This is the right time for judicial restraint

But the argument is that Prop 8 is unconstitutional. This i has nothing to do with democracy. If someone wanted to put an ammendment on the ballot that said "All Asian-Americans must be indoors by 9pm" and people voted for it and it passed that would, technically, be how things works. However, in all fairness the courts would come back and say that the ammendment was unconstitutional and throw it out.

Regardless of rather this happens with Prop 8 or not, it doesn't seem very fair that the courts have ruled that women have a right to vote, blacks do not have to drink from seperate water fountains or go to seperate schoosl, and that interracial couples should be allowed to marry while denying another group rights.

The voters were VERY MUCH against all of the above, but "judicial activisim" paid no attention to them and gave people rights.

One day no one will care if gay people get married. If you aren't fond of the idea you just won't go to a gay wedding. One day people will see that there are far more important things to be worrying about in this world, and spending 70 million dollars on, then allowing two consenting adults to enter into a legal contract with the state of California.

This is the right time for judicial restraint of the rabid majority. The only thing that imperils our democracy is when exceptions to equal protection are put up to a simple majority vote.

So, with your logic does that mean a spouse can have more than one spouse? Or that a spouse can marry a horse.
Concerning the constitutionality of Prop 8, I do believe it was run by the judiciary PRIOR to being put on the ballot and "judged" to be constitutional. Also, all the incidents you sight were eventually deemed unconstitutional through the mandated constitutional process of AMENDING THE CONSTITUTION through the vote. Fairness has nothing to do with the political process. Finally, be very careful what you wish for in judicial activism for that path can and will lead to the worst kind of tyranny as was exampled in Nazi Germany of the 1930s and 40s, Stalinist Russia of the '40s and '50s, and Maoist China of the "40s,'50s,'60s, and '70s. In all those cases the state ruled THROUGH the judiciary. So be very careful about judicial fairness, for your fairness may not be someone Else's; and today's liberal judges can just as easily become tomorrow conservative judges. Judicial activism and legislating from the bench can never be good unless it is your good. The judges mandated and prescribed function is to insure that legislated laws are constitutional period. As I said the constitutionality of Prop 8 was predetermined before it was placed on the ballot. That is what the California AG, Jerry Brown, did. In fact he changed the titled of the Prop. So your contention of putting unconstitutional measures before the people is a bit of sophistry. Think about it. Regardless, the judges will hear arguments as they see fit and if they determine through legal interpretation that the remedy is to void Prop 8 then they must give cause. The ultimate arbiter will be the people for they can recall the Supreme Court Justices ( see http://latimesblogs.latimes.com/lanow/2008/11... ) So this battle is far from over but again judicial activism is NOT what the founding fathers envisioned.

Actaully Robert, the constitutionality of Prop 8 WAS NOT predetermined. The courts were asked to determine if it was constitutional, but they declined to determine it's validity. Jerry Brown has nothing to do with determining things like this, Jerry Brown changed the wording because he wanted to make sure people knew what they were voting on since gay marriage was already legal and it would be stripping the rights of group of people.

Animals do not have legal standing in society like humans do, so no...an animal and a human cannot get married because an animal doesn't sign contracts. This is one of the worst arguements AGAINST same-sex marriage and shows stupidity in those who mention it.

As for the constitionality of having more then once spouse--a case could be made for multi-spouse marriages to be legal. However, this has nothing to do with gay marriage and a ruling on polygamy does not have anything to do with legalized gay-marriage. Gay marriage could, in essence, be illegal and the courts could make polygamy legal one day regardless of gay marriage being legal or not.

No matter how much wisdom the majority might think their forms the foundation of their votes, they don't have the right to revoke civil rights from a minority group.

The constitution is meant to be a shield for the people, not a sword for the majority. Proposition 8 is a failure of the American dream. It's a failure to separate church and state, it's a failure to ensure equal protection under the law, it's a failure to ensure minority rights are protected from the tyranny of majority rule.

The courts would be wise not to allow propositions that are unconstitutional to be applied to the constitution. Regardless of your views on gays, the principles that grant equality in America should not be trashed because of an ignorant majority. The courts have the power to protect us from such ignorance and they should use that power.

Indeed, and if they DO NOT overturn Prop8 then this is basically a free pass for any group of people to put anything on the ballot...descrimination against blacks, asians, mexicans...and making it the law of the land.

I really can't believe people in this country think that Prop 8 was okay. Seperation of church and state is a must unless we want Muslims, Catholics, Mormons, Christians, Scientologists to all incorporate THEIR views into the government on a legally sanctioned level to change how groups of people are viewed and protected under the law.

There is nothing, I suppose, to keep Mormons from putting a "caffeine" ban on the 2010 ballot if this is how our constitution works.

Can 50%+1 of the voters use 'legislative democracy'(your word for initiative by simple majority vote) to overturn the right to keep and bear arms?

Can 50%+1 of the voters use 'legislative democracy' to give women the right to vote?

Can 50%+1 of the voters use 'legislative democracy' to make it legal to take property from anyone, whether an individual or some particularly defined group, such as illegal aliens?

Did your vote for the President of the United States directly count? Is your vote for the presidential candidate of your choice 100% certain to always be applied to the candidate of your choice? How much is your presidential vote worth, when compared to the 'worthiness' of voters in lightly populated states such as Wyoming or Idaho?

Can a President of the United States be elected with less than 50%+1 of the voters supporting him or her? Can the will of the people in a presidential election ever be overturned by judicial activism?

What if 50%+1 of the voters use 'legislative democracy' to make some aspect of what is fundamental to you (your particular religion, say,) illegal to practice? Will you just go, "Oh, well, guess I'd better do what the majority tell me to do"?

Hazumu

Gentlemen, The Constitution DOES NOT mention a "separation of church and state". It does say that "...Congress shall make no law respecting an establishment of religion or prohibiting the existence thereof... The intent was that there would be no State Religion like that in England. The Separation of Church and State doctrine was first pronounced by Thomas Jefferson in 1802, to a Baptist community in regards to the First Amendment. Jefferson's phrase "..wall of separation between church and state.." was first used by the SCOTUS in 1878 and many times since. It is an "expanded" interpretation of the First Amendment that has since been "mistakenly incorporated" into the Constitution. Again, those words were NEVER written in the Constitution.
Secondly, The AG of California has a duty to insure that ballot measures fall within the purview of state constitutionality. Measures that purposefully violate the "law" or civil rights would be rejected. Fairness has nothing to do with it and has NO legal standing. Equal rights does but only as defined under the law. This issue will eventually be adjudicated by the SCOTUS under the Inter-commerce Commerce Clause as both Mass. and Conn. have now adopted gay marriage as legal. Any contracts or other actions entered into by legally married gay couples must then be recognized by all states. Ergo, the eventual action by the SCOTUS to determine if said action violates the Constitution. I believe The point of the article is that State Judges should not overturn the will of the people through judicial activism. The SCOTUS will be the ultimate arbiter in this matter NOT the state courts. Again, I believe the writer was sounding a warning about the inherent dangers of over zealous judges. And once more be very careful what you wish for, for your ox may be gored next.

The main problem with prop 8 was that some how it was placed on the ballot.

Our constitution already defines equal rights for every body. So voting for equal rights was a voting error in the first place.

Equal rights have already been established a long time ago. There was no need to vote on any prop to allow people equal rights, because equal rights for everyone is a civil right. Voting to abolish a civil right was placed on the ballot illegally.

I believe Yes on prop 8 will be thrown out and everyone will have the equal right to marry very soon.

Believe it! Breath it! Live it! Demand it!

Hazumu, All of your postulations would be in violation of the Constitution, ergo would be ruled unconstitutional. The Constitution is the supreme legal document and as the law of the land takes precedent over all other documents except those rights and privileges specifically enumerated to the states. The Supremacy clause defines this also.

No on Prop 8 wrote:

The main problem with prop 8 was that some how it was placed on the ballot.
Our constitution already defines equal rights for every body. So voting for equal rights was a voting error in the first place.
Equal rights have already been established a long time ago. There was no need to vote on any prop to allow people equal rights, because equal rights for everyone is a civil right. Voting to abolish a civil right was placed on the ballot illegally.
I believe Yes on prop 8 will be thrown out and everyone will have the equal right to marry very soon.
Believe it! Breath it! Live it! Demand it!

Oh wait! We lost so let's change the rules to our loss doesn't count. If you boys would put this much effort into the proposition during the election season you would have won, now that you've lost, you'll do anything to just change the results, no matter what.

Bob;

That's "Ladies and Gentlemen"; I'm female. Or do men naturally have authority over women -- in YOUR world-view, of course...

(Please note, the comment is snarkily worded, but for a good reason. I've researched the underlying differences in worldviews between progressives and social fundamentalists. Based on that, the issue of Proposition 8 is a symptom of and a substitute for a much more deep and fundamental divide between world views -- one which is the reason that Yes on 8 supporters must "Defend" "Marriage" at all costs. The snarkiness is a rhetorical device that draws attention to a fundamental aspect of the debate that I feel may have been overlooked.)

No on Prop 8, You already have equal rights as defined under Civil Unions. Legalizing gay marriage is a veiled attempt to violate the aforementioned "Separation of Church and State". Because Mass. and Conn. have "legalized" gay marriage the under the Inter-Commerce Clause it will eventually be adjudicated by the SCOTUS. Marriage is not specifically covered in the Constitution but contracts are and that will be why the SCOTUS will eventually get involved. Again, fairness has NO legal standing but equal right under the law does and Civil Unions provide this protection. The real question is why this has become an issue at all? Answer that and you will get at the nub of the issue.

Maximus, Ronaldus Magnus would be proud of your response. The only real threat is when this issue finally winds its way to the SCOTUS. If the Court is liberal leaning then their interpretation will fall in line with those who believe gay marriage should be legal and we will have another never ending judicial problem like Roe v Wade. Sadly, because of the Inter-State Commerce Clause this gay marriage issue will go to the SCOTUS for adjudication. It is going to get a lot uglier. Again, I believe the writer's intent was over zealous judicial activism by the courts which was NEVER intended by the founding fathers as stated in the Federalist Papers.

Ms. Hazumu, sorry about that-but as my friends will tell you I am usually NOT PC but speak the truth as I see it regardless of where it leads. I am a strict constructionalist in regards to the Constitution hence my views. My views on marriage are irrelavent, but the sanctity of our precious Constitution must be preseved. I too believe there is way too much judicial activism which the founding fathers NEVER intended. Legislating from the bench is the worst form of tyranny as there are very few if any protections. Just as any trail lawyer.
Sorry again for my faux pas.

Robert--if seperate equal is okay then why did the courts find in the Brown VS Board of Education that seperate but equal learning establishments were unconstitutional because, essentially, while being "equal" they fundamentally were not equal because people viewed these "colored" colleges as less-equal to a "white" college, much like people view "civil unions" as less equal to "marriage" even though they provide many of the same benefits.

The courts could very much cite this ruling when discussing to overturn or uphold prop 8. Although race is different then sexual orientation, in California both are protected classes under the law and are supposed to be treated exactly the same...meaning same rights, same form, same benefits, same social standing etc.

Regardless of your opinion on same-sex marriage or religion one must admit it is wrong to remove what most believe is an important right--the right to marriage--just because you don't like who is getting married. I might not like it that a 20 year old is marrying a 40 year old, so I don't have to go to their wedding but I do not support taking away that 20 year olds right to marry a 40 year old much like people shouldn't care if a man marries another man as it is none of their business.

I don't get a say if someone marries for the fifth time after their fourth divorce, so why should someone get a say if i get married once?

If the courts are being "activists" for making gay marriage legal, then one must also admit that the judges who gave women the right to vote, put an end of segregation of the races, and more recently removed laws banning interracial marriage as being "activist" judges too since the majority of the people did not support any of their rulings on the matters at hand.

Robert wrote:

Hazumu, All of your postulations would be in violation of the Constitution, ergo would be ruled unconstitutional. The Constitution is the supreme legal document and as the law of the land takes precedent over all other documents except those rights and privileges specifically enumerated to the states. The Supremacy clause defines this also.

Right, it would violate the FEDERAL constitution. But the California Constitution is supposed to be its own stand-alone document to protect rights. In fact, it even goes beyond the federal constitution to protect women by requiring strict scrutiny of laws that discriminate based on sex (the federal constitution only requires intermediate scrutiny). If Prop. 8 is allowed to stand, then ANY right can taken out of the CALIFORNIA consitution by simply putting it up to a simple majority vote because, like it or not, California law remains that sexual orientation is ALSO a suspect class that requires strict scrutiny to be applied when a law that discriminates on that basis is enacted, just like race and gender. If a simple majority can "amend" the state constitution to take a (1) fundamental right (marriage, again, under the pre-prop. 8 constitution, california law was that marriage is a fundamental right for same-sex couples, like it or not) from a (2) suspect class (sexual orientation). That means any fundamental right can be taken from any suspect class by a simple majority amendment to the california constitution, and there would be no basis for a distinction to stop that from occurring. California minorities would have to rely exclusively on the federal constitution in the event that a majority wants to take their rights away.

John, good argument, but, the state constitution ONLY pertains to those "rights" enumerated to the states. The Supremacy Clause of the Federal Constitution trumps everything else, and, the Inter-State Commerce clause determines if certain state laws are unconstitutional, or must be amended so as to not violate the Federal Constitution. Your points on marriage is what will be argued in front of the California State Supreme Court. Regardless, it is only a matter of time before the Federal Supreme Court hears the validity of same sex marriage as pertains to the Inter-State Commerce Clause.
Concerning California, much depends on who argues the case and how it is framed. Still, judicial activism is a slippery slope that the founding fathers never intended.

The founding fathers never intended for slaves to be set free either but it happened.