Prop 8 Has Been Overturned

[Levin]

A Constitution is the fundamental expression of the will of a people.

"We the People of the United States, in order to form a more perfect union . . . " Now, were there people who voted not to ratify the constitution? Of course. Was the ratification vote close in some states? Absolutely. Were there articulate opponents to ratifying the Constitution? Very articulate. Was there a large section of the population that couldn't even vote on ratification? Ask your landless, female, or black ancestors. Does that mean that the Constitution is not an expression of the Will of the People? If there is anything that is considered an expression of such in this Nation, it is that document.

"The Will of the People" does not mean unanimity. And as a lawyer, UD, you should know that when used in the context of discussing the founding charter of a society's self-government, "will of the people" carries with it an attached meaning.

On Robin's point that the Terminator and Brown get to decide whether the California Constitution conflicts with the US Constitution, that is not their perogative. They took an oath to uphold both, and until a provision of the California Constitution is deemed to be preempted by a provision of the US Constitution through the final appeals process, then their oath obligates them to uphold the California Constitution. Once SCOTUS either denies cert to a 9th Circuit decision, or rules for itself, there is no final determination.

Forget about Prop 8: this is about The Rule of Law.

[LA Ute]

First, it was my characterization of LA Ute's comment. ask him (He might say it is an improper attempt o avoid the process that gives legitimacy to a result, especially in light of the majority vote in favor of prop 8, but I shouldnt put words in his mouth).

Second, at least you do agree with the characterization. You took a rather comabtive approach in doing so, but you do agree with it.

Yes. Isn't that what I said???

[UtahDan]

Initiatives can be a pain and can produce odd laws, but on balance I have decided they are a necessary evil. In California they began during the Robber Baron era, when guy like Leland Stanford controlled the state legislature. Hiram Johnson, a Teddy Roosevelt type Republican and CA governor, was the reformer who got the initiative process into the state constitution. It is a safeguard against elites who gan control of the government.

It is interesting that you say that the two sides seem so far apart and so entrenched. It is apples and oranges but my state is not that way at all. In fact we have a pair of Senators in Webb and Warner who are democrats but anything but liberal. Our state house is quite conservative but Warner as a Democrat governor was very popular. I wonder what would happen if the parties in my state didn't any longer have to do so much compromising and could just use advocacy groups to use the ballot initiative like a legislative session:

[ame="http://en.wikipedia.org/wiki/List_of_California_ballot_propositions_2000%E2%80% 932009"]List of California ballot propositions 2000–2009 - Wikipedia, the free encyclopedia[/ame]

[BlueHair]

I believe in the rule of law, but I take solace in knowing at least the outcome was favorable. If there was some kind of rule broken, I'm sure it will be corrected.

Why is it so easy to get an amendment passed? Having one vote over 50% seems way too low. It should be at least 2/3 or 3/4. I would accept 3/4 as "the will of the people".

[RobinFinderson]

Levin, didn't prop 8 STOP being part of the state constitution the moment judge Walker ruled, and therefore accepting the ruling, as opposed to dumping more state resources into its defense, stopped being a matter of defending the constitution? It just doesn't seem all that far fetched to think that a couple of state leaders, if given the legitimate opportunity, would want to distance their reputation from what is doomed to be the ignoble legacy of prop 8. If the voters were to narrowly define the word 'religion' in such a way to preclude religious protections for Mormons, and if a pair of elected officials had a similar opportunity to kill such an initiative, I'm sure most folks here would praise such a move.

[Jacob]

Levin, didn't prop 8 STOP being part of the state constitution the moment judge Walker ruled, and therefore accepting the ruling, as opposed to dumping more state resources into its defense, stopped being a matter of defending the constitution? It just doesn't seem all that far fetched to think that a couple of state leaders, if given the legitimate opportunity, would want to distance their reputation from what is doomed to be the ignoble legacy of prop 8. If the voters were to narrowly define the word 'religion' in such a way to preclude religious protections for Mormons, and if a pair of elected officials had a similar opportunity to kill such an initiative, I'm sure most folks here would praise such a move.

Irrelevant. That's not what happened here. But even if your hypothetical were the case, I agree with Levin's analysis of the duties of a state's chief attorney or governor. Especially if it were the case (and it probably is not) that the only way for the people to have their argument heard were by his appeal.

[Jacob]

I believe in the rule of law, but I take solace in knowing at least the outcome was favorable. If there was some kind of rule broken, I'm sure it will be corrected.

Why is it so easy to get an amendment passed? Having one vote over 50% seems way too low. It should be at least 2/3 or 3/4. I would accept 3/4 as "the will of the people".

You believe in the rule of law, as long as you agree with the outcome. Got it.

[RobinFinderson]

Irrelevant. That's not what happened here. But even if your hypothetical were the case, I agree with Levin's analysis of the duties of a state's chief attorney or governor. Especially if it were the case (and it probably is not) that the only way for the people to have their argument heard were by his appeal.

But the people/state's arguments WERE heard, and found to be unconstitutional by someone whose job it is to make just such a determination. As soon as it was ruled to be unconstitutional, it immediately stopped stopped carrying the weight if law, barring a stay of the ruling, no?

Here is what I don't get... Every day the AG decides not to dump state resources into the prosecution of cases where the evidence isn't strong enough to guarantee the reasonable certainty of conviction. Many known rapists have walked for this reason. It sucks, but that is the state's prerogative, especially when the purse strings are tight. Defendants decide not to appeal the sorts of things all the time.

[LA Ute]

It is interesting that you say that the two sides seem so far apart and so entrenched. It is apples and oranges but my state is not that way at all. In fact we have a pair of Senators in Webb and Warner who are democrats but anything but liberal. Our state house is quite conservative but Warner as a Democrat governor was very popular. I wonder what would happen if the parties in my state didn't any longer have to do so much compromising and could just use advocacy groups to use the ballot initiative like a legislative session:

List of California ballot propositions 2000–2009 - Wikipedia, the free encyclopedia

The political system in California is really broken. And not in a partisan way.

Regarding your relentlessly cheeky comments about initiatives, don't make me come out there again!

[RobinFinderson]

Irrelevant. That's not what happened here. But even if your hypothetical were the case, I agree with Levin's analysis of the duties of a state's chief attorney or governor. Especially if it were the case (and it probably is not) that the only way for the people to have their argument heard were by his appeal.

And btw, where does my characterization fall short of describing the result?

[SoCalCoug]

The political system in California is really broken. And not in a partisan way.

And honestly, to me, the passage of Prop. 8 in the first place is a great illustration of that.

[SoCalCoug]

Of course not. The US Constitution is the Supreme Law of the land. But Prop 8 is the expressed will of the people of California, insofar as it is consistent with the US Constitution. That latter question has not been fully resolved, and won't be until the highest court either resolves the issue or refuses to hear the case.

So do you believe that only the U.S. Supreme Court can "fully resolve" any constitutional question? Why do we have the other courts, then? Why not just submit everything directly to the Supreme Court?

I think someone will find a way to get this to the 9th Circuit, in any case.

[Jacob]

And btw, where does my characterization fall short of describing the result?

Brown and Arnold didn't make their decision after Walker's ruling, they made it long before. Before the trial.

Further, they have the opinions of many more judges who have ruled the opposite of this radical Walker guy. Their own supreme court ruled that there was no constitutional problem with Prop 8.

Your hypo is not remotely similar to the facts. This has nothing to do with a governor deciding that a federal court judge made the right decision. He made his decision long ago, despite so many legal opinions to the contrary.

[All-American]

So do you believe that only the U.S. Supreme Court can "fully resolve" any constitutional question? Why do we have the other courts, then? Why not just submit everything directly to the Supreme Court?

I think someone will find a way to get this to the 9th Circuit, in any case.

I think there is a good argument to be made that only the US Supreme Court can "fully resolve" THIS constitutional question, the likes of which they've never before addressed. But I don't need to try out the merits of that argument to observe that any case has not reached its final termination until the litigants exhaust their options to pursue the case, either by ruling from the highest court, an appellate court's refusal to hear a case, or expiration of the time frame in which it is permissible to file an appeal.

[LA Ute]

And honestly, to me, the passage of Prop. 8 in the first place is a great illustration of that.

I disagree, because Prop 8 was seemingly the only way the popular will could actually be expressed. You may be projecting your personal views about Prop 8 on the process. The run-up to Prop 8 was undeniably a circus:

• Prop 22 is passed as a statute by a big margin in 2000 (with the exact same language as Prop 8).

• Despite the obvious popular wishes of the overwhelming majority of voters, the Legislature, composed of a permanent gerrymandered majority of very liberal Democrats and a permanent gerrymandered majority of very conservative Republicans (now there's a recipe for success!) passes same-sex marriage not once, but twice.

• Arnold vetoes both bills, saying the matter should be decided by initiative. (He later, um, changed his mind about that.)

• The California Supreme Court decides In re Marriage Cases and overturns Prop 22 based on a newly-discovered right to gay marriage in the State Constitution.

• Prop 8 is passed as a State Constitutional amendment to overturn the State Supreme Court decision.

I recognize that reasonable people can disagree about this, but I don't think the above history supports the conclusion that Prop 8 itself is an illustration of the problem. It results from the problem, IMO. This is a history of elites trying to frustrate the popular will. And yes, I know about the tyranny of the majority and all that, but it seems to me that here, the tyranny is not on the majority's side.