Question about Prop 8

[JonLP24]

I simply don't understand it from a legal perspective. I don't understand how people can vote on supreme court decisions? I have no idea how California state law works but it doesn't make since that a supreme court makes a decision that someone doesn't like so they put it up for vote. I thought a supreme court was there to make decisions even if they might be unpopular but what they deem as right. It just takes me back to when they decided that interracial people were allowed to get married, I imagine if they put it up on a proposal during an election it would've failed because I imagine, at the time, interracial marriages were unpopular. To me something about it doesn't feel right.

That is the legal question. Other questions is the #1 opponent argument of this is "don't redefine the term" what does that mean? The fact that you say for example you are man you are only allowed to marry a woman sounds like pure discrimination to me based on gender. Who defined it in the first place? My guess is the bible, if they are using the bible then what about separation between church and state? Also atheists and anyone who isn't religious is allowed to get married so getting married isn't always a spiritual decision. Another thing I can't understand is the passion and vitriol against it. It doesn't concern you(talking to them). Anyways, we as country have outlawed slavery, gave women and minorities the right to vote, civil rights, etc even when it was unpopular. I can't say when but someday as a nation we will grow up and allow all citizens the right to marry.

[nichomachus]

1. I don't think they can -- and that's what we hope the court rules

The argument before the court is that Prop H8 changes a fundamental part of the constitution and can't be done by ballot question.

The court basically rules whether something is in line with the constitution. The constitution can be changed at a fundamental level only through constitutional convention. Propositions can be used to make additions to the constitution that don't affect the basic structure.

[JonLP24]

3. Exactly

Judges are experts in law and so they should be the ones that makes these type of decisions. It just didn't make sense to me how something like a law decision made by judges can be overturned by people based on popular vote.

[Idealism]

2. The problem here, as I am led to believe,

is that this proposition was worded differantly than the previous one that was stuck down as unconstitutional. It now has to be ruled on by the state supreme court, if they will accept the case, in order for this instance to be struck down or not. They do not have an obligation to do so, however, as judicial review is an option, not a guarentee in the court system. I hope the courts act with haste because they are the avenue that must bring about this social progression, just like they did in Brown v. Topeka Board of Education I and II.

[JonLP24]

5. Thanks for you response

That answers my question and added some clarity to my confusion. My state had one of our own proposals that passed(Arizona). It was about 99(for) to 1(against) campaign for the proposal so I knew ours would pass. The commercials had heartwarming music and showed a large family and ended "vote yes for marriage" The propaganda was sickening.

[nichomachus]

6. The court was asked to block the ballot question

They responded that "we're not going to rule on this yet."

A court spokesperson yesterday said that the court could rule as early as this week.

They've been waiting for this case.

[EFerrari]

4. Iirc, the prop was drafted BEFORE the court ruling. n/t

[JonLP24]

7. I did not know that

I thought the prop was drafted in response to the supreme court decision.

[EFerrari]

9. I didn't know that either until reading about it here on DU.

:)

[FreeState]

10. The signatures were gathered before the Court ruled - however the signatures were not delivered

until after the court had ruled - so the law had already been established when the petition was delivered to the Secretary of State.

[ddeclue]

8. The voters weren't "voting about a Supreme Court decision"

The Supreme Court was ruling about California law.

The voters were voting to change California law.

The courts don't make law they rule on it.

Doug D.

[JonLP24]

11. That is what I meant

"The Supreme Court was ruling about California law." I'm aware of that, that is what I meant by "supreme court decision"

However your other points clear some things up. I know supreme court judges don't make law but I was under the impression that the ballot proposal was to overturn the decision made by the judges. I know my post wasn't written to exactly what was going through my mind.

[stopbush]

12. Actually, the judiciary establishes law through its rulings.

That's the very definition of "case law."

A law that is passed (ie: made) by a legislature may be ruled unconstitutional by a court. A public initiative can also be ruled unconstitutional. The courts are the arbiters of what is legal and what isn't.

The judiciary does not propose laws, so they don't "make" laws the way a legislature does, but they do establish law with their rulings.

The CASA has established that the civil right to marriage is available to gays as well as to straights. Prop 8 runs afoul of already established law. Ergo, it must be overturned.

[ddeclue]

13. I'm NOT an attorney but that's not right....

The courts rule on the law but laws can then ALSO subsequently be passed to overturn court precedent (case law). Their previous ruling is NOT "established LAW" it is established PRECEDENT and is subject to being overturned by the legislature (or in this case by referendum).

If the CA Supreme Court wants to overturn Prop 8, they can't do it on the basis of their previous ruling they have to do it in the light of the new prop 8 law and whatever they can take from the CA constitution, US Constitution and Federal law and precedent.

I think Loving v. VA, 1967 is the best place to start...

Doug D.