T Nation

California Court Upholds Prop 8


If you followed oral arguments, this is not much of a surprise. And, it was the right decision - it wasn't a decision "for" gay marriage or "against" gay marriage, but rather a decision on the more important question of "who decides?".

Not only was the court right on the merits, I sense they knew that a ruling striking down Prop 8 would certify California as a banana republic. And it would have. No doubt we will see a political initiative attempting to reverse Prop 8 - precisely as it should be.

The ruling:


This issue remains a tempest in a teacup - I can think of 25 other issues that deserve priority over this political battle, and I am being charitable with that number. But, it is interesting that New York and now California - both liberal vanguards among states in the Union - recognize that the issue is a political one.


Excellent decision. As a judge you are bound to uphold the will of the people, particularly if the people amend the constitution. Amendments change the legal ballgame.


BUHAHAHAHAAHAHAH what retard. So you think because it is the will of the people it is right? Slavery was the majority back in the day so you think that was good? Saying that its the will of the people is dumb



California is a State that you have to be careful about labeling "liberal".

Yes...large portions of the Southern "Power Bases" of Los Angeles and San Francisco are decidedly liberal AND very vocal when it comes to social issues.

However, the North is far from being "liberal"...and contrary to popular belief, Latinos and Blacks tend to vote very conservatively when it comes to issues like Gay Marriage.




Well, the people spoke on this issue. And the court listened. Good for it. Now, the people are just going to repeal Prop 8 in a year or two. This is made possible by California's retarded referendum system and the ability to change the constitution at the whim of a bare majority.


Absolutely right, and excellent point. Prop 8 had tremendous support among black voters, even as they came out in record numbers for Obama (an ironic twist as well - the influence of Obama actually had a negative effect on prospects for gay marriage in CA).

Among other ironies is that while "gay marriage" is styled as the new "Civil Rights movements", the original Civil Rights warriors - Black Americans - are are the demographic bloc most solidly against it.


I think the proposition passed by a bare majority (52%) by a very effective and well-financed lobby against gay marrige. I also think that there has been a subtle shift in demographics and that those in favor of gay marriage will mobilize and campaign hard to repeal Prop 8. I would not be surprised if it's repealed within the next few years.


California IS a banana republic precisely because the friggin Constitution can be amended at the whim of a bare (uneducated) majority, entirely susceptible to public interest groups, smear campaigns, and whoever manages to scream the loudest at a particular point in time.


I've thought for some time now that the "easy" road with this issue is to say one is "for" or "against" it based on personal/religious grounds.

The much more difficult one is attempting to come to a decision based on the law and the Constitution.

Is marriage a "right" or a "privilege"?

Are you denying "life, liberty and the pursuit of Happiness" by not allowing a group to legally marry?

Is this "simply" a "moral" issue...a "legal" one; or is it both?

Tough questions.

Numerous other threads have discussed it.



And if I'm not mistaken...it's biting the State in the proverbial ass...



Absolutely. This was the right decision within the construct of their system. But their system is beyond fucked...


You'd have to first define what marriage is. Whether it be a right or privilege, it is only a right or privilege within the context of the definition.

You haven't been for over 200 years, and nothing has changed. Moreover, you can't feasibly let every "group" marry, or you nullify the very concept of marriage.

Both, I'd say.

Heh - an understatement, my good man.



Thanks, Bolt!

I always hope that you jump in on these types of Constitutional issues!



I didn't say traditional marriage is "good". I most certainly didn't say "slavery was good". Nor did I equate the two. I said it was an excellent legal decision, which as our resident lawyer jsbrook pointed out below, it was--it was the "right legal decision within the confines of the system".

When the system changes, the legal position should change as well. I would have said the same damn thing that you mocked me for if somehow an amendment had passed legalizing gay marriage and the courts decided in favor of them. Of course, in that case you'd have praised me. An amendment is, for better or worse, something that is now a part of a constitution...and judges have a sworn duty to uphold them.

Grow up.


ahhhh.. no it wasn't.


I continue to find it amazing that the idea that judges are supposed to strike down legislation that is "bad" on the basis that it is "bad" is going strong - and a great deal of the commentary I have seen (both formal and informal) lamenting the court's decision on Prop 8 is based on exactly that absurd approach.


It's surprising (to me anyway) how often, thoroughly, and widely it is neglected in this discussion that two people have whatever relationship between them that they agree to between themselves.

No one can take that away. No law need be made to make that the case.

The issue in question is not what people can have between themselves, but what OTHERS are required to do, or not required to do, regarding it.

It's not a question of gays being denied anything between themselves or being granted between themselves, it is whether others will have requirements placed on them about it.


Keep in mind that the majority just voted down a measure that would be necessary to save California's economy, and now the federal government is likely going to have to intervene.

If it is not okay for the courts to overturn the prop 8 majority vote, why will it be okay (by the citizens of Ca) for the federal government to intervene and do what the majority vote in California would not

I am not sure what to think about the decision, I just wanted to pose this question


I think that at least part of the problem is that people don't realize that Courts are often making VERY narrow decisions based on the Law.

People will often harp back to important Civil Rights decisions as having broad, social significance (which many did).

However, the Justices, even in those cases, were answering some very narrow, but highly significant, Constitutional Questions.

When those questions were asked, peoples prejudices and biases simply didn't hold up.



C'mon Bill. You are smarter than that. Your whole post underscores the importance of recognition by others as a legal matter. Aside from the camp trying force social recognition/equality (i.e. those insisting on 'marriage' as opposed to civil unions), this movement is all about legal recongition and benefits. Hospital visitation, tax issues, etc...Whatever people claim their relationship is, there is nothing they can do to compel third parties to recognize it as such without the force of state and federal law. Probably not the real issue in California as I belive they had all of the same STATE benefits as married couples alrady. But it is in all of the states where this is not the case. And is is for those pushing for federal, legal benefits.