Posted on 12/21/2008 9:11:48 AM PST by kaehurowing
California’s Rush To Judgment on Same Sex Marriage
December 20th, 2008
By JERRY REMMERS
Only in California can the bizarre become the norm. In a spate of a few hours Friday afternoon, briefs were filed with the state Supreme Court challenging, supporting and extending a ban on same sex marriages. Backers of Proposition 8, the initiative that bans same sex marriage, petitioned to nullify the 18,000 marriages conducted after the high court voted 4-3 approving such nuptials.
State Attorney General Jerry Brown countered with a brief indicating he could not support the proposition because “the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.”
Brown’s argument represents a curious legal theory as well as a reversal when he announced after the Nov. 4 election he would defend the law. Prop. 8 passed by a 52-48 margin.
But in his filing, Brown, who personally supports same-sex marriage, said the California Constitution protects certain rights as “inalienable.” Those include a right to liberty and to privacy, which the courts have said includes a person’s right to marry.
The issue “is whether rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.”
To take away an “inalienable” right would establish a “tyranny of the majority,” which the Constitution was designed, in part, to prevent, he wrote.
Opponents of gay marriage offered a sharply differing view of the case.
The brief, filed by the Protect Marriage coalition, told the justices the law “commands judges — as servants of the people — to bow to the will of those whom they serve — even if the substantive result of what the people have wrought in constitution-amending is deemed unenlightened.”
The two briefs also disagreed about the fate of the estimated 18,000 same-sex marriages performed before the election.
Brown argued that Proposition 8 was not written to be retroactive and that the marriages should remain valid. Protect Marriage argued that no same-sex marriages should any longer be recognized.
The Supreme Court justices have indicated they will hear arguments in the case as early as March.
In a landmark ruling in May, the court ruled that the guarantee of equal protection in the state Constitution required that same-sex marriage be treated the same as heterosexual marriage.
Santa Clara University law professor Gerald Uelmen, an expert on the state high court, said Brown’s argument “turns constitutional law on its head.” Uelmen said he was unaware of any case law that supported Brown’s theory.
Goodwin Liu, associate dean and professor of law at UC Berkeley’s Boalt Hall School of Law, said it was “extraordinary for the chief law enforcement officer of the state to decline to enforce a law — even on the grounds that it is unconstitutional.”
“The chief law enforcement officer of the state is charged with enforcing laws, even laws with which he disagrees,” Liu said.
Brown, who served two terms as governor in the 1970s, is exploring running for the office in 2010. His sometimes quirky view of the state earned him the nickname of Gov. Moonbeam.
With the passage of Proposition 8, appears people are trying to take back their state from the hands that have ruined it. More power to them.
Actually, what is po’ing a lot of Californians is that we’ve vote down homosexual marriage twice and we’re getting tired of having this argument.
Jerry Brown should be impeached for dereliction of duty.
They better be dug in for a long fight. Losing an election, a court decision, whatever, does not signal loss to liberals, because they don't really believe in the rule of law or even democracy. They lost on Prop 8, but here they are, just changing tack. They relentlessly go and scream and whine and pout until they get their way. It's high time we start screaming back.
MM (in TX)
when opponents want something the strategy is to keep pushing it in the nose of the general public to wear them down. In this area, certain people wanted a new arena built with taxpayer funds. the initiative came before the voters at least 6 times in various ways (ex. splitting the proposal into two parts) until the people finally got tired and voted for the new arena. another time, certain people wanted a town incorporated. after using scare tactics, and again at least 6 times the proposal went to the voters, the final time a special election was held where the supermajority (60%) rule didn’t apply. It passed. Out of a county with over 300,000 registered voters, a little over 9,000 voted against and just a little bit more over 9,000 voted for it. It was a shame!
Fourty years ago, marriage was declared unnecessary. Living together was ok as long as you were sincere. The marriage license was just a piece of paper. The shack up became normal.
Today, marriage is the most important thing you can do, but only if you are gay!
Will proposition 8 be canceled, declared null and void, revoked, etc? California is backward when considering the will of the people. Watch this vote go away.
What a pant load, there is no "right" to get married, it's something a man and a woman do.
Not really, they've refused to fight for Prop. 187 as well.
Gays DO have the right to marry, Jerry. Just like everyone else. A man can marry a woman, a woman can marry a man. Because Jerry, that is what marriage IS.
And this is something we on the right must be ready for and resolved to keep fighting for, even after we have a win. we have to keep fighting to KEEP the win. That’s where we have historically been weak, not being vigilant enough and thinking the fight is over.
They’re not giving up, we can’t ever give up either.
Article 16
1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
And, as any good Democrat can tell you, we can't go against the UN, now can we?
First, let me say I understand your point of the libs not going against the UN.
However, let’s not lean on what the heck the UN says about anything, as most of the time we oppose it ‘cuz we know what the UN is about and what the vast majority of them are.
Second, any good ACLU attorney will pick that paragraph apart for pro-gay marriage. They have the right to marry- it doesn’t explicitly say “each other”. Gays are men and women. Gays can have families, they can adopt. Two gay men and two gay women can be considered family in some places. It says gays are entitled to equal rights to marry.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
“Forty years ago, marriage was declared unnecessary. “Living together was ok as long as you were sincere. The marriage license was just a piece of paper. The shack up became normal.
Today, marriage is the most important thing you can do, but only if you are gay!”
This comment is a classic! Pass it on!
Yes. He is suppose to uphold state law. I’m calling the aholes office tomorrow. I’m sure that will fix it.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
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