Proposition 8 declared unconstitutional

[drone]

So the 9th Circuit Court retains the same-sex marriage ban until their hearing starting December 6th.
http://www.cnn.com/2010/US/08/16/sam...ex.html?hpt=T1
Interesting decision, I wonder if this was done to postpone flak before the elections. Because it's a forgone conclusion that the 9th will uphold Walker's ruling.

[Xiahou]

The "standing" issue is really unsettling to me. You have a majority of voters pass a proposition. One person can challenge it in court and if the attorney general of the state isn't interested in supporting the proposition, it gets overturned by default? That really seems to short-circuit the democratic process. This would mean any referendum passed by the people can be tossed aside if the current government doesn't support it.

On another note- isnt the AG shirking his duty here?

[Tellos Athenaios]

Which would be the case, if the law in question (prop 8) had actually been valid within the legal framework it must fit in (Californian constitution, and the USA one). Remember that in the USA federal laws trump state laws, and constitutions trump “lesser” laws. But prop 8 isn't and that is the meat of the ruling (that the AG isn't interested in defending it is merely a mildly interesting sideshow).

Now the Judge has noted two things: (1) that the defense for prop 8 failed to make a case why prop 8 is not in fact unconstitutional, (2) that prop 8 does indeed appear to violate applicable constitutions and law. So (2) might have been considered differently had (1) not been the case however (2) still applies which is (a) also the contention brought before the court by the plaintiffs, and (b) the argument which I still haven't seen anyone giving a sound counter-argument to.

Finally, remember that it is the job of the courts to check the excesses of lawmakers (be that popular vote or politicians making hay while the sun is still shining on a Mosque in NYC): that is why you should be grateful not to live in any “democracy” (or rather mob-rule) but in a country where laws can be scrutinized and acid-tested before a court. It gives minorities protection from arbitrary decisions imposed on them by a majority, if they can prove them to be unjust/unfair.

[Seamus Fermanagh]

The "standing" issue is really unsettling to me. You have a majority of voters pass a proposition. One person can challenge it in court and if the attorney general of the state isn't interested in supporting the proposition, it gets overturned by default? That really seems to short-circuit the democratic process. This would mean any referendum passed by the people can be tossed aside if the current government doesn't support it.

On another note- isnt the AG shirking his duty here?

Depends on whether you view elected officials in Jeffersonian or Burkean terms. Jefferson held that an elected official should reflect the will of her constituency. Burke held that an elected official should work for the long term best interests of their constituency EVEN if that meant opposing the will of that constituency in the short term. I would venture to guess that most of the officials in California believe that restricting marriage to hetersexual unions is morally wrong and that they are duty bound to oppose the short-sighted electorate on the issue.

[rory_20_uk]

Interesting. I'm sure everyone thinks of themselves as Burkean in nature, as after all this enables one to override all opposition as the other side clearly needs saving from itself.

[Beskar]

Interesting. I'm sure everyone thinks of themselves as Burkean in nature, as after all this enables one to override all opposition as the other side clearly needs saving from itself.

Indeed.

[Seamus Fermanagh]

Xiahou:

I would suggest that that is exactly the system that obtains. If Schwarzeneggar and enough of the legislature wish to do elsewise, then elsewise it shall be. The voters may turn them out of office via recall or at the next balloting if they are scandalized enough. Unfortunately, enough will forget before the next balloting that this may not motivate the representatives enough to support the constitutional choice of a modest majority of Californians.

In the specific instance of California, I think their simple majority rule for Constitutional changes is coming back to haunt them here. The gov is not seeking another term so he feels free to do as he sees fit. Moreover, he can get political support because the majority that voted YES on this issue was modest -- and many in the legislature know that not enough of their voters will turn on them over this to be decisive. If Cali had a 2/3 rule for such changes, they'd be less frequent but VERY hard to ignore. 67% is not just a majority choice, its a mandate.

[PanzerJaeger]

The ruling has been upheld by the federal appeals court. On to the Supreme Court.

[Xiahou]

Depends on whether you view elected officials in Jeffersonian or Burkean terms. Jefferson held that an elected official should reflect the will of her constituency. Burke held that an elected official should work for the long term best interests of their constituency EVEN if that meant opposing the will of that constituency in the short term. I would venture to guess that most of the officials in California believe that restricting marriage to hetersexual unions is morally wrong and that they are duty bound to oppose the short-sighted electorate on the issue.

For just a moment, set aside the gay marriage issue. The logical extension of this is that any law passed by the legislature or by referendum can be cast aside as long as the Governor and AG oppose it. Take any law, challenge it in court, have the AG no-show, and the law gets overturned. The referendum process becomes meaningless if the current regime doesn't support it.

Interesting. I'm sure everyone thinks of themselves as Burkean in nature, as after all this enables one to override all opposition as the other side clearly needs saving from itself.

I'm pretty sure the AG's oath of office is to support the laws of the state. Not to support only the laws he likes. The California Supreme Court already determined that the law was legally enacted- which is why it was elevated to the federal courts. As a duly passed amendment to the state's constitution, I don't see where he can get off on just saying "pass".