About Prop 8....

[Indy Coug]

Does anyone honestly think that in the unlikely event that Prop 8 actually passes that it will stand up to California court scrutiny?

[BlueHair]

Originally Posted by Indy Coug

Does anyone honestly think that in the unlikely event that Prop 8 actually passes that it will stand up to California court scrutiny?

We can only hope it doesn't stand it court. You never know with these conservative activist judges.

[creekster]

Originally Posted by Indy Coug

Does anyone honestly think that in the unlikely event that Prop 8 actually passes that it will stand up to California court scrutiny?

Of course it will. that is the whole point. It is an amendment to the california constitution. The court has nto choice. The issue willbe the federal consitution.

[TripletDaddy]

Originally Posted by Indy Coug

Does anyone honestly think that in the unlikely event that Prop 8 actually passes that it will stand up to California court scrutiny?

Indy, my understanding is that this is the last step on the state level.

After this, federal circuit, baby!

creekster's point is a fair one....most state constitutions have already settled the issue.

However, that doesn't mean that the SC cannot say, "too bad. change your constitutions."

It is inevitable. This issue will go up to the SC.

I am not sure how it stands up to scrutiny, since on its face, it appears to be a basic denial of equal treatment. Also, is there enough data to demonstrate a compelling public interest to prevent gays from marriage? There may be, but I'd like to see it.

[Indy Coug]

Originally Posted by creekster

Of course it will. that is the whole point. It is an amendment to the california constitution. The court has nto choice. The issue willbe the federal consitution.

OK, so I'm admittedly ignorant of California law, but what you're saying is that if you can get more than 50% support on any law, no matter how unconstitutional it is, it is immune from judicial review and not subject to being overturned?

[TripletDaddy]

Originally Posted by Indy Coug

OK, so I'm admittedly ignorant of California law, but what you're saying is that if you can get more than 50% support on any law, no matter how unconstitutional it is, it is immune from judicial review and not subject to being overturned?

No, it can be....just not at the state level. At that point, it goes up to the federal level.

That is where the SC comes in. And that is why the SC is constantly pushing stuff back down to the state. If an issue comes before the SC prematurely (meaning it has not yet exhausted all possible state and circuit level avenues), then usually the SC will simply say, "daddy's home boys....and I will serve no fries before their time...."

[PaloAltoCougar]

Originally Posted by TripletDaddy

I am just opposed to the emotional rhetoric of "4 activist judges overturning the will of the people."

The rhetoric has been dialed up recently, shifting from "activist" to "wicked", as in "I don't want wicked judges (see Mosiah 29) overturning the will of the people. Prop 22 was passed by 61% in 2000. 4 wicked judges overturned it."
http://www.cougarboard.com/noframes/...tml?id=4180721

Judges have made countless bad decisions, some of which went against the will of the people. I regard such judges as stupid, not wicked. But other judges, going against the will of the people, have rendered brave and excellent decisions. Were it not for such judges, we would have had segregated schools for much longer, and interracial couples would be serving time.

[UtahDan]

Originally Posted by TripletDaddy

I am not sure how it stands up to scrutiny, since on its face, it appears to be a basic denial of equal treatment. Also, is there enough data to demonstrate a compelling public interest to prevent gays from marriage? There may be, but I'd like to see it.

IIRC, the issue will be whether there is a "rational basis" for the classification made, though it will surely be argued that it should get "strict scrutiny" (as with race based classifications) or the middle-level scrutiny that gender classifications get.

Rational basis is a low bar and the Court would have to find that there is none, that it is totally arbitrary. Whether you think on a moral level whether there are rational reasons to make the classification will answer the question. I bet this has come up before now but I'm too lazy to do a Lexis search.

[UtahDan]

Originally Posted by Indy Coug

OK, so I'm admittedly ignorant of California law, but what you're saying is that if you can get more than 50% support on any law, no matter how unconstitutional it is, it is immune from judicial review and not subject to being overturned?

Sort of. What he is saying is that if you put something on the ballot in California to amend the constitution (which it is very easy to do there) then it becomes the constitution of that state. Once it is part of the constitution, all a judge can do is interpret it. Never strike it down, at least on the state leve. Recall that the Ca SC found that there was a right to gay marriage under its state constitution, not the federal constitution. One of the things to keep in mind is that a state constitution can give its citizens more rights than the federal constitution, but never fewer. The federal constitution is the floor, which is why all the states whose highest cousrt ahve found the right does exist there have found that it does under the constitution of that state. So change the constitution in a way that is only subject to one interpretation and you fix the issue.

The further issue is whether under the federal constitution you have created a "classification" that runs a foul of the fourteenth amendment (equal protection clause) which has several layers for deciding whether a classification is permissible depending on what it is. The SCOTUS has never found that sexual orientation is a "suspect class" (that is, in laymans terms, you have to have a really good reason for making that classification) like race or religion or even a quasi-suspect class like gender. For any of those a state must show a really, really good reason for having a law that treats people differently based on one of those.

Everything else, all other classifications, just meet a rational basis test. That is, if there is any rational reason at all the law treats people differently then the law is okay. So far, sexual orientation is in this latter class. So any articulable reason for a law (or a state constitution) that treats them differently will suffice.

The SCOTUS, however, could decide to expand its definition of "suspect class" to include sexual orientation and no doubt it is going to get asked to do exactly that at some point. Hope that is helpful.

[TripletDaddy]

Originally Posted by UtahDan

IIRC, the issue will be whether there is a "rational basis" for the classification made, though it will surely be argued that it should get "strict scrutiny" (as with race based classifications) or the middle-level scrutiny that gender classifications get.

Rational basis is a low bar and the Court would have to find that there is none, that it is totally arbitrary. Whether you think on a moral level whether there are rational reasons to make the classification will answer the question. I bet this has come up before now but I'm too lazy to do a Lexis search.

Thanks UD. I believe you are correct.

rational basis sounds correct.

I need to bust out my Con Law notes.