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Not entirely accurate. A state or the federal government can pass certain types of retroactive laws, this would be one kind they could successfully pass.Quote:
Originally posted by Theairoh
The question arises, of course, of whether or not it is actually legal to undo the marriages that occurred before the amendment. Personally, I don't think so because ex post facto laws are prohibited under our federal constitution.
Cais... I think that was my post you were responding to, not Jidoe.Quote:
Originally posted by Cais
We've been having this debate for centuries now, and while proposition 8 may have succeeded in a legal fashion, it is inherently prejudiced and violates the rights of a specific protected class.
There's a very simple reason that it violates the rights of a specific protected class: and that is because it enfringes on a very fundamental American concept that all power should be in check - that should also include the popular majority.
I'm not content that Proposition 8 passes because there's no provision in California's constitution to protect the rights of minorities: honestly, no one should be. It's no comfort to me at all that a legal means of oppression exists in any way in my country which claims liberty as its primary tenet. The voters do speak, and sometimes they err against the principles we thought we should try to supplant the greatest army in the world, at the time, to build a government on.
I do have to ask: What protected class is involved here? Sexual orientation is not a constitutionally protected class. The only protected classes are those based upon race.
I wanted to respond to this directly:
"There's a very simple reason that it violates the rights of a specific protected class: and that is because it enfringes on a very fundamental American concept that all power should be in check - that should also include the popular majority."
Unfortunately, I believe you are mistaken here. Article 4 of the US Constitution requires that States form representative forms of government, that's it. Your reference to Thomas Jefferson is very interesting because he was the founding father that advocated supreme state's rights - in so much that he argued, and argued often, that the majority inside a state should have total domination over the politics of that state. Applying Jefferson to Prop 8 would result in him being satisfied.
Remember, we are a nation of laws. Due process is the fundemental protection that we have. Here, in California, California gave everyone the chance to be heard and when the dust settled California decided what it wanted to do.
Our Constitution protects people from having to be, as you say, oppressed by the "majority". Article 4 conveys the privilege and immunity of travel without restriction inside the United States. If someone wants to leave California because of Prop 8, they are entitled to do so and become a citizen of a different state.
Personally, I don't think that in these days married people should have anymore benefit "tax wise" and "legal wise" than single people. It's ridiculous that I get a tax break because I have children. I "chose" to have children and I "chose" to get married. And if I didn't choose it, but was responsible for bringing children into this world, then I alone should be accountable, not the government. There should be no reward for marriage and no reward for the number of children that you support.
None of this equal stuff conflict would be going on if "married" people didn't receive special rights and/or tax breaks that others do not receive. Either take it away from us or give that same right to others. Equal protection is for the human, not for the "circumstance" that is (to me) some traditional commitment that gains you a status above others in the eye of the federal, state and/or local government.
1. If I love you and you love me...why do your estranged family members get to visit you in the hospital and not me?
2. If I love you and you love me...why can't YOU decide who you want to receive your social security benefits for which you worked all your life and wish for me to receive?
3. If I love you and you love me...why can't WE live together and raise kids together and get "equal protection" under the law so that we can benefit like any other married couple raising a family?
4. Most important...why does the government recognize who YOU love and not who I love?
Think about it.
I'm straight, been married for 21 years and have 2 children that I love dearly. I also have friends that are struggling because they don't have the same opportunities at the pursuit of happiness that I've had and by which I've taken for granted all these years. Now that's pretty fucked up.
When a group gains a mile...you don't take away 2 miles. That's what these stupid propositions and amendments do...they are written by hateful people in hopes that the majority of "ignorant" voters will gain votes because the voters can't "read" beyond their own fears.
I've not met one person who doesn't want gay couples to have the same rights. But, I've met so many who didn't understand the verbage of what they were voting for/against. This legislation bullshit needs to stop and people need to be educated more on the legal ramifications of these so-called propositions/amendments.
Quote:
Originally posted by Pyrosama
Personally, I don't think that in these days married people should have anymore benefit "tax wise" and "legal wise" than single people. It's ridiculous that I get a tax break because I have children. I "chose" to have children and I "chose" to get married.
A lot of the tax benefits that you think you are getting because you are married versus being single aren't really tax breaks. You are just getting a portion of your taxes back. There is a huge economic machine that is being driven here, and its not in the favor of the citizen. American citizens are the mule to the American Government.
You have to understand that there are people who want you over your head with debt, and struggling to build a savings account..... Unfortunately, I think this is another thread...
Hmm. I am very curious about the ins and outs of this exactly. From what I understand about the 'exceptions' that are made for retroactive laws, would be that this one wouldn't really fit. Eventually a law will have to be instated saying 'marriage between men/men women/women' is illegal based on this amendment, and thus it will be considered criminal and those previous marriages will have to be 'punished' some how, most likely by having their respective rights and marriage licenses revoked.Quote:
Originally posted by Joreth
Not entirely accurate. A state or the federal government can pass certain types of retroactive laws, this would be one kind they could successfully pass.
I am not an attorney however, nor very learnt in the practice of law, so this is more of a question than a statement.
Jidoe and Joreth - sorry about that guys, I'm not skilled with the quote feature so I add in the name of who I'm quoting manually. Thanks for correcting me, though :)
Actually, sexual orientation IS a protected class, believe it or not. Protected classes are not simply based on race (anymore). Protections for homosexuals have passed congress in recent times and are in-fact considered a protected class in practice, atleast. Women, for example, are considered a protected class based on their gender and not a race.Quote:
Joreth: I do have to ask: What protected class is involved here? Sexual orientation is not a constitutionally protected class. The only protected classes are those based upon race.
I think you missed the point here, or I didn't define it well enough. As an aside, you are correct, however, I wasn't asserting that the popular majority is in check in law - it isn't. Where you proposed that we should be comfortable knowing that democracy prevailed, I suggested there is no comfort in the majority's ability to oppress a minority. There is nothing in law that ensures this level of check, and to that point you are correct. Furthermore, there is no legal or written instructions that would require a State to accomplish this, and you are also correct on that point.Quote:
Joreth: Unfortunately, I believe you are mistaken here. Article 4 of the US Constitution requires that States form representative forms of government, that's it. Your reference to Thomas Jefferson is very interesting because he was the founding father that advocated supreme state's rights - in so much that he argued, and argued often, that the majority inside a state should have total domination over the politics of that state. Applying Jefferson to Prop 8 would result in him being satisfied.
Ultimately, the "If you don't like it, leave" philosophy is utter bunk, and being satisfied with a system capable of oppressing its members because it's on paper or "it's all we have" or "it's how the system works" is not an attitude I suggest anyone adopt.
See previous point.Quote:
Joreth: Remember, we are a nation of laws. Due process is the fundemental protection that we have. Here, in California, California gave everyone the chance to be heard and when the dust settled California decided what it wanted to do.
Our Constitution protects people from having to be, as you say, oppressed by the "majority". Article 4 conveys the privilege and immunity of travel without restriction inside the United States. If someone wants to leave California because of Prop 8, they are entitled to do so and become a citizen of a different state.
I don't need an education on Jefferson here. But, I selected this quote to show how majority rule was once, atleast in thought, tempered with some sensibility. This is, again, a very old argument and I'm sure I used Jefferson appropriately to suggest that majority rule can and does trample the rights of people from time to time.Quote:
Joreth: Applying Jefferson to Prop 8 would result in him being satisfied.
More forthecoming if necessary, I have to go enjoy Christmas.
And a happy Christmas to you! :)
http://en.wikipedia.org/wiki/Executive_Order_13087
http://www.govtrack.us/congress/bill...bill=h110-1592
A little light reading for anyone interested.
I can cite one example. Recently the Federal Government passed a series of bi-partisan laws targetting sex-offenders. The way it works is this:Quote:
Originally posted by Theairoh
Hmm. I am very curious about the ins and outs of this exactly. From what I understand about the 'exceptions' that are made for retroactive laws, would be that this one wouldn't really fit. Eventually a law will have to be instated saying 'marriage between men/men women/women' is illegal based on this amendment, and thus it will be considered criminal and those previous marriages will have to be 'punished' some how, most likely by having their respective rights and marriage licenses revoked.
I am not an attorney however, nor very learnt in the practice of law, so this is more of a question than a statement.
1- Sex offenders are placed into three tiers, these tiers have new registration and residence requirements.
2- Regardless of your previous classification you are placed into a new one, without a hearing, and you must meet those requirements. For instance: Someone charged with gross sexual imposition that might have had a 5 year reporting requirement, every 180 days-- now has a 25 year reporting requirement, every 90 days, and cannot live in certain places.
3- These laws are all retroactive and apply to anyone that has ever been convicted of a offense listed in the statute.
See how that's retroactive? Most State Supreme Courts have held that this is a proper retroactive law, and specifically a civil penalty not a criminal one.
Here States and the Federal Govt would simply ignore marriages that fall outside of their legal definition and would deny benefits to people (both gay and straight) that do not fit that definition.
The last part is what makes it properly constitutional under our system of government, and why States/Fed needs to pass an amendment to change the issue.
Sexual Orientation is NOT a protected class under the U.S. Constitution. You would be hard pressed to find a SCOTUS case that supports your position. On top of that the MAJORITY of U.S. Federal Circuts (Appeals) have held that sexual orientation is NOT a protected class. See below:Quote:
Originally posted by Cais
Actually, sexual orientation IS a protected class, believe it or not. Protected classes are not simply based on race (anymore). Protections for homosexuals have passed congress in recent times and are in-fact considered a protected class in practice, atleast. Women, for example, are considered a protected class based on their gender and not a race.
(Strict scrutiny is triggered when a protected class is involved, as you can clearly see... sexual orientation is NOT protected, it is given the lowest form of protection - rational basis)
In the district court, Price-Cornelison also alleged lesbians comprise a suspect class, warranting strict scrutiny. Price-Cornelison does not reassert that claim now on appeal. In any event, this court, like many others, has previously rejected the notion that homosexuality is a suspect classification. See Walmer v. Dep't of Defense, 52 F.3d 851, 854 (10th Cir.1995);
see also Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir.2006) (noting homosexuality is not suspect classification in the Sixth Circuit);
Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir.2006) (noting Supreme Court has never held that sexual orientation is a suspect classification for equal protection purposes);
Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir.2004) (noting neither Supreme Court nor Fifth Circuit has recognized sexual orientation as a suspect classification);
Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 818 & n. 16 (11th Cir.2004) (en banc) (noting that all circuits that have addressed the issue have held that homosexuals are not a suspect class);
Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126, 1132 (9th Cir.1997) (noting homosexuals do not constitute a suspect class);
Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir.1996) (declining to decide whether homosexuals are a suspect or quasi-suspect class, but noting that, in military context, Seventh Circuit has subjected discrimination on the basis of sexual orientation to rational basis test instead of applying strict scrutiny);
Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir.1996) (holding military personnel who engage in, or have a propensity to engage in, homosexual acts are not a suspect class);
Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989) (holding homosexuality is neither a suspect nor a quasi-suspect class); Padula v. Webster, 822 F.2d 97, 101-04 (D.C.Cir.1987) (same). See generally Romer v. Evans, 517 U.S. 620, 631-33, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (discussing amendment precluding enactment of laws prohibiting discrimination on basis of sexual orientation using rational basis test rather than applying strict scrutiny).
As you can see, in all aspects of our legal society sexuality (straight or not) is NOT a protected classification, as long as a State can produce A (read as: any) reason (read as: not even a good one) the State can regulate it, change it, modify it, and ban it.
Sorry, I disagree. The philosophy is not "if you don't like it leave", rather it is if you find it insufferable and you are not willing to work to get what you want you can leave. Some people find this to be more tolerable, and more workable. Moreover, our founding fathers put it in place to avoid what happened during the original 13 colonies where we needed permission to move.Quote:
I think you missed the point here, or I didn't define it well enough. As an aside, you are correct, however, I wasn't asserting that the popular majority is in check in law - it isn't. Where you proposed that we should be comfortable knowing that democracy prevailed, I suggested there is no comfort in the majority's ability to oppress a minority. There is nothing in law that ensures this level of check, and to that point you are correct. Furthermore, there is no legal or written instructions that would require a State to accomplish this, and you are also correct on that point.
Ultimately, the "If you don't like it, leave" philosophy is utter bunk, and being satisfied with a system capable of oppressing its members because it's on paper or "it's all we have" or "it's how the system works" is not an attitude I suggest anyone adopt.
Jefferson didn't care or focus much on "majority" vs "minority", he focused on State vs. Federal. He was the champion of State's power, where State's could do exactly what California did. (As an ironic aside, he was one of the most federal expansive presidents ever)Quote:
I don't need an education on Jefferson here. But, I selected this quote to show how majority rule was once, atleast in thought, tempered with some sensibility. This is, again, a very old argument and I'm sure I used Jefferson appropriately to suggest that majority rule can and does trample the rights of people from time to time.
More forthecoming if necessary, I have to go enjoy Christmas.
And a happy Christmas to you! :) [/B]
I understand the emotion invested in something like this, personally I voted for homosexual rights in Ohio when Ohio banned "gay marriage". But it was still Constitutional under our system.
I would challenge you to produce law to the contrary.
Yeah. I'm aware of this example, but how are gay people who were married under the previous laws sex offenders exactly? Those laws don't apply to them, and they are just one kind of retroactive law in recent history. Just because there was one exception doesn't mean there will be a hundred more, and instating ex post facto laws has generally been considered very bad fair. Considering prop 8 was reacted to with a great deal of mixed feelings from many officials I don't think it, or any laws spawned by it, will receive the same support.Quote:
Originally posted by Joreth
I can cite one example. Recently the Federal Government passed a series of bi-partisan laws targetting sex-offenders.
Also, just because the constitution states something doesn't implicitly make it automatically so. The court can't just 'ignore' the marriages because they happened when it was legal, their licenses and marriage rights are 100% valid until they are revoked/altered by a new law or judgment. Something which, the supreme court of California is now apparently reviewing.