly decrease the aid they give in order to continue with their normal church operations (although this year, they will spend more in repairing the damage vandals have caused in the name of tolerance).

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By cann4ing, November 19, 2008 at 9:25 pm Link to this comment

As an attorney who has practiced 31 years in California and a life-long student of the rule of law, I am deeply troubled by threat to recall any jurist who dares to declare Prop 8 unconstitutional.  Judicial decisions are supposed to be based purely on the issues of fact and law that are before the court.  Unlike political decisions of the legislative and executive branches, judicial decisions are not and never should be based on what is “popular.”

Although the article stresses that the opponents’ challenge focuses on whether Prop 8 is a “revision” of the constitution rather than an amendment, I suspect that some, if not all, of the opponent petitions argue in the alternative that Prop 8 violates the right to equal protection under the law.

If the majority of Justices determine that Prop 8 is unconstitutional, the revision vs. amendment argument provides the safer ruling, since that entails merely a question of state law which would not be subject to an appellate challenge before the U.S. Supreme Court.  If they rule that a federal right—equal protection under the 14th Amendment—is violated by Prop 8, it would open the door to the proponents taking the case up to the U.S. Supreme Court.

Finally, I have been deeply troubled by the extent to which a wealthy church can impose its religious doctrines on others, violating separation of church and state.  Perhaps it is time to take a hard look at whether, at least in California, the Mormon church should lose its tax exempt status.

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By Jeff29, November 19, 2008 at 9:03 pm Link to this comment

“Translation - do as I say or I’ll do everything I can to ruin your life, regardless of the existing constitution.”  Regardless of the existing Constitution?  You mean the California Constitution that gives the people the right to have referendum votes (i.e. prop 22) only to be overturned by the court (did any of you actually take the time to read the ruling last May?  Laughable).

Those of you who think this is about the actual marriage of gays, need go back and look at what the major proponents of prop 8 really said, and then address the real issues. 

I love watching people call Mormons and others bigots at the same time they cheer those who are vandalizing their churches and personal property (bigots and hypocrites).

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By Dale, November 19, 2008 at 7:39 pm Link to this comment
(Unregistered commenter)

“Supporters of Proposition 8 have threatened to mount a recall of any justice who votes to overturn the measure.”

Translation - do as I say or I’ll do everything I can to ruin your life, regardless of the existing constitution.

“Good” “Loving” “Christians” indeed!

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By Robert, November 19, 2008 at 6:33 pm Link to this comment
(Unregistered commenter)

From a CNN article:

“In its May 15 ruling legalizing gay marriage in California, the justices seemed to signal that a ballot initiative like Proposition 8 might not be enough to change the underlying constitutional issues of the case in the court’s eyes.

The ruling said the right to marry is among a set of basic human rights “so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the legislature or by the electorate through the statutory initiative process.”

This gave me much more hope that this challenge will succeed.  It needs to.  Americans (if you can call them that) who believe they can vote away the civil rights of another group NEED a civics lesson on what they can and can’t do.  And the Mormons who re-financed their homes to fund this crap need to let others know how foolish they were to listen to their church..  they really were..

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By lichen, November 19, 2008 at 5:35 pm Link to this comment

Yes, marriage is a civil right, and will never be the property of religious and homophobic bigots!

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