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

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  •  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: Armisticeproject.org

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

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    •  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

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      •  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: Armisticeproject.org

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

        [ Parent ]

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

          ....like 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

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