Prop 8 Oral Arguments in CA Supreme Court [MERGED]

[Kulindahr]

The surest way to equal rights is voting for conservatives and Republicans

Hmmm.

May have been true in the time of Eisenhower and Goldwater.

Last time I voted for a Republican, at least above the local level, was...
um...
I'd guess you were in grade school at the time.


So I don't see what your comment had to do with me.

 

[Kulindahr]

No. The California case that was just decided is not moving the the federal court. A whole new case is being filed in federal court because the plaintiff there wants to raise a federal question.

Right. You can't argue state constitutional law in federal court. This case argues that proposition 8 and the ability of voters to take away civil rights in the California Constitution violates the US Constitution.

That's a subtle distinction that's lost on most people.

Well, yeah, you can, but it would have to be in a diversity suit. That's a whole different issue that I think it's probably better to postpone. It isn't really related to any of the gay marriage cases.

I don't get that..... "diversity suit"???

 

[Kulindahr]

It's hard to word what I meant correctly. You can argue for and against the merits in a state constitution in federal court based on federal law or federal constitutional law, but you can't hold the state constitution to apply over federal law or federal constitutional law.

There's an area in which state constitutions should trump the federal constitution: in rights and civil liberties. A state constitution's granting greater protections to individual liberties should always stand against any federal constitutional or other restrictions.

 

[construct]

I don't get that..... "diversity suit"???

A diversity suit is a suit in which all the plaintiffs are residents of different states from all the defendants. The amount at issue must be more than $75,000, and the case does not raise a federal question. Federal courts have jurisdiction in those cases.

 

[construct]

There's an area in which state constitutions should trump the federal constitution: in rights and civil liberties. A state constitution's granting greater protections to individual liberties should always stand against any federal constitutional or other restrictions.

Well, not always. In the case of preemption, the federal law will control.

 

[hotatlboi]

Well, not always. In the case of preemption, the federal law will control.

Technically yes, but in practice only as far as there are enough resources and will on the part of the feds to enforce it. Marijuana in CA is a good example.

 

[construct]

Technically yes, but in practice only as far as there are enough resources and will on the part of the feds to enforce it. Marijuana in CA is a good example.

Yes. The Raich case is the one I was thinking of at the time. Under Attorney General Reno the case didn't arise because Reno chose not to enforce the Controlled Substances Act against medical marijuana. Attorney Generals Ashcroft and Gonzalez did. I think one could also cite environmental protection laws.

 

[Kulindahr]

Well the federal system of government is still necessary. Take the South for instance, that despite the motto of "southern comfort," really doesn't know how to treat people...that is people who aren't white, christian, or straight. It would have taken until 1991 for public opinion to turn in favor of interracial marriages for instance, if such a thing as a referendum were required to make it legal.

I didn't say it wasn't.
And your example is the opposite of what I said -- that when a state's constitution protects more liberty, it should trump the federal one.

Actually, given that, I suppose the way to say it would be that whichever constitution protects more individual liberty trumps the other.

 

[Kulindahr]

Anyway back to the spirit of this thread...

I just received this email from Equality California. "In a recent survey of EQCA members, over 69% of you supported going back to the ballot in 2010 and provided very persuasive arguments for 2010 versus 2012. We agree that 2010 is the right time—if all of us do our part.

Many of the details listed on their website on this page: http://www.eqca.org/site/pp.asp?c=kuLRJ9MRKrH&b=5190603

The aims of EQCA are to keep attention focused on the marriage issue and maintaining momentum, by supporting a 2010 referendum. I believe Yes on Equality has until August 17 to gather 700,000 signatures now.

Interesting possibility:

2010 sees Prop 8 overturned, leaving the new suit filed by those two prominent attorneys moot.

Now, if those attorneys believe that 2010, or even 2012, will see 8 overturned, then what they're really up to is... keeping the issue in the news???

 

[Kulindahr]

Yes. Keeping this issue alive is absolutely necessary for the gay marriage movement. When people think about it, they will see discrimination.

So you think that's what they're up to?

 

[Kulindahr]

The Publicity is good.

LOL

I agree, but that doesn't answer the question.

 

[hotatlboi]

Well, it will probably be a minimum of 3-4 years before this case is ultimately decided by the Supreme Court if it gets there. Maybe that will be enough time to convince the 1 or 2 people we would need. Hopefully we will be a lot farther along at the state level by then too so they can clearly see where things are going.

 

[Kulindahr]

I have no idea. Ask them not me. My opinion is they think they can win.

Could be.
It would tell me more if I knew if they're being paid, and how much, plus was the case their idea, or the couple's.

Given their star attraction (for attorneys, that is) level, I could go either way on their motives.

If nothing else, it will give us on JUB another thing to track.

 

[Kulindahr]

Well, it will probably be a minimum of 3-4 years before this case is ultimately decided by the Supreme Court if it gets there. Maybe that will be enough time to convince the 1 or 2 people we would need. Hopefully we will be a lot farther along at the state level by then too so they can clearly see where things are going.

If those in California can get those apathetic young voters, the ones who effectively voted to support Prop 8 by staying home, off their asses and to the polls next year, the case might not even get considered by the Ninth -- it depends on their backlog, whether they fast-track it, how many briefs are submitted, etc.

I'd rather see every last college student, recent grad, and those in their first couple of years of their new jobs get their asses to the polls and deep-six Prop 8 with a lopsided vote, like 61% - 38%.
Then they should get together with conservatives and change the California constitution so it would take a majority of all registered voters to amend it....

 

[Kulindahr]

Where are our legal beagles on the issue of whether a vote overturning Prop 8 would render this new case moot? I think it would, but not having any law school under my belt (just some college courses in education areas 'cause I was studying to be a teacher, and some in constitutional aimed at how to deal with recalcitrant authorities) I'm going a lot on a very thin layer of reading.

 

[construct]

Where are our legal beagles on the issue of whether a vote overturning Prop 8 would render this new case moot? I think it would, but not having any law school under my belt (just some college courses in education areas 'cause I was studying to be a teacher, and some in constitutional aimed at how to deal with recalcitrant authorities) I'm going a lot on a very thin layer of reading.

As to the mootness question, it depends on what the plaintiffs argue. If they have to challenge DOMAm then a California constitutional amendment might not answer all the questions. It wouldn't answer any issues related to federal benefits for example.

On the other hand, if state marital benefits are the only relief the plaintiffs are asking for, then there would no longer be a controversy for the court to resolve. So, the plaintiffs would then withdraw their complaint, or the court would grant summary judgment for the defense which would have the same effect. Depending on where the case is in the process, it might be resolved by granting a Rule 12(b)(6) motion for the defense, but whatever the procedure, the case would go away.