Wednesday, August 04, 2010

Prop 8 overturned

As you've no doubt read by now, a federal judge on the California Supreme Court has ruled that Proposition 8 - which "banned" gay marriage in the state after it had been previously legalized - was a violation of the U.S. Constitution, specifically the due-process and equal-protection clauses. The case was heard via a legal challenge filed by lawyers Ted Olson and David Boies, a liberal and a conservative who teamed-up specifically to bring Prop8 down. Funny story about that: Do those names together sound familiar? Well, they were opposing counsels in Bush v. Gore in 2000. There's a movie in there somewhere...

Says the ruling: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples."

The ruling, crucially, does not automatically "reinstate" the original legality of gay marriage in the state, and the decision will almost-definitely be appealed or otherwise challenged. So on to the Supreme Court we go. Anthony "Swing Justice" Kennedy is about to have a VERY full inbox.

In any case, a landmark Civil Rights decision and unquestionably reason to celebrate for gay marriage supporters - unless of course you're a Democrat up for re-election. See, they're having a HORRIBLE night because they know that the innevitable homophobic backlash is going to give Republicans a big adrenaline shot. It'll also play BIG with the "Tea Party" because it's a textbook example of Big Government overturning the will of The People... or, rather, that's what it might look like if you're the sort of person who regards cosplaying as Sam Adams and shouting about Kenyan birth-certificates at a largely-disorganized protest rally as being roughly-equivalent to a Constitutional Law degree ;)

Incidentally, if there ARE any "Tea" folks reading this who're feeling the pangs of righteous anger about this for whatever this week's variation on "I don't hate gays but _______" rational is; perhaps you ought take to heart these words from your movement's Patron Saint. No, not the snowbound hillbilly, the other one:

"Individual rights are not subject to a public vote: a majority has no right to vote away the rights of a minority. The political function of rights is precisely to protect minorities from oppression by majorities : and the smallest minority on earth is the individual." --Ayn Rand


Filmduck said...

Nice use of Ayn Rand quotes there Bob... Not that it makes any difference with the backlash you are bound to get from your tea party readers if they still exist...

beyrob said...

I hope prop 8 goes down in flames >< such a disgrace to discrimate like that

Euler d'Moogle said...

I'm shocked SHOCKED that the judge used what is very close my argument against Prop 8.

My argument went that being against gay marriage is ultimately, as it's root, a religious argument no matter what "science" you wrap it in, and as a religious argument, the government can't use it. Separation of church and state and all that.

The judge probably stated it better.

edward said...

I don't really know why anyone is getting all bent out of shape/celebrating over this. The Court's ruling is just the first move. It's like a football team claiming victory just cause their team scored first. The game isn't gonna be over until the supreme's rule. And who knows where they are going to come down?

TheAlmightyNarf said...
This comment has been removed by the author.
TheAlmightyNarf said...

I've always been in support of gay marriage (or, at least against illegalising it), have considered myself a libertarian for the better part of a decade and consider the protection of individuals rights the most important function of government. Prop8 was clearly unconstitutional and I'm shocked it went as far as it did.

However, the very idea that the government can just step in and blatantly undermine the will of the people is... unsettling. I mean, regardless of what prop8 was, it was what the people of California voted for. We are supposed to have a government "by and for the people," and right now the state of California clearly is not.

IMHO, the ends can never justify the means... the means that the state of California has taken even to protect it's citizen's rights are, at least in principle, far more unconstitutional then law they're trying to undo. And, if this become a followed precedent, far more harmful to individual rights then prop8 could ever hope to be.

Nick said...

Except, Narf, one of the founding principles of this country was that the majority would never have the power to vote away the rights of the minority. The problem isn't that the people shouldn't have voted for it. The problem is that they shouldn't have gotten the chance to, that it shouldn't even have been on a ballot. It's not a voting matter.

TheAlmightyNarf said...

One could also argue that the founding principle of this country was that the government should always represent the will of the people.

But still, I agree, they absolutely should never have voted on it... it should never have even been proposed. The state supreme court should have shot it down long before it ever got to the ballet (which, interestingly enough, they had the chance to do but decided against it... seems odd they waited till now to shoot it down).

But, ultimately, it was voted on. The people spoke.

IMHO, for it to legitimately be repealed, it should be put up for an open election again.

TheAlmightyNarf said...

I guess to some up my opinion a bit better:

People in favor of the overturn are saying that the government should have the authority to over rule a vote by the people if the outcome is bad enough.

I don't think the government should have the authority to over rule a vote by the people under any circumstances... regardless of what the outcome is.

Moshi said...

What, you're mad because the constitution was upheld?

Get fucked Narf.

Dathi48 said...


While this Country was built around the idea of the Will of the People, it was NOT built as a Democracy, especially not a direct democracy.

Just because a majority of voters voted for the Proposition, and won by what was far from a large majority at that, fails to have any weight against the fact that the Proposition is not acceptable under the Superior Authority of the National Constitution, and specifically the 14th and 5th Amendments.

If there had been a vote on Civil Rights for African Americans, would it have passed a majority in the 60's? If California voters passed a Proposition to forcible remove all peoples of Chinese decent from the State, would that be ok, because it was the "Will of the People"?

While I am generally Conservative minded, Bob's Ann Rand quote is dead on, and if our Laws are subject only to the fickle will of 51% of the population at a time, or in some cases, just a Plurality, very dark things could come of it.

Christopher said...

@Narf: Even when a law has been chosen by "the will of the people", it can still be unconstitutional if it infringes on people's liberties. The US Constitution provides ALL of its citizens the protection against the majority and the government for whatever reasons.

Think back to the Civil Rights Movement. Many of the "Jim Crow" laws were rallied for by "the will of the people" despite being horrific violations of human rights. What went down in California yesterday was merely the continuation of 50 years of the Supreme Court saying "fuck you" to gross violations of human rights.

Granted race, sex, and class discrimination are the ONLY recognized classes that the Supreme Court will consider to protect. Each of the Justices (even Scalia, oddly) have made decisions in favor and against homosexual discrimination. Honestly, it's hard to say what will happen.

@Bob: Sorry dude, but I don't think there's any such thing as a Constitutional law degree. It's just a Juris Doctorate, where you can specialize in Constitutional Law. Hate to be nitpicky, but I got to say as the law student in me won't let it go ;)

Q said...

You know this guy Nerf and Rand Paul are probably my greatest examples of why absolute libertarianism is a bat shit crazy. If your general philosophy prevents you from using your common sense and better judgment than you really did to loosen up your standards.

Bob said...


First and last warning: Do not use abusive language against the other commenters. Do it again and it gets deleted.

That goes for everybody, regardless of position.


With respect, the way the American system has been set up since the beginning is that "the will of the people" is NOT enforced by popular vote, but by the decisions of elected representatives. Its why the pledge says "to the republic" as opposed to "the democracy," because "pure" democracy is in effect mob rule: whatever the most says, goes. For good or ill, the US is set up to make sure the majority NEVER wins simply "because" its the majority.

Hence, at every level of legal decisionmaking in our system, there is a "fail safe" by which one person - either an elected rep or one appointed by an elected rep, can strike down a decision or popular vote if they feel it violates law or principal: a president can veto, a senator can fillibuster, a judge can disregard a jury. And the check on THAT is if we don't like their decisions we get to vote them out, impeach or fire them.

Its important to note that this decision wasn't against "the people", but against the State. The vote is nullified because the act of ALLOWING the vote to take place was against the law (specifically, it violated the equal protection clause of the Constitution.)

Dav3 said...


I took so long polishing my comment that Bob said most of it for me.

Anyway, I can appreciate what Narf was thinking. It is worrisome to say the least to think that the court could overrule a decision voted for by "the people" for no good reason.

Good thing that's not what happened.

TheAlmightyNarf said...

@the last couple posts

Yea, the bill should never have been voted on. I get that. I said that myself like 3 times.

But, you're basically saying that the government should have the authority to tell the people to fuck off when it doesn't like the outcome of a vote. It sets a judicial precedent that can be far more harmful in the long run.

I mean, you do get that once judicial precedent gives the courts the power to overturn a vote, even one for a constitutional amendment (as was the case here), it's going to be used and abused from here on out, right? We may like to think that that power would only ever be used in the most extreme of cases like this, but history shows that is clearly not the case. Judges have stretched the constitution pretty far to overthrow laws they didn't like (as was actually the case here as Christopher pointed out Prop8 isn't actually unconstitutional from a technical reading, even though in spirit it should be), and I really do not want to see how far this can be taken.

@ Bob

Of course there are checks and balances against the different branches of government, but not against the people themselves... and there shouldn't be. Clearly there is a hole in the California state government that allowed Prop8 to get through and is in desperate need of fixing as to not let this sort of thing from happening again. But, allowing the government to simply over rule a vote (which I know is not what technically happened, but is what happened de facto) should absolutely not be it.

And the thing that keeps coming up for me in my research is that Prop8 came before the state supreme court several times before it came to vote, but on at least one occasion it was because of it's constitutionality and it was upheld... and it really bothers me that they waited until after it was voted on to shoot it down.

Christopher said...

@Narf: It's true that this may become a judicial precedent. Actually the point you are bringing up may very well be the point argued in front of the Supreme Court and the justices will choose to say whether or not that is constitutional. This should give an interesting discussion to all of them as they will also be deciding whether or not they can overrule popular votes. Typically, this has rarely happened.

But as I said, if a law has shown to be unconstitutional due to violating certain liberties, then the law WILL be struck down, regardless if it was put into effect by a legislature or the majority vote.

And remeber Narf, the Supreme Court gave THEMSELVES the power of judicial review over 200 years ago. That was never part of the agreed Constitution, but here we are 200 years later and the Supreme Court and its lesser courts have nevr stopped using it.

Bob said...


Your overall point is valid, but understand that your disagreement is not with this judge but with Thomas Jefferson and John Adams. That representative democracy supercedes popular opinion, and that the different branches and levels of government can overrule one another if and when one of them breaks the law, has been the settled law and operating model of the US since about 1776. This doesn't SET any precedent, it UPHOLDS precedent - the oldest one we have.

This is all that happened here: California violated the constitution (read: BROKE THE LAW) by putting prop8 on the ballot. A victim of said violation sued, the judge found for the plaintiff. That's it. That people also cast votes on it is immaterial - its like complaining to the police that you got ripped off at an illegal poker game ;)

Andrew said...


I have some points but I feel I should first mention that I am British.
My brother-in-law is gay and is getting "married" soon, however we have sidestepped the arguments of all the religious loonies by inventing a new thing called "civil partnership" that has all the same legal standing as marriage but with none of the god.

Again, this is a problem that should never have happened, you can't vote to discriminate against someone. Would you have a vote to stop ginger people from getting married?
Tall people?
Ugly people?
Black people?

Can you imagine the fallout? The question is just retarded.

Finally (and this is not the result of years of study of constitutional law) of course the state should be allowed to stop people (even large groups of people) from doing something REALLY STUPID.

A lot of those people who voted are really stupid, in fact, as intelligent articulate people I think we often overestimate the intelligence of large groups of people.
People are horrifically stupid. The best way to prove that is to look at the music charts. They are voted for by large groups of people and almost all the top selling records are rubbish.
Ergo, people are stupid.

Christopher said...

@Andrew: Amen brother, amen

Jonathan said...

wait, wait, wait...
Does this mean the equal protection clause protects the marriage of siblings?

Jonathan said...

Offtopic: nice ringing artifacts in the = image.

If you can only upload jpegs, I suggest aligning the yellow rectangles to 8x8 blocks, save and check to be sure it worked, and re-upload.

Q said...


Let me put it this way, is it any of your fucking business?

Now, now, let's not look at the fact that you tried to compare gay marriage to incest and truly look at the real problem here. Why is it any of business to decide what other people do?

Bob said...


No, because sibling incest is illegal in the U.S.; homosexuality is not (see: Lawrence v Texas)

Andrew said...


People of the same sex getting married is wrong for some religions and totally fine if you are not bigoted.

People who are brother and sister getting married is wrong for some religions and still wrong if you are not bigoted.

If you sleep with people who are too close to you in the family tree your kids are born horrifically mutated.

Not because god says so, just because.

BTW in the UK we can marry our cousins, you can't. Whoop! whoop!

Mark said...

holey moley, guys. I saw that first post by Narf and got all ready to chime in will all my seldom-used poli-sci major knowledge, and, well, you got it covered. Instead:


The problem with that argument about incest is that it doesn't take into account sex without reproduction. Like, say a brother an a sister were both sterile. then there is no fear of inbred kids. what about two homosexual siblings? is that ok?

the whole idea that sex=reproduction is, IMO, one of the main fallacies that has led to anti-gay sentiments (it can't lead to children, thus it is unnatural, and against the will of a sex-is-not-for-fun-type of god), so i don't think that's the best path to walk down.

not saying, necessary, that incest should be legal. Just not necessarily for the mutation reason. Better might be the whole "power-dynamic" issue, similar to in cases of statutory rape? Is "consent" and all that really there when we're talking about a parent and a child getting it on? weird. just weird. now, siblings, i don't know. weird stuff.

Andrew said...



What about the case of siblings who are unaware of their relationship?

Basically in our society it isn't OK but in some remote tribes and such it is a necessity.

There are many different pressures that build the rules of societies, I imagine the mutated children thing would have been the initial deciding factor that made it the social norm not to get jiggy with your sister.

The power dynamic stuff adds to it as we mature as a society.

On a side note, my wife has a foster-sister who is really hot, that makes her my foster-sister-in-law.

Hmmmm, I checked and it is OK as long as we have never lived under the same roof as brother and sister (in the UK).

Tricky, that one.

I think the great thing about these questions is this:

We have matured to the extent that we are now presented with iterations of the family that the people in biblical times had no concept of.
All things are good until they hurt people who do not wish to be hurt.

In the case of incest it is the potential children/weaker member of the pair who is hurt.

Jabrwock said...

The decision is an interesting read. It's long, but the judge takes his time to lay the smack down on all the proponents' arguments.

Essentially summed up as "just because you find it morally questionable doesn't mean the state gets to ban it".

I especially liked the part where the judge summed up all the ads using "vague phear of teh gay disease" to try to scare people (remember the "gay storm is coming"?). He was not impressed with those.

Jabrwock said...

Oh, and on the topic of incest, the state has a definable "harm" to work with there. You can easily show that children by incest causes developmental and genetic issues, there's a huge body of evidence.

In terms of gay marriage and kids though, there is only anecdotal or "thought exercise" evidence indicating any "harm" to the children. Anytime real data is brought into the picture, the "harm" evaporates.

Andrew said...

I have some friends who were among the first if not the first lesbian couple in the UK to be allowed to adopt their children.

(each has one child by a doner father, the father in each case has relinquished all interest in the child making my friends the sole carers for the children)

I love that family, their house is just such a nice place to be and the kids are happy and well adjusted.

More so than me and I had a "conventional" upbringing.

I mean, I'm spending the evening involved in an internet debate on the subject of constitutional law in a country I am not a citizen of.

rob said...

@Andrew: Amen to that, I'm not american, but I just follow it's political progress.
No offense, but it's more exciting than some soap opera's or movies.

untra said...

@Andrew and Rob
Yeah... Our conventional political system is great for making for some overly dramatic news pieces. I blame it on our two party system- no congressperson can do anything unless it represents the interests of the party. And with only two options, all issues come in black and white, and it becomes huge mudslinging battle between republican or democratic party alignment.

But I digress.

I first heard about proposition 8 being overturned this morning from the front page of the wall street journal, under the slightly larger headline of "US , Hanoi in nuclear talks".

actually, theres was a bigger headline on the same front cover regarding nonprofit slogan disputes.

Something tells me the Wall Street Journal will either do a big piece on this tomorrow, or is ignoring such a big issue for mysteriously unknown reasons.

Q said...


Here here, but I would recommend you see a film called "The Best Man" by Gore Vidal if you really want to see good dramatized film about American politics

Rarer Monsters said...

Okay, well people go on about homosexuality in general, there's something important to note:

This decision is really only the first step in the legal battle. A victory for Gay Marriage in San Francisco was inevitable (the defense didn't even really put on more than token resistance)

The important legal battles will be when the appeals go to the 9th Circuit and California Supreme Court.

So, really, this is only the can still celebrate/be angry if you want, but just note that this is by no means the end of the story.

Rarer Monsters said...

And @Narf: Courts are often accused of "undermining the will of the people" but that isn't true because our entire government is premised on representation. Elected representatives act with public mandate, and thus they, and the judges they appoint and confirm, are also acting on the public mandate.

It's how the government was designed to work, the founders created a judicial branch because it was supposed to put checks and balances on other branches.

And history has pretty obviously proven it's necessary, as, if not for 'activist' courts overturning the "will of the people", that segregation was overturned and interracial marriage was legalized.

Also, in general I don't see the Tea Party "big government" outcry as anything but cover for basic homophobic social conservatism. As far as I see it, the government of California placing rules on who can marry and how is the example of "big government".

Blue Tecken said...

Pretty much everything I would say has been said, so well-done everyone who came before me. A final addendum however @Narf.

There are checks on the people, and it is the Government itself, and it was always intended that way. From the beginning the level of power in popular opinion was limited.

At America's origins only the House of Representatives was directly responsible to the people. Senators were chosen by states, and the President was chosen by the electoral college, which was determined state legislatures. Steps were put in place specifically to remove "the people" from direct control of the levers of power.

The founders were terrified of majority tyranny every bit as much as they were terrified of monarchical/aristocratic tyranny. And to Bob's point above, the will of the people is not the source of our laws, the Constitution is, and the will of the people must change the constitution itself, if the will of the people is counter to the language of the Constitution, hence the amendment process.

TheAlmightyNarf said...

@ Bob's post way back

Is it possible that my actual disagreement is with the founders themselves? I guess... I've never seen "it's the way the founders intended it!" as a particularly strong argument... They were different people who lived at a different time under a different situation. What was good for them then is not necessarily what's best for us now.

None the less, we're not talking about one branch of government overturning the decision of another branch of government. We're talking about a branch of government overturning, at worst, a popular vote, and at best, a petition by the people of California.

Let me paint for you a not all too hypothetical worst case scenario:

Despite all of the... interesting... conspiracy theories regarding Obama, there was always the very real issue that by most measures John McCain was not, in fact, a natural born citizen and did not qualify to be president. He was born in Panama a few years before it actually became part of the US. The supreme court, in it's infinite wisdom, decided to avoid the issue like the fucking plague not wanting to deal with the repercussions by deciding either way.

But, what if McCain had won? ...what if that very issue had come before the supreme court? We would be talking about a popular vote resulting in an unconstitutional outcome. While there hasn't been any precedent for this exact sort of thing before, it was assumed that the supreme court wouldn't touch that with a 32 1/2 foot pool. But, now... there's precedent. A more left leaning court less afraid of partisan politics could, in theory, remove an elected official from office as long as they could come up with a constitutional reason for it.

An extreme example? Sure. But, that's the thing about our government... it never really seems to shy away from the extreme examples.

TheAlmightyNarf said...

@ Blue Tecken

"the will of the people is not the source of our laws, the Constitution is"

Have you read the preamble lately? Let me give you a referesher:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

The constitution may be the source of the law... but the will of the people is the source of the constitution's authority to be law.

Sara Pickell said...

"We the largest voting block of the United States,"
Just doesn't have the same ring to it for some reason...
The whole point here is that this isn't the will of "the people", because "the people" is a monolithic group made out of individuals who can't agree on what makes a good color for a toothbrush. This is the will of one segment of "the people" to abridge the rights of another segment of "the people". To which the correct answer is to use human judgement and tell them to go fuck themselves.

It's true the ends don't always justify the means, but on the other hand the means don't always justify the ends. If prop 8 stands you are STILL creating a precedent, only now the precedent is that if you get enough people to agree to it, you can abridge the rights of any sufficiently unpopular group. In the past this has led to bad things (tm), second class citizens, ethnic cleansing, I'm sure you get the picture. While it's true that allowing courts to de facto overturn popular votes sets a bad precedent, it is one tempered by the fact that voters can remove judges and legislature can lay the smack down on unruly courts. On the other hand giving unbridled power to whatever mob happens to be the largest voting block today would exist fundamentally without any sort of check.

As to your example with McCain, again we come to the same issue where people choose to put things in an explosive situation. If McCain was legally barred from running, he shouldn't have run, instead he put his own political career over the importance of the current precedents. He accepted that there was the chance that his being elected could lead to an abridgment of voter power and ran anyways. Just like the people who drafted prop 8 decided that making damn sure gay people couldn't get married was more important than the fact that they would without ANY QUESTION WHATSOEVER be creating a horrific precedent for future governance. Those millions of California voters decided to put the power of their vote on the line over this issue, it's ultimately on them if they wind up paying the price for their idiocy.

Filmduck said...

@narf: yes narf you are right the will of the people is the source of the constitutions power. The people willed that the government outlined by the constitution is what they want. So when a constitutionally acceptable action like a court ruling prop 8 unconstitutional is however indirectly the will of the people in action... however convoluted that may seem.

On another note this problem in California is more of a problem with the California system of governance in general more so than a broader issue with the US government or constitution. The state of California is set up so that it feels like much of the time it is ruled by referendum. This has caused time and time again, situations that return to bite the people of California in the arse. Not because they arent intelligent or that their intentions are not sound, but because the people voting do not all have law degrees and do not have the ability to look into all of the ins and outs of a proposition and see all of the unforeseen consequences (third strike law that's you). We have a representative democracy for a reason, logistically there is no way to create the forum necessary for a referendum to be properly reviewed and discussed before it is put to a vote. Sure there are select issues in which a referendum is fine but California is overly dependent on them and it is far too easy for them to become law. Just look back at many of the most legally troublesome laws in our country right now. Guess what? Almost all of them are referendums...

Bob said...

"None the less, we're not talking about one branch of government overturning the decision of another branch of government."

See, that's the thing: YES WE ARE.

This decision wasn't about the votes, it was about the legality of placing the question on the ballot. The judiciary has found that the state of CA violated the constitution by putting it on the ballot, and thus any votes taken under it one way or the other are legally void.

RestamSalucard said...

Speaking of precedents, just how popular was the Black Civil Rights movement when the Brown Vs. The Board of Education came to past? (Actually, this is a serious question, as while I recall Virginia government being incredibly pissed, I don't know how much they would represent the values of the majority of White Americans at the time.)

If it was against the majority of voters (Presuming what we'd see today as Anti-Black Bigots formed the majority), would the Supreme Court not be considered "Activist" Judges for relinquishing the "Separate but Equal" clause?

And finally, if they decided not to act on their power of vetoing unconstitutional laws for fear of being seen as anti-democratic, how long would Separate but Equal continue?

Filmduck said...

@salucard: to be considered an activist court it would have had to be working off of the principle of spirit of the law without much explicit evidence for their verdict in the constitution... in the case of brown vs board the verdict included reasoning both in spirit and in letter of the law. So it wasnt really activist. The right to an equal education was definitely covered in the bill of rights fairly blatantly...

Blue Tecken said...


Hmm, Ok. Well, your condescension aside and, I don’t need a refresher on the constitution, and while quoting the preamble is nice, it doesn’t address my point in the slightest. If anything, it reaffirms it. That whole part where I talked about the amendment process.

The constitution is the source of law and governance for the United States Government. The various articles prescribe how government is to be formed, and laws enforced. The Bill of Rights and subsequent amendments are changes to the constitution as prescribed by the will of the people. You see, as I was saying before, which you seemed to gloss over for some reason, the United States is not a pure democracy. It is not merely popular vote that prescribes our laws, but votes that fall within the scope of the constitution. The constitution prescribes for popular representation, yes, but the law still derives from the constitution. If people were to popularly vote that all freedom-of-speech is hence forth illegal, that would be unconstitutional. If an amendment were passed that voided the free speech clause of the first amendment, that would be kosher.

You clipped off my quote up there when you were attacking my argument, so I’ll go ahead and include the rest of it for you again. “…the will of the people is not the source of our laws, the Constitution is, and the will of the people must change the constitution itself, if the will of the people is counter to the language of the Constitution, hence the amendment process.”

Mark said...


as a lifelong californian, let me refine your statement to suggest that the Initiative is the far bigger problem in CA than the Referendum. With the initiative (where the Ca voters can propose ballot measures, for those reading the thread who don't know), we literally get propositions one year that repeal propositions from last year. or 2 versions of one proposition at the same time, with slight, confusing differences. Prop 8 is a good example of a stupid initiative - it's wholly possibly that next election cycle we could have a "prop 9" that undoes prop 8 through vote, and starts this crap all over again. The number of signatures we need to get something on initiative is painfully low, as i recall. Referendum is, at least, initiated by the legislature.

On the whole "overturning the will of the people" thing, its irrelevant, as Bob has said, if the original Will was illegal. Allow me to present an example. If you and I made a signed, fully awesome lawyer-written contract that stipulated that you would pay me 100 dollars to, say, pirate Starcraft II for you, and at the end of the day, I didn't pay you, you couldn't sue me for violation of my contract. Why? Because the contract was illegal in the first place. Prop 8 was, according to this ruling, never legal, so whether it was the will of the people or not. So yeah, we would need to, by law, oust McCain from office if it turned out he wasn't American-born - THAT is precedent we'll need when we need to get Kang and Kodos out of office when one of them gets elected (90's Simpsons ftw!)

Jabrwock said...


"This decision wasn't about the votes, it was about the legality of placing the question on the ballot. The judiciary has found that the state of CA violated the constitution by putting it on the ballot, and thus any votes taken under it one way or the other are legally void."

That's a bit tricky, because the judge found that the question HAD been legally added to the ballot. He found that the question itself was invalid, not the process they used to put it on the ballot.

Filmduck said...

@mark: thanks for the term correction. I meant initiative in my previous comment but wasn't aware of the proper term. Thank you, that was quite informative.

TheAlmightyNarf said...

Since I don't really have anything else to add that I haven't already said, I just wanted to say that I find it fascinating that there was a full fledged argument about prop8 that had absolutely nothing to do with the morality of homosexuality or whether or not homosexuals should have have the right to marry ...

I hope to see more interesting, unexpected arguments like that around here. :)