Law School Discussion

Prop 8 discussion....

mugatu

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Re: Prop 8 discussion....
« Reply #40 on: November 11, 2008, 02:40:26 PM »

it depends.  the legal fall out hasn't occurred yet.  1) The passing of prop 8 may not be constitutional.  2) If it is found to be constitutional, I think there's a good argument that, based on constitutional and case law interpretation, the marriage laws in CA are unconstitutional. 

Mugatu- Would you mind fleshing this out for me?  Do you mean that prop 8's passage would make CA marriage law unconstitutional under the US Con?  or that the prop 8 amendment/revision would in and of its self void other marriage laws?

thx!

My (very tenuous) theory is that, if seen as an amendment, prop 8's passage invalidates CA marriage laws under the California constitution due to present case law regarding the constitution.  Since the court (quite clearly in my opinion) held that rights granted to some must be granted to all, and that homosexual people are a suspect class, the gendered marriage laws in CA are unconstitutional because they only provide certain rights to some people, excluding a suspect class.

It plays out rather interestingly, I think, in terms of what would then happen at the federal level.  I'm a bit busy right now, but i'd be happy to continue the conversation later.  Another poster, Miss P, also has some thoughts on how this would play.  (I find the outcome to be variable based on the arguments presented.  And I think she does too.)

jack24

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Re: Prop 8 discussion....
« Reply #41 on: November 11, 2008, 03:18:32 PM »
Maybe, but I never spoke to the morality of prop 8.  I'm just saying that same sex marriage probably won't be allowed in California any time soon.
I'm studying to be a lawyer, and you're telling me to focus on morality and emotion?
The morality argument is impossible.  There is a major difference on a fundamental belief.  Most supporters of proposition 8 are working out of a motivation to protect traditional values rather than out of a hatred for those who are different.

You are trying to divorce morality from law?  Seriously ???  Grow up little man.  The law is based in many ways on morality and various differing parties trying to impose their views of morality on everyone with LAWS. 

http://www.ocregister.com/articles/marriage-chemerinsky-church-2192934-people-gay




The law isn't always moral and it isn't always fair.  Efficiency, public policy, precedent and tradition are all just as heavily weighed as morality.  I'm not trying to divorce morality from law, I just think it's not the best focus for this discussion.   The moral issue is impossible because one side thinks that morals tells us to ban gay marriage, one side thinks morals mandate it.


Julie Fern

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Re: Prop 8 discussion....
« Reply #42 on: November 11, 2008, 03:54:48 PM »
I was going to reply, but I was usurped. :)

that very painful.  try some salve.

jack24

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Re: Prop 8 discussion....
« Reply #43 on: November 11, 2008, 03:57:10 PM »

The law isn't always moral and it isn't always fair. 

No $hit, thanx for the old news.

Efficiency, public policy, precedent and tradition are all just as heavily weighed as morality.  I'm not trying to divorce morality from law, I just think it's not the best focus for this discussion.   The moral issue is impossible because one side thinks that morals tells us to ban gay marriage, one side thinks morals mandate it.

Care to resolve your contradictions with the above?  Those elements are NOT weighed with equal weight in courts of law.
The entire thing IS a battle of conflicting morals that various parties are trying to impose on others with the rule of law.  Now it goes into the courts where it get's much more complicated with logic and case law and precedent and constitutions and all that.  How could you separate morality from this issue since it is the driving force behind the controversy?



In this case, it is not the job of the courts to be the moral compass for society.  The people who are against proposition 8 should concentrate on getting the voters to "progress" to the point where they are more accepting.
The courts should apply the existing law, not determine which set of morals are better.
If you have some time, find me some cases where the judge used a moral argument.   There are hundreds of cases where judges put the good of the many over the good of the few.  Is utilitarianism moral?  
My argument is that morality is almost always left to the jury.  When a judge has to factor morality in, it will usually take a backseat to efficiency, public policy, precedent and tradition.


Julie Fern

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Re: Prop 8 discussion....
« Reply #44 on: November 11, 2008, 03:58:51 PM »
rarely has julie heard more eloquent argument against salve.

jack24

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Re: Prop 8 discussion....
« Reply #45 on: November 11, 2008, 04:50:41 PM »
Sometimes judges make utilitarian decisions that aren't necessarily moral, because it is in the interest of public policy. 

I'm sorry that you are having trouble connecting the dots, but don't be an ass.
Judges usually leave morality up to juries, just as in this case, they should leave morality up to the people or the lawmakers.  A judge should sustain roe v. wade even if he thinks it is immoral.  A judge should sustain prop 8 even if he thinks it is immoral.  It is up to the people or the legislature to change policy unless the policy violates the current law or the constitution.  Many of those who are against prop 8 think that the courts should step in and overturn it.  I think they should focus on persuading those who should be the decision makers on this issue: The voters.



Re: Prop 8 discussion....
« Reply #46 on: November 11, 2008, 05:02:13 PM »
Sometimes judges make utilitarian decisions that aren't necessarily moral, because it is in the interest of public policy. 

I'm sorry that you are having trouble connecting the dots, but don't be an ass.
Judges usually leave morality up to juries, just as in this case, they should leave morality up to the people or the lawmakers.  A judge should sustain roe v. wade even if he thinks it is immoral.  A judge should sustain prop 8 even if he thinks it is immoral.  It is up to the people or the legislature to change policy unless the policy violates the current law or the constitution.  Many of those who are against prop 8 think that the courts should step in and overturn it.  I think they should focus on persuading those who should be the decision makers on this issue: The voters.




The "will of the people" is never a justification for violating constitutional rights (and even less so for changing the constitution to take away those rights).

If you really think the CA Supreme Court's decision was an incorrect application of judicial constitutional analysis and interpretation, I'd like to see your analysis. Please address all of the Court's arguments and demonstrate how they are incorrect. Otherwise, no, this isn't something that should be left to the voters.

Re: Prop 8 discussion....
« Reply #47 on: November 11, 2008, 05:04:59 PM »
The "will of the people" is never a justification for violating constitutional rights (and even less so for changing the constitution to take away those rights).

Wait, why is the "will of the people" insufficient justification for changing the constitution?  Isn't the constitution just an expression of the "will of the people"?  Does the constitution codify something other than the "will of the people"?  Is it an expression of, dare we say it, some kind of NATURAL LAW???

::hysterias::

Jesus gave us the Constitution.

Re: Prop 8 discussion....
« Reply #48 on: November 11, 2008, 05:08:33 PM »
Jesus gave us the Constitution.

No seriously.  If the people decided to amend the constitution to take away some kind of rights, for example free speech, would that be unconstitutional or wrong in some way?

Ask Jesus

jk

If they decided to take them away from one group of people, absolutely.

Re: Prop 8 discussion....
« Reply #49 on: November 11, 2008, 07:29:45 PM »
Jesus gave us the Constitution.

No seriously.  If the people decided to amend the constitution to take away some kind of rights, for example free speech, would that be unconstitutional or wrong in some way?

Ask Jesus

jk

If they decided to take them away from one group of people, absolutely.

What about if the people decided to amend the constitution to raise the voting age to 21?

I would probably have a problem with that.