Thought it might be a good idea to revive this thread since Proposition 8 passed in California. So what do you all think? (Sorry if you’re expecting something more in starting this discussion. I have a hard time starting discussions instead of just contributing to a discussion.)
I think there will be legal challenges to overturn it on a technicality.
The state courts can’t fight this one directly, because its an amendment in the California constitution. The federal court (i.e. the Supreme Court) avoids this whole mess, because marriage is a power of the state - not the federal government (unless Congress passes a Marriage Amendment for the US Constitution). The voters will have to overturn their own measure. The judges can’t do it anymore.
Yea. The argument is that its a “revision” and not an “amendment” or something like that. It’s insane… hard to fight against though, because its the VOTE that determined this – democracy’s “Tyrranny of the Majority” and all that. 
In public opinion, but not with an appeals court. They really don’t look at public opinion, except marginally. The state supreme court is more likely to look at “the will of the people” than an appeals court. Of course I could be wrong. There are always exceptions.
I was going to mention the whole “Tyranny of the majority” thing when I revived this thread, but for some reason decided against it at that time.
In any case, while I have no idea whether its true or not, I have heard that there is a strong case to overturn the proposition. I sure hope that they succeed at overturning it.
On “Countdown with Keith Olbermann” yesterday (November 10th), Keith gave a very moving “Special Comment” segment at the end of the show. You can watch it here or click on the link next to the full text of his speech here. I highly suggest watching it instead of reading it, as you can really hear how moved he is by this issue in his voice. Here is an excerpt:
It’s frustrating, but from what I’ve heard, the vote in Florida which got a lot less attention is actually a much bigger deal.
The California vote banned gay marriage but not civil unions (afaik). It sucks, but not a whole lot has changed for most people. Gay marriage wasn’t legal in most of the country anyway, and the people who did manage to get married still are. And since public opinion has been shifting a lot over the past twelve years or so since the issue was first raised in Hawaii, it seems fairly certain that it will get sorted out eventually.
On the other hand, the vote in Florida, afaik, banned the legal recognition of gay marriage, civil unions, domestic partnerships, or any other agreement which might attempt to emulate a familial relationship. And unlike the California vote, it passed by a huge margin. And many people in Florida are now worried that they’re going to lose their health insurance.
That will proably be overturned on the grounds of being too broad.
I have to agree with Jinnai after seeing for myself what the full text of Florida’s Amendment 2 says.
Yeah, but it’ll take time, and given the current economic climate, the paranoid think they’re going to get stepped on so that companies can save money. Who knows? I don’t live in Florida.
Since I don’t live in Florida (and wouldn’t want to, although it can be a nice place to visit), and am by no means a legal expert, I don’t know how common common-law marriage is in Florida, or if it is even legally recognized there. If it is, I imagine that those who are in a common-law marriage would be affected by this amendment as well. If this is the case, it won’t be just the gay community getting behind overturning this in the courts. Hopefully this fact will help speed up the fight in courts.
Similarly, in Arkansas, Proposed Initiative Act No. 1 passed and essentially banned adoption by gay couples. While I’m having trouble finding the exact wording, there have been wide news reports (though somewhat lost because of all the focus on Proposition 8 ) about how the act affects much more than gay couples. Essentially, as I understand it, the act affects anyone who is unmarried and wants to adopt. Due to this act, they are now prohibited by law from adopting. In trying to “stop the gay agenda” as the proponents put it, they have denied a large amount of heterosexual couples who want to adopt, but don’t want to marry, even if the relationship of the couple is rock solid. The couple isn’t even allowed to be a foster parent with this law.
The problem the states have is this is a losing position for them. All you have to do is look at Connetticutt to see why— a Conn. judge struck down their “one man-one woman” law because a legally married lesbian couple that had gottten married in Mass WANTED A DIVORCE in Conn. Earlier, one part of the pair had moved to Mass just to establish residency so they could get legally married there— and after they got married, things changed between them. Even though they’d been in a stable relationship for several years prior, they didn’t want to be together within a year of being married and filed for divorce in their state of Conn. The judge then struck down the laws on the books, because they didn’t allow him to recognize their Mass license— which is required for him to grant them their divorce. So bang! Instant same-sex marriage is now the law by way of courts. It will be the same thing throughout the rest of the nation— no matter how many state constitutional amendments are put in, when a legally married same sex couple want a divorce where they are living, they’ll have to be granted it. And if the state doesn’t “recognize” same sex marriage prior to that, it will have to at that point, knocking down all the “protections” for a “heterosexual monogomous marriage” as the only legal form of marriage.
That’s why the states need to get an actual constitutional amendment—as without it, the basic laws governing the honoring of other states contracts will force them to recognize same-sex marriages as a legal form of marriage. It’s why there’s the “Defense of Marriage Act”— to grant immunity to the states from that little bit of American contract law. With a constitutional amendment, they can cancel ALL same-sex marriages at once, and never have to recognize any, as they’d always be illegal. Of course, that would get challenged in court— and how that would fare would depend on the courts and their make up at the time.
I’ve said it many times before— as long as the federal government wants to differentiate people based on sexual orientation, then the minority are entitled to all the federal protections of legally recognized minority. Homosexuals will be the first group recognized as being allowed to “marry itself”, but after that, we are going to see a lot more change pushed for by other “non-traditionally” oriented people. I think that eventually, the state will have to allow whatever number of consenting adults form whatever stupid “officially recognized” relationships they want. But that’s probably a good century away from now.