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Legal Point: Was CA Prop 8 So Sweeping That It Should Never Have Been On Ballot?

November 14, 2008

The movement of the legal community in California has been swift and sure since the outrageous passage on Election Day of Prop 8.  The very idea that voters should be able to cast a ballot over the question of whether to deny someone else their civil rights is laughable, if not for the fact it produces such monstrous results.  The rights of a minority shouldn’t be taken away by a popular vote.  Image Alabama citizens having the right to vote for integrated schools in 1954………………

The fact that the California Supreme Court is looking for an avenue to address this matter is news that we can at least look to as some sunshine over this matter.

The California Supreme Court has asked state Attorney General Jerry Brown to reply by Monday to lawsuits challenging the voter-approved ban on same-sex marriage – a sign that the justices are taking the cases seriously and will not dispose of them quickly.

Two groups of gay and lesbian couples and local governments led by the city of San Francisco filed the suits a day after the Nov. 4 election, when Proposition 8 passed with a 52 percent majority.

They argue that the initiative, a state constitutional amendment, violates other provisions of the California Constitution by taking rights away from a historically persecuted minority group and stripping judges of their power to protect that group. The couples’ suits contend that Prop. 8 makes such fundamental changes that it amounts to a constitutional revision, which can be placed on the ballot only by a two-thirds vote of the Legislature.

Brown has said he will defend Prop. 8 in court while also supporting the legality of an estimated 18,000 weddings performed under the court’s May 15 ruling legalizing same-sex marriage.

That ruling declared that state law defining marriage as being between a man and a woman violated the state Constitution. Sponsors of Prop. 8 contend that the initiative – which declared that only marriage between a man and a woman is “valid or recognized in California” – would invalidate all existing same-sex marriages.

The filing the court requested from Brown’s office will not address the ballot measure’s validity, but will focus instead on the initial questions of whether the justices should accept the suits for review – and, if so, whether they should suspend Prop. 8 while they decide the case, said the state’s lawyer, Christopher Krueger, a senior assistant attorney general. Suspending Prop. 8 would allow same-sex marriages to resume.

  1. November 17, 2008 11:51 AM

    Thanks Ferrell. I appreciate that.

    Have a good day.

  2. ferrellgummitt permalink
    November 17, 2008 9:43 AM

    Deke: First of all my apology for the post on Friday. I let my emotions got a little out of hand — alright way out of hand. Please accept my apologies.

    As to the constitutionality of this issue — isn’t this about granting licenses and to whom a marriage license will be given to and that is why it is in the courts and up for a vote?

  3. November 16, 2008 12:22 PM


    Thanks for writing, but now lets add some facts to your words.

    Thegovernment is obligated to treat all people equally under the law. There IS a major flaw in your thinking. Same-gender couples and families have 1000+ protections afforded to families that gay couples in civil unions do not. These include the rights of survivorship, inheritance, insurance, joint income tax filing, and a myriad of rights that many mixed-gender couples take for granted.

    It is also clear from your tone that fairness is not your goal here, but gay-bashing. Pretty sad.

    As to gay animals…..well there you are wrong too.

    Male big horn sheep live in what are often called “homosexual societies.” They bond through genital licking and anal intercourse, which often ends in ejaculation. If a male sheep chooses to not have gay sex, it becomes a social outcast. Ironically, scientists call such straight-laced males “effeminate.”

    Giraffes have all-male orgies. So do bottlenose dolphins, killer whales, gray whales, and West Indian manatees. Japanese macaques, on the other hand, are ardent lesbians; the females enthusiastically mount each other. Bonobos, one of our closest primate relatives, are similar, except that their lesbian sexual encounters occur every two hours. Male bonobos engage in “penis fencing,” which leads, surprisingly enough, to ejaculation. They also give each other genital massages.

    Again, thanks for writing……but please come with facts next time.

  4. jimbo permalink
    November 16, 2008 1:58 AM

    This whole thing has NOTHING to do with denying anyone their civil rights. THIS IS NOT A CIVIL RIGHTS ISSUE.
    The gays already have civil unions with give basically the SAME EXACT RIGHTS to them as marriage. This is about the Gay Mafia FORCING non-gays to VALIDATE their alternative, perverted lifestyle. Let me ask you a question? Has anyone ever seen gay dogs or gay cats or gay elephants? Of course not.
    Come on people, even the animal world knows its perverted.
    The people of California spoke loud and clear.


  5. November 14, 2008 4:02 PM

    To equate gay marriage and beastiality is beneath you.

    You know better. There IS NOTHING that will be harmed by allowing gay couples to marry. NOTHING….except bigotry will be slayed in this area. And lots of money will be made by the ‘wedding industry’.

    And the actual history of marriage is far different than most know….the American version is spelled out nicely in the chapter devoted to it in “A History of American Law’, the book which can be a dense read, and yet quite wonderful.

    As for the workings of marriage around the world over the thousands of years….again it does not match with the version that backers of Prop 8 wish it to be.

  6. ferrellgummitt permalink
    November 14, 2008 3:54 PM

    There is no place to stop once the Pandora’s box of the definition of marriage is opened. Historically, the definition of marriage has rested on a bedrock of tradition, legal precedent, theology and the overwhelming support of the people.

    After the introduction of marriage between gays, however, it will be supported by nothing more substantial than the opinion of a single judge or by a black-robed panel of justices. After they have done their wretched work, the family will consist of little more than someone’s interpretation of “rights.”

    Given that unstable legal climate, it is certain that some self-possessed judge, somewhere, will soon rule that three men and one woman can marry. Or five and two, or four and four. Who will be able to deny them that right? The guarantee is implied, we will be told, by the Constitution. Those who disagree will continue to be seen as hate-mongers and bigots. How about group marriage, or marriage between relatives, or marriage between adults and children? How about marriage between a man and his horse? Anything allegedly linked to “civil rights” will be doable. The legal underpinnings for marriage will have been destroyed.

  7. November 14, 2008 2:20 PM

    The scope of Prop. 8 was the definition of a single word.

    An initiative that constitutionalized the death penalty, after the state Supreme Court ruled it violated the state constitution’s cruel and unusual punishment clause, was far more sweeping. In fact, it was a matter of life or death for some.

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