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View Diary: Why was Prop. 8 Unconstitutional? - Brainstorm! (88 comments)

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  •  Confusion of language (1+ / 0-)
    Recommended by:
    Judge Moonbox

    There are fundamental rights and there are constitutionally-guaranteed rights.

    By definition, if you change a constitution to eliminate a right, even for a suspect class, it eliminates that constitutional protection. There may be some federal protection that prevents a state from doing that, but that's a separate question.

    Fundamental rights are those that are inherent -- sometimes called natural rights -- and they exist irrespective of the Constitution.

    I don't know much about California law, so I won't comment on specifics about what the Court meant by "statutory initiative".

    Coming Soon -- to an Internet connection near you:

    by FischFry on Tue Nov 11, 2008 at 06:22:50 PM PST

    [ Parent ]

    •  The right to marry.... (1+ / 0-)
      Recommended by:
      Seneca Doane

      ....does not exist explicitly in the California constitution. It is one of those fundamental rights that derives from the constitution. The court crafted a very careful and intricate argument in this regard. That is a key point because quite obviously Prop 8 did not rip the right to marry out of the constitution. That right exists through above and beyond the constitution.

      What Prop 8 did was eliminate that right for gays. And so the constitutional right to marry wasn't eliminated. What was eliminated was the right of gays to participate in that institution.  

      The court said that if you are going to rip away rights from gays, you have to have a compelling reason to do so.  That part of the ruling still stands.

      Tonight I'm going to party like it's 1929.

      by Bensdad on Tue Nov 11, 2008 at 07:19:51 PM PST

      [ Parent ]

      •  One argument that is being advanced (0+ / 0-)

        is that it does not deny gays the right to marry. They just have to marry a person of the opposite gender. Intuitively that seems silly, but it just might hold legal water.

        •  The court already nixed that canard in May (0+ / 0-)

          They said it won't hold constitutional water.

        •  No. That was addressed in the opinion. (1+ / 0-)
          Recommended by:
          Seneca Doane

          <<A statute that limits marriage to a union of persons of opposite sexes, thereby placing marriage outside the reach of couples of the same sex, unquestionably imposes different treatment <br>on the basis of sexual orientation. In our view, it is sophistic to suggest that this conclusion is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because
          making such a choice would require the negation of the person’s sexual orientation.>>

          They completely dismised this argument. They left no stone unturned, because the bigots left no stones unthrown.

          Tonight I'm going to party like it's 1929.

          by Bensdad on Tue Nov 11, 2008 at 07:35:30 PM PST

          [ Parent ]

      •  Sounds confused (0+ / 0-)

        Either it exists independent of or it derives from the Constitution. Can't be both.

        Coming Soon -- to an Internet connection near you:

        by FischFry on Tue Nov 11, 2008 at 07:33:48 PM PST

        [ Parent ]

        •  It is both. (0+ / 0-)

          It is regarded as "constitutionally based"...and also a natural right. Only former is language is used in the opinion. There is no mention of marriage in the Constitution (at least there wasn't before Prop 8).

          It is rooted in the fundamental liberty and privacy interests in the California constitution. It is in the penumbras if you will. It is a right that predated the Constitution and which is "embodied" in it.

          It is not mentioned in it anywhere except as noted above.

          Tonight I'm going to party like it's 1929.

          by Bensdad on Tue Nov 11, 2008 at 07:44:15 PM PST

          [ Parent ]

          •  I understand that it's not mentioned (0+ / 0-)

            And, I understand that doesn't mean it's not within the penumbras of undefined generic rights language -- so long as one accepts that there are rights that are found in such a document, even if not explicitly so.

            But, it can't derive from the Constitution or exist as an independent right. It's one or the other. It gets to whether rights can exist independently of a Constitution. If they do, and a right does exist independently of, then it does not derive from the Constitution. Hence any change to the Constitution could not impair such right. If it derives from the Constitution, then it's not independent of.

            "Derives from" has to mean something....

            Coming Soon -- to an Internet connection near you:

            by FischFry on Tue Nov 11, 2008 at 07:53:16 PM PST

            [ Parent ]

            •  Marriage is one of those fundamental rights.... (1+ / 0-)
              Recommended by:
              Seneca Doane

     procreation that have an existence independent of constitutional authority ("Oh, gosh -- honey, I forgot to tell you. We can't fuck. We might have a baby and the constitution doesn't mention our right to do that.").

              However, it is also "embodied" in the California constitution. That means the courts have "read" such a right into the constitution through legal legerdemain -- legerdemain so artful that it appears that the right to marry is actually mentioned in the constitution when it is not.

              The problem here is a constitutional provision that purports to deprive a suspect class of a right embodied in the constitution, but which right is not explicitly mentioned anywhere therein. That is to say, Prop 8 did not amend the consitutional right to marry. There was no language to amend. It changed the constitution to impair the right of certain people to marry.

              Theoretically you may be able to eliminate a right embodied in the constitution. The more difficult question presetned here is whether you can limit it for some, but not all.

              Tonight I'm going to party like it's 1929.

              by Bensdad on Tue Nov 11, 2008 at 08:14:46 PM PST

              [ Parent ]

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