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Author Topic: SFLSD: Oh! The inhumanities.  (Read 2680612 times)

mugatu

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Re: SFLSD: No on Prop 8.
« Reply #56610 on: November 05, 2008, 05:03:30 PM »
There's something here where, Prop 8 having passed, marriage is over.

Yeah.

Not to be a bitter queer about everything all the time, but in some ways, I feel as if state marriage equality just ends up making straight people feel good about their marriages when they still have hundreds of marriage-related privileges that gay people don't have.  But whatever.  I mean, it's obviously better than the alternative that California has chosen, which is, in turn, better than the alternative that, say, Arkansas and Florida have chosen.  This is not a particularly useful discussion topic.

My thoughte are that the family code (or wherever the marriage laws are) are now conflict with the constitution because the constitution 1) gives rights to everyone and 2) marriage is defined as a union between a man and a woman.  So, since much of the [family code] refers to "marriages" but they made that apply to a distinct subclass and majority (and homosexual is a suspect class!  yay!) the state cannot provide for marriages since that necessarily means granting some rights and not others to different people (a huge basis of the earlier decision.)

I realize there are some hoops here, but, essentially, the marriage laws are now unconstitutional.

eta - does that sound silly for quixotic?

That is why this was a constitutional amendment.  Previously, California had a /law/ banning same-sex marriage.  That law was declared unconstitutional on grounds of violating California's constitutional guarantees of equal protection.  Prop 8 was an end-run of sorts.  The  California courts can't very well declare part of the constitution 'unconstitutional'.  The only way I can see this being overturned would be a new Prop reversing the amendment, or a case going to the US Supreme Court, which might then rule California's new constitution as violating rights guaranteed by the US constitution.

Thanks for your thoughts, but I wonder if you could read my proposal and respond to it, instead.

I apologize.  I was unclear on your meaning.  That said, I'm not sure by what logic the marriage laws would be unconstitutional.  The laws themselves contain no discrimanatory language, correct?  And, not having read the Cali constitution, I'm assuming that it doesn't specifically enumerate any of the rights that stem from the marriage laws.  Which is to say, the laws don't seem to be restricting any constitutionally guaranteed rights.  Can a claim that one is not enjoying rights that stem solely from meeting criteria in a specific law be interpreted as an unconstitutional restriction of one's rights?  I don't know; I'm not terribly good with this stuff, though it interests me.

I have to admit it seems academic, since this will all be overturned fairly soon due to changing demographics.

The marriage laws are now facially discriminatory when viewed the lens of the CA constitution (they are providing rights to a certain subset of people - not allowed under CA law).  In regards to rights, the biggest issue is that rights are to be enjoyed by all (the result of case law and the gay marriage decision.) 

To the bolded: yes.  I'll think up an example soon enough.  (Giving benefits to a certain subset of people is basically the same as withholding benefits from the opposite subset.)
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Matthies

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Re: SFLSD: No on Prop 8.
« Reply #56611 on: November 05, 2008, 05:07:11 PM »
There's something here where, Prop 8 having passed, marriage is over.

Yeah.

Not to be a bitter queer about everything all the time, but in some ways, I feel as if state marriage equality just ends up making straight people feel good about their marriages when they still have hundreds of marriage-related privileges that gay people don't have.  But whatever.  I mean, it's obviously better than the alternative that California has chosen, which is, in turn, better than the alternative that, say, Arkansas and Florida have chosen.  This is not a particularly useful discussion topic.

My thoughte are that the family code (or wherever the marriage laws are) are now conflict with the constitution because the constitution 1) gives rights to everyone and 2) marriage is defined as a union between a man and a woman.  So, since much of the [family code] refers to "marriages" but they made that apply to a distinct subclass and majority (and homosexual is a suspect class!  yay!) the state cannot provide for marriages since that necessarily means granting some rights and not others to different people (a huge basis of the earlier decision.)

I realize there are some hoops here, but, essentially, the marriage laws are now unconstitutional.

eta - does that sound silly for quixotic?

That is why this was a constitutional amendment.  Previously, California had a /law/ banning same-sex marriage.  That law was declared unconstitutional on grounds of violating California's constitutional guarantees of equal protection.  Prop 8 was an end-run of sorts.  The  California courts can't very well declare part of the constitution 'unconstitutional'.  The only way I can see this being overturned would be a new Prop reversing the amendment, or a case going to the US Supreme Court, which might then rule California's new constitution as violating rights guaranteed by the US constitution.

Thanks for your thoughts, but I wonder if you could read my proposal and respond to it, instead.

I apologize.  I was unclear on your meaning.  That said, I'm not sure by what logic the marriage laws would be unconstitutional.  The laws themselves contain no discrimanatory language, correct?  And, not having read the Cali constitution, I'm assuming that it doesn't specifically enumerate any of the rights that stem from the marriage laws.  Which is to say, the laws don't seem to be restricting any constitutionally guaranteed rights.  Can a claim that one is not enjoying rights that stem solely from meeting criteria in a specific law be interpreted as an unconstitutional restriction of one's rights?  I don't know; I'm not terribly good with this stuff, though it interests me.

I have to admit it seems academic, since this will all be overturned fairly soon due to changing demographics.

The marriage laws are now facially discriminatory when viewed the lens of the CA constitution (they are providing rights to a certain subset of people - not allowed under CA law).  In regards to rights, the biggest issue is that rights are to be enjoyed by all (the result of case law and the gay marriage decision.) 

To the bolded: yes.  I'll think up an example soon enough.  (Giving benefits to a certain subset of people is basically the same as withholding benefits from the opposite subset.)

AA?

Speaking of which I was really expecting a flood of now that we havea black president everything is equal so we don't need AA anymore threads.
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pig floyd

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Re: SFLSD: No on Prop 8.
« Reply #56612 on: November 05, 2008, 05:57:24 PM »
Speaking of which I was really expecting a flood of now that we havea black president everything is equal so we don't need AA anymore threads.

Obama got into the white house because of AA!  Everyone knows it, so nobody will take him seriously! 

 :)
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Miss P

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Re: SFLSD: No on Prop 8.
« Reply #56613 on: November 05, 2008, 06:35:24 PM »
Can this work?

The link didn't work very well, but I found it through G.  I think that's the other (and much easier) way to go about things.

::crosses fingers::

I don't see how this works.  An amendment to the constitution can't be unconstitutional under the same constitution.  It modifies the constitution; the constitution accommodates that modification.

I think this defect would also probably bar Mu's proposed (much cleverer) challenge: under a holistic, purposive analysis, EP under the California constitution now means EP for gays and lesbians except with respect to marriage rights.

Nonetheless, I like Mu's idea a lot, and I think it could get some traction in some of the more liberal California courts.  The problems I see are as follows (aside from political fallout and my comment above):

(1) Having marriage laws, even if they are necessarily discriminatory, probably passes strict scrutiny because:
(a) Relationship recognition is important, as all the gay marriage cases make clear;
(b) There is a bundle of federal rights to which Californians can gain access through marriage, hence creating a compelling government interest in offering marriage to its citizens; and
(c) The discriminatory aspect of California's marriage law is as narrowly tailored as possible under California's constitution; without calling marriage "marriage," Californians wouldn't have access to the federal benefits.  Nonetheless, California allows almost everyone over 17 to get married with few restrictions (they just face restrictions about the partners of their choosing).  It also has tried to mitigate the discriminatory effect of having marriage laws by having domestic partnerships that mirror marriage.

(2) Marriage in itself may be a fundamental right (I think the cases say something a little different -- but I think the right wingers would argue it this way) and a state may therefore be required to provide its citizens some access to marriage.

EDIT
That's cool how you referenced a case.

Quote from: archival
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Julie Fern

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Re: SFLSD: Happy/sad.
« Reply #56614 on: November 05, 2008, 06:36:25 PM »
One would suppose that that prop 8 might control, but prop 8 merely defined what "marriage" is called.

And marriage rights aren't provided under the constitution, but rather through statutory law. However, equal protection rights are provided by the constitution (which is arguably greater under CA law than US.)

I totally get it that this is an out there in terms of legal argument. And, I agree. Someone's going to try it (if the whole unconstitutional to pass in the first place fails...and other stuff fails) and then we'll know.

julie not know neither cal. cons. nor even wording of prop 8.  just trying give you engagement you seemed want.

but games begin:  http://www.dailykos.com/storyonly/2008/11/5/125155/110/471/654479

Miss P

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Re: SFLSD: Happy/sad.
« Reply #56615 on: November 05, 2008, 06:39:38 PM »
but games begin:  http://www.dailykos.com/storyonly/2008/11/5/125155/110/471/654479

Oooh, I didn't know there was a difference between amendment and revision.  That changes my analysis of the strength of the various challenges somewhat.
That's cool how you referenced a case.

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Susan B. Anthony

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Re: SFLSD: Happy/sad.
« Reply #56616 on: November 05, 2008, 07:20:00 PM »
but games begin:  http://www.dailykos.com/storyonly/2008/11/5/125155/110/471/654479

Oooh, I didn't know there was a difference between amendment and revision.  That changes my analysis of the strength of the various challenges somewhat.

::crosses finger, lazy eye::

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mugatu

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Re: SFLSD: Happy/sad.
« Reply #56617 on: November 05, 2008, 08:19:59 PM »
One would suppose that that prop 8 might control, but prop 8 merely defined what "marriage" is called.

And marriage rights aren't provided under the constitution, but rather through statutory law. However, equal protection rights are provided by the constitution (which is arguably greater under CA law than US.)

I totally get it that this is an out there in terms of legal argument. And, I agree. Someone's going to try it (if the whole unconstitutional to pass in the first place fails...and other stuff fails) and then we'll know.

julie not know neither cal. cons. nor even wording of prop 8.  just trying give you engagement you seemed want.

but games begin:  http://www.dailykos.com/storyonly/2008/11/5/125155/110/471/654479

and I appreciate it!  Thanks!
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mugatu

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Re: SFLSD: Happy/sad.
« Reply #56618 on: November 05, 2008, 08:22:58 PM »
but games begin:  http://www.dailykos.com/storyonly/2008/11/5/125155/110/471/654479

Oooh, I didn't know there was a difference between amendment and revision.  That changes my analysis of the strength of the various challenges somewhat.

yeah, it's exciting.
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Miss P

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Re: SFLSD: Happy/sad.
« Reply #56619 on: November 05, 2008, 08:41:20 PM »
Mu, any thoughts on my argument about your proposed lawsuit?
That's cool how you referenced a case.

Quote from: archival
I'm so far from the end of my tether right now that I reckon I could knit myself some socks with the slack.