Wednesday, November 19, 2008

Prop 8 Unconstitutional? But it changed the constitution didn't it?

I've seen this at least once before. Here's an example in Georgia.

May 17th, 2006 - ATLANTA (Reuters) - "A Georgia judge on Tuesday struck down a ban on same-sex marriage that was approved by voters in 2004, saying it violated the Southern state’s constitution."


You stupid voters. You don't get to change the constitution. (Thanks to "Different River" for preserving the record.)

It came as no surprise to me that after heterosexual monogamy was stricken down as the only form of marriage in California, that the voters would then get a chance to install a constitutional amendment. They did in the form of Proposition 8 and as detailed in a recent post, when Prop 8 passed, all unholy hell broke loose.

As you know, I continue to be torn. I am by far and away not a gay marriage advocate, believing as I do that no human law can create a joining that only God can, and that only God can define. Is it an effrontery to pretend and declare that gay "marriage" can occur? It certainly is, but it cannot occur.

Having also stated for the record, recently, and several times that I would have voted against Prop 8 because I also think its definition of marriage is too narrow, it's still the legitimate law of the state of California. So be it. But that is not going to go down well for Prop 8 haters. They went to court to declare a California Constitutional Amendment, Unconstitutional.

The Mercury News - Silicon Valley - "The legal challenge maintains that Proposition 8 is invalid and takes away a 'fundamental right' from 'just one group — lesbian and gay Californians.' The petition argues that the state constitution cannot be amended if it violates other constitutional rights."


Now wait a minute. Clearly what has just been said here with Prop 8, is that as defined by the California Constitution, duly and properly amended, marriage is not a fundamental right or available in all situations. It is a right for eligible men and eligible women should they wish to marry a member of the opposite sex.

Some situations that legal marriage in California is NOT a fundamental right would be if one of the parties was too closely related or if one of the parties was married already or if one of the parties was of the same gender or if one of the parties was too young or perhaps, incapacitated.

I'm not for the overturning of Proposition 8. It's the law and besides I don't live in California. Judging a constitutional amendment to be unconstitutional is the ultimate in lawlessness. It also sets up courts as absolute judges of what the constitution says, and apparently, if we make an amendment to make it say something judges don't like, they'll just change it back to a form that they did like.

Ridiculous? Yes, but the California Supreme Court plans to hear arguments.

"The California Supreme Court moved swiftly Wednesday to tackle the latest legal showdown over gay marriage, agreeing to consider three lawsuits that challenge the legality of Proposition 8's abolition of same-sex weddings.

At the same time, the state's high court rejected a bid to put Proposition 8 on hold while the legal struggle unfolds, postponing indefinitely any new wedding vows for gay and lesbian couples. The Supreme Court indicated it is likely to rule by June."

So, about 7-8 months. What do you wish to bet that they will, after all the noise has died down, rule the newest part of the constitution, unconstitutional? Prop 8 proponents will return with a new amendment addressing the issue, but then are likely to run into the noise that was the basis of the Georgia decision. That the amendment addresses too many subjects.

By the time Prop 8 proponents get to the stage with the two amendments that need to be passed to pave the way for Prop 8, I'm guessing the way the court demands it be phrased will be so scary to the average voter that they will reject the one amendment that the new Prop 8 will need to be accepted into the California Constitution.

7-8 months. Do you think that by the time the new Prop 8 gets written and it's accompanying amendment that makes it constitutional that Prop 8 opponents won't have moved the electorate that last 2.3 % necessary to simply defeat the measure at the ballot box?

Think also about this. If the amendment is declared unconstitutional in such a broad way, there will be no barrier to polygyny in California. How could there be? They would have just kicked a part of their constitution out on the basis that it conflicts with the principle also expressed in their constitution of the fundamental right to get married, no matter who you are. How could you then stop a married man from marrying again? Isn't it a fundamental right?



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2 comments:

ztgstmv said...

I think the whole thing is insane. What is "marriage" anyway, but a form of expression. Of course it's a fundamental right, but not in the way everyone thinks.

At any rate, as long as it's accepted that Marriage, whatever that is, is a fundamental right, the Supreme Court of the USA will strike down all these bogus laws restricting marriage, otherwise, as you say, the stupid public will have allowed a contradiction to occur in their own constitution.

Ultimately, to avoid all these cultural showdowns, the government should just get out of the business of regulating people's private, personal business.

The Pharisee said...

Ideally, what you say last, that government should just butt out is best. I simply don't think they will though. One of the first things that would have to go before they butt out would be the income tax system. So as a practical matter I don't see it happening.

Failing a sea change in the tax code, I would prefer simply to alter the landscape of marriage by having contracts, which would be registered with whatever locality a marriage occurred in. What they'd amount to would be prenups. We'd have to let any adult enter into them.