CA Voters - What you can do to repeal Prop 8 in 2010

[essentialsaltes]

Sign the Petition to get it on the ballot. Even if all you can do is to print out the PDF, sign it yourself, and mail it to their offices, that's a stamp well spent.

Comments

Re: 2012

[shad-0.livejournal.com]

I also sense a certain sarcasm in your opening line, and from that I infer at least a touch of hostility.

ACK! No no no no no! Not at all! First of all, I wholeheartedly agree with you that precedents -- especially U.S. Supreme Court precedents -- are of vital importance in trying to determine the constitutionality of anything. Second of all, I apologize profusely if any of my phrasing has led you to believe that I feel any hostility toward you, because I absolutely do not.

I did not select these quotes because I think that any of these cases constitutes binding precedent, or even particularly persuasive precedent, on the specific issue of the constitutionality of Proposition 8. I understand that, as you say, they are all distinguishable on various grounds. However, the quotes nevertheless represent explicit statements of the policy of the Supreme Court of the United States of America on issues that this particular constitutional question raises, including whether marriage is a fundamental right and to what extent the government can impose limits on that right.

(For example, the Lawrence quote demonstrates that the preceding quote from Casey -- stating that the constitution protects "protection to personal decisions relating to marriage" -- applies equally to homosexuals as well as heterosexuals. The fact that Lawrence did not itself involve same-sex marriage doesn't change that statement.)

If there's a due process argument to be made against Prop. 8, then by all means please articulate that and I will consider it.

I'm arguing equal protection primarily, myself, but I guess the due-process argument would be based on the assertion that the fundamental right to "liberty," of which the government cannot deprive anyone without due process, includes the right to marry the person one chooses without the government getting to decide whether it approves of one's personal choice on the matter.

I do not believe that asking the judiciary to overturn Prop. 8 is necessary, or proper, or even wise.

I agree with your conclusion... but it's because I don't think the judiciary is prepared to overturn Proposition 8, and I think that asking SCOTUS to consider the issue is likely to establish bad precedent that will take decades to overturn.

Here's what I think is the strongest argument for your position, and it's not one you've really hammered on: that denying the right to same-sex marriage ought to fail the rational basis test, not just strict scrutiny or intermediate scrutiny. ... If instead you feel it's weaker than other arguments, I'd like to know why that is.

I did mention it in that post I made a couple of days ago trying to predict the most likely outcome if the case actually made it to the Supremes. I'm not "hammering on" it just because it is so difficult to persuade a court that a law violates the equal-protection clause under the rational-basis standard. Sure, I personally don't see any rational relationship between Proposition 8 and any remotely permissible governmental purpose, but that's me, not the Supreme Court.

As I mentioned before, I know that at least two of the Justices, Scalia and Thomas, believe that "moral disapproval" is a valid governmental purpose, so that a law prohibiting homosexual marriage because a bare majority of the people in California disapprove of homosexuals would be entirely proper to them. My assumption is that Roberts and Alito would agree, so they'd need to persuade just one more Justice to concur in the result -- even if not in the specific rationale for it -- to decide the case right there.

Continued...