Courts now denying Democracy.

[goldcatt]

The Federal Judge that struck down Gay marriage ban AMENDMENT has stated that no one but the State of California has the right to appeal the ban. The Governor and the Attorney General both refuse to do so.

Unfucking believable.


We have a court illegally denying the citizens the Democratic process through the Courts. We have a Governor and an Attorney General refusing to do their obligated duty for the people of the State.

Judge doubts gay marriage ban's backers can appeal - Yahoo! News

Time for another recall of a California Governor.

If that portion of the ruling stands then he has just insured no one will ever review his decision. Nice way to make law by decree that is not subject to review.

It is entirely subject to review. If the proper party appeals it. Many decisons are never appealed, it's not the end of the world.

 

[Quantum Windbag]

Who's denying the right to appeal? Not the Court. But only the losing party has standing to bring an appeal, and they are choosing not to. It's that simple.

You're right in that it won't settle the issue once and for all, but that's the CA AG's choice to make.

Maybe they just believe they have bigger things to deal with than spending millions of dollars and thousands of man hours on the three-ring circus this would inevitably turn out to be. I know with their problems it would make me think twice.

The state did not defend the proposition in the first place, the backers did. This ruling is essentially saying that the people who lost the case cannot appeal it, even though they were originally a party to the case.

Back up a minute. What, precisely, was the ruling?

To lift the stay. Why?

Because the stay was in place pending appeal. The party who was sued and lost, the State of California, is not pursuing an appeal. Therefore there is no reason for the stay.

The statement on standing is a matter of well-settled law, not any new precedent or order. That just is what it is.

What other groups could possibly be party to or have standing to appeal a Federal constitutional challenge to a portion of the constitution of the State of California? It is the law of the State, the State has the burden of defending...or choosing not to.

I think a lot of you are confusing the process by which the CA constitution was amended with the end result. Once a law is a law, it doesn't matter how it was made. It is law. Period. And it belongs to the State whether it is a legslative act or was done by ballot initiative. One is not more significant if challenged than the other.

Truly disregarding the vote would not have been overturning it, it would have been declaring it void as though it had never been. By acknowledging it as law and treating it the same as any other law, the Court was exactly correct. Don't mix your before and after here.

Like I said, I'd like to see this move forward too. I suspect the reason it isn't is part financial, part logistical and part political, but whatever it is the State is under no obligation to appeal. I'm not sure they still can now anyway. What was the date of the decision? Has the filing period passed? I'm horrible with dates.

The dates, as I understand them. The appellants have until 11 tonight to file a motion on continuing the stay, and the appellants have until 9 AM Monday to respond. The appellants then have until 5 PM the same day to respond to anything in that brief.

I understand the logic behind attacking the law, I am just pointing out that everyone who voted for that law is having their vote nullified, and that even those who did not vote for it can demonstrate harm because it is going to cost the state money to provide spousal benefits for everyone who gets married. this comes out of the pockets of taxpayers, not out of some mythical place that does not impact anyone. I think that gives every taxpayer standing, which makes the talking heads wrong to claim that no one has standing if California elects not to pursue the appeal.

Claiming that taxpayers do not have standing in government decisions is not settled law anywhere that I know of, and any attempt to argue otherwise is dangerous. If that argument stands it will remove all government action from the control of taxpayers and voters, even liberal taxpayers and voters.

I still believe this decision does not belong in the courts. Civil rights should not be decreed by the courts. Despite some peoples claims that we do not vote on civil rights that is precisely how we have gotten every single civil right we have. They have all come about through either direct action of the voters, or through the actions of their representatives.

 

[goldcatt]

The dates, as I understand them. The appellants have until 11 tonight to file a motion on continuing the stay, and the appellants have until 9 AM Monday to respond. The appellants then have until 5 PM the same day to respond to anything in that brief.

I understand the logic behind attacking the law, I am just pointing out that everyone who voted for that law is having their vote nullified, and that even those who did not vote for it can demonstrate harm because it is going to cost the state money to provide spousal benefits for everyone who gets married. this comes out of the pockets of taxpayers, not out of some mythical place that does not impact anyone. I think that gives every taxpayer standing, which makes the talking heads wrong to claim that no one has standing if California elects not to pursue the appeal.

Claiming that taxpayers do not have standing in government decisions is not settled law anywhere that I know of, and any attempt to argue otherwise is dangerous. If that argument stands it will remove all government action from the control of taxpayers and voters, even liberal taxpayers and voters.

I still believe this decision does not belong in the courts. Civil rights should not be decreed by the courts. Despite some peoples claims that we do not vote on civil rights that is precisely how we have gotten every single civil right we have. They have all come about through either direct action of the voters, or through the actions of their representatives.

The problem with that argument though is twofold.

First, the vote was not nullified. The residents of the State voted to amend their state constitution. It was so amended. Once that happened, once the amendment was in place, the vote was honored and it is merely another part of the state constitution on the same level with any other part. The Court did not deny the existence of the amendment. It did not disregard the vote. It in fact acknowledged the validity of the vote by acknowledging the existence of the law. BUT...it makes no difference how that law came to be. The Court must treat it as any other law.

Your argument would place a popular vote on State law above the Federal Constitution no matter what the content or how blatant the unconstitutionality of the law. That would be giving states an end run around the Federal constitution, which cannot be allowed. The COTUS is supreme, any law from any source not in accordance with it can be overturned. That's all.

The second problem is the States are not guaranteed direct democracy. They are guaranteed a Republican form of government. If they choose to allow law to be made by this sort of direct democratic procedure, that's up to them. But the Federal courts are under no obligation to give it any special consideration or protection. They are obligated, however, to observe their own Article 3 cases and controversies jurisdiction and to strictly protect the Republican forms as well as standard due process.

In other words, like it or not (and I'm not sure I do) the Court did its job. The decision is reviewable so long as it is appealed by the proper party with standing to do so. Most cases are not appealed. I'm not really surprised this one won't be.

As far as taxpayer standing, I'll go look up the cases for you. Basically, it's been long established that there has to be not only a direct harm (one element of standing), but also the court has to be able to direct the parties to to something, or make an order for recompense for something. In this case, it can and did order the State to not enforce Prop 8. What can it order Joe Taxpayer to do with regards to the Constitution of the State of California? Nothing. Harm is only one element of Article 3 standing, it isn't the only one.

And I would disagree voting is how we've gotten every civil right we have. Dozens of names spring to mind. Roe. Brandenburg. Griswold. Loving. Lawrence. Brown. Sisters of Mercy. Miranda. And many, many others. The Courts are exactly where most of our rights come from. Why? Because they are the ones who uphold the rights and interests of the minority against mob rule. Without them we would probably still be living under the Alien and Sedition Acts.

Sorry about the novel.

 

[George Costanza]

As far as I know they haven't released their reason, so it's all speculation. But I can tell you a Federal appeal, whether it's through the AG's office or farmed out, is a long, expensive and incredibly time-consuming process. Especially in such a high profile case. We really are talking millions of dollars and thousands of man hours. It's not something to be done on a whim, or with a case you don't think is solid. Especially not with taxpayer money.

Let's be realistic, the Governor's office was never all that crazy about Prop 8 to begin with. They defended it and spent the time and money on it at the trial level, perhaps they are of the opinion it's a losing battle and throwing good money after bad to go on. Or they simply don't want to for political reasons. If I feel like being completely cynical I could see certain elements of the partisan bomb squad leaning on them to choose not to pursue a final outcome as well, it would be against their interests to settle an issue that raises so much cash. Who knows?

The point is, it's their prerogative. I can't say I don't agree with you on some level, I'd like to see the whole thing resolved once and for all and we can get one of the wedge diversions off the table. But it's not my call.

There was a front page story in the L.A. Times that said the reason Arnold and Brown were refusing to appeal was that they were both opposed to Prop. 8 from the very beginning.

 

[ConHog]

If I were the ones in California who got the votes for this Bill, the next time I would get a bill that just declares that CA will issue NO marriage licenses period. You want rights sign a civil contract, you want marriage find a church.

 

[Quantum Windbag]

The problem with that argument though is twofold.

First, the vote was not nullified. The residents of the State voted to amend their state constitution. It was so amended. Once that happened, once the amendment was in place, the vote was honored and it is merely another part of the state constitution on the same level with any other part. The Court did not deny the existence of the amendment. It did not disregard the vote. It in fact acknowledged the validity of the vote by acknowledging the existence of the law. BUT...it makes no difference how that law came to be. The Court must treat it as any other law.

I understand the legal difference here, but the fact is that the vote was nullified. Everyone who is not a lawyer at heart knows this, and even if the lawyers stand there all explain that this is not what happened, they are wrong.

That said, can we skip this because this is not the point I am trying to make here.

Your argument would place a popular vote on State law above the Federal Constitution no matter what the content or how blatant the unconstitutionality of the law. That would be giving states an end run around the Federal constitution, which cannot be allowed. The COTUS is supreme, any law from any source not in accordance with it can be overturned. That's all.

Wrong.

I am not saying that people get to vote to overturn the Constitution, I am saying that the job of the courts is to interpret law in light of the Constitution, and that does not include defining rights that do not exist in the Constitution, or in law.

The second problem is the States are not guaranteed direct democracy. They are guaranteed a Republican form of government. If they choose to allow law to be made by this sort of direct democratic procedure, that's up to them. But the Federal courts are under no obligation to give it any special consideration or protection. They are obligated, however, to observe their own Article 3 cases and controversies jurisdiction and to strictly protect the Republican forms as well as standard due process.

Here is where you are leaving the law, and logic, behind.

The Constitution was designed as a series of checks and balances. People keep arguing that the job of the courts is to interpret the Constitution, but that is simplistic at best, and completely wrong at worst. The legislative branch was given power to interpret the Constitution, and to write laws designed to enforce it. What the courts do is determine how those laws apply to real people when there are questions. They are not there to look at the Constitution and determine that rights exist that are not spelled out by law, or in the Constitution.

When the legislature abuses its power the courts step in, and, the way it should work, is when the courts abuse their power the legislature can step in. Unfortunately, when the courts abuse their power we are fucked. When the court ruled that the 14th Amendment did not mean what it said, we were stuck with Jim Crow laws for decades, despite the fact that federal law specifically was written to prevent that type of thing from happening.

The checks and balances are gone, and that is bad for everyone, even if most people do not realize it.

In other words, like it or not (and I'm not sure I do) the Court did its job. The decision is reviewable so long as it is appealed by the proper party with standing to do so. Most cases are not appealed. I'm not really surprised this one won't be.

If the court did its job it would have ruled it did not have jurisdiction over a purely state issue that was already defined by both federal law and judicial precedent. We both know that, but that is not the world we live in, which is a problem even if you do not want to admit it. (Which you apparently understand, which is why you have some reservations about the case.)

As far as taxpayer standing, I'll go look up the cases for you. Basically, it's been long established that there has to be not only a direct harm (one element of standing), but also the court has to be able to direct the parties to to something, or make an order for recompense for something. In this case, it can and did order the State to not enforce Prop 8. What can it order Joe Taxpayer to do with regards to the Constitution of the State of California? Nothing. Harm is only one element of Article 3 standing, it isn't the only one.

If the harm is being done to John Q. Public the court can rule the institutions that are causing that harm to stop, even if that harm is not direct, or instantly measurable. That is the basis of most conservation law, unless I am misunderstanding how this works. If every case had to meet all those standards no one would be able to sue corporations for dumping waste, because the people who are not doing it would not have standing because they cannot be ordered to do anything.

That did not make as much sense when I wrote it as it did when I thought it, but I do not know how to say it any other way.

And I would disagree voting is how we've gotten every civil right we have. Dozens of names spring to mind. Roe. Brandenburg. Griswold. Loving. Lawrence. Brown. Sisters of Mercy. Miranda. And many, many others. The Courts are exactly where most of our rights come from. Why? Because they are the ones who uphold the rights and interests of the minority against mob rule. Without them we would probably still be living under the Alien and Sedition Acts.

Griswold and Lawrence are an outgrowth of our right to privacy.

Roe, unfortunately, is an example of why the courts should not be defining a civil right. Why do we have a civil right to an unnecessary medical procedure, and why do we not have the same right to all unnecessary medical procedures?

Brandenburg affirmed our right to free speech, first amendment, it correctly refuted an attempt to take that right away from us.

Loving and Brown are clear violations of civil rights laws and the 14th Amendment, and thus defined no new rights.

Miranda is not a civil right, it is a procedural rule for courts.

Never heard of Sisters of Mercy, but I am sure it only affirmed a right we already had.

All of the actual civil rights we have come from the Constitution and laws.

Sorry about the novel.

I like novels.

The merits of this decision are debatable on many levels, but in my opinion the worst of them was an attempt by the court to define a right that does not exist because it has not come from the people, or the Constitution.

 

[syrenn]

If I were the ones in California who got the votes for this Bill, the next time I would get a bill that just declares that CA will issue NO marriage licenses period. You want rights sign a civil contract, you want marriage find a church.

Not a chance in hell.

Im not gay
I AM married
And it had NOTHING to do with any church.
We were married by the Chief Justice of the State of California.

 

[ConHog]

If I were the ones in California who got the votes for this Bill, the next time I would get a bill that just declares that CA will issue NO marriage licenses period. You want rights sign a civil contract, you want marriage find a church.

Not a chance in hell.

Im not gay
I AM married
And it had NOTHING to do with any church.
We were married by the Chief Justice of the State of California.

Good point, and I should have clarified as I have in earlier threads. I'm fine with some private business issuing marriage licenses , I don't care. just get the state out of it.

 

[syrenn]

If I were the ones in California who got the votes for this Bill, the next time I would get a bill that just declares that CA will issue NO marriage licenses period. You want rights sign a civil contract, you want marriage find a church.

Not a chance in hell.

Im not gay
I AM married
And it had NOTHING to do with any church.
We were married by the Chief Justice of the State of California.

Good point, and I should have clarified as I have in earlier threads. I'm fine with some private business issuing marriage licenses , I don't care. just get the state out of it.

To have a legal marriage you must have a licensee. For a marriage to be recognized nationally you need a license issued by the government.

 

[ConHog]

The problem with that argument though is twofold.

First, the vote was not nullified. The residents of the State voted to amend their state constitution. It was so amended. Once that happened, once the amendment was in place, the vote was honored and it is merely another part of the state constitution on the same level with any other part. The Court did not deny the existence of the amendment. It did not disregard the vote. It in fact acknowledged the validity of the vote by acknowledging the existence of the law. BUT...it makes no difference how that law came to be. The Court must treat it as any other law.

I understand the legal difference here, but the fact is that the vote was nullified. Everyone who is not a lawyer at heart knows this, and even if the lawyers stand there all explain that this is not what happened, they are wrong.

That said, can we skip this because this is not the point I am trying to make here.

Your argument would place a popular vote on State law above the Federal Constitution no matter what the content or how blatant the unconstitutionality of the law. That would be giving states an end run around the Federal constitution, which cannot be allowed. The COTUS is supreme, any law from any source not in accordance with it can be overturned. That's all.

Wrong.

I am not saying that people get to vote to overturn the Constitution, I am saying that the job of the courts is to interpret law in light of the Constitution, and that does not include defining rights that do not exist in the Constitution, or in law.



Here is where you are leaving the law, and logic, behind.

The Constitution was designed as a series of checks and balances. People keep arguing that the job of the courts is to interpret the Constitution, but that is simplistic at best, and completely wrong at worst. The legislative branch was given power to interpret the Constitution, and to write laws designed to enforce it. What the courts do is determine how those laws apply to real people when there are questions. They are not there to look at the Constitution and determine that rights exist that are not spelled out by law, or in the Constitution.

When the legislature abuses its power the courts step in, and, the way it should work, is when the courts abuse their power the legislature can step in. Unfortunately, when the courts abuse their power we are fucked. When the court ruled that the 14th Amendment did not mean what it said, we were stuck with Jim Crow laws for decades, despite the fact that federal law specifically was written to prevent that type of thing from happening.

The checks and balances are gone, and that is bad for everyone, even if most people do not realize it.



If the court did its job it would have ruled it did not have jurisdiction over a purely state issue that was already defined by both federal law and judicial precedent. We both know that, but that is not the world we live in, which is a problem even if you do not want to admit it. (Which you apparently understand, which is why you have some reservations about the case.)



If the harm is being done to John Q. Public the court can rule the institutions that are causing that harm to stop, even if that harm is not direct, or instantly measurable. That is the basis of most conservation law, unless I am misunderstanding how this works. If every case had to meet all those standards no one would be able to sue corporations for dumping waste, because the people who are not doing it would not have standing because they cannot be ordered to do anything.

That did not make as much sense when I wrote it as it did when I thought it, but I do not know how to say it any other way.

And I would disagree voting is how we've gotten every civil right we have. Dozens of names spring to mind. Roe. Brandenburg. Griswold. Loving. Lawrence. Brown. Sisters of Mercy. Miranda. And many, many others. The Courts are exactly where most of our rights come from. Why? Because they are the ones who uphold the rights and interests of the minority against mob rule. Without them we would probably still be living under the Alien and Sedition Acts.

Griswold and Lawrence are an outgrowth of our right to privacy.

Roe, unfortunately, is an example of why the courts should not be defining a civil right. Why do we have a civil right to an unnecessary medical procedure, and why do we not have the same right to all unnecessary medical procedures?

Brandenburg affirmed our right to free speech, first amendment, it correctly refuted an attempt to take that right away from us.

Loving and Brown are clear violations of civil rights laws and the 14th Amendment, and thus defined no new rights.

Miranda is not a civil right, it is a procedural rule for courts.

Never heard of Sisters of Mercy, but I am sure it only affirmed a right we already had.

All of the actual civil rights we have come from the Constitution and laws.

Sorry about the novel.

I like novels.

The merits of this decision are debatable on many levels, but in my opinion the worst of them was an attempt by the court to define a right that does not exist because it has not come from the people, or the Constitution.

Small point. The people COULD vote to overturn parts of the COTUS. It has in fact happened before. Obviously it would be VERY difficult, but if the votes could be found the 14th could be nullified, as could the 1st, as could any amendment or portion of the COTUS.

Need more proof than the 18th/21st? Look no further than those who wanted to change the COTUS so that Ahnold could run for POTUS. They failed of course, but the process is there to attempt it.

 

[Procrustes Stretched]

The Federal Judge that struck down ...

It's part of our republican system that Franklin warned about being able to keep. In our republican system, federal judges strike down unconstitutional state laws. It's a republic, if we can keep it.

 

[ConHog]

Not a chance in hell.

Im not gay
I AM married
And it had NOTHING to do with any church.
We were married by the Chief Justice of the State of California.

Good point, and I should have clarified as I have in earlier threads. I'm fine with some private business issuing marriage licenses , I don't care. just get the state out of it.

To have a legal marriage you must have a licensee. For a marriage to be recognized nationally you need a license issued by the government.

Why? marriage isn't mentioned ANYWHERE in the COTUS. It's simple. change the various requirements allowing anyone to have the privileges we now associate with marriage via a contract and do away with state supported marriage. You have no right to a government approved marriage, nor is that within their power to do anyway.

 

[syrenn]

Good point, and I should have clarified as I have in earlier threads. I'm fine with some private business issuing marriage licenses , I don't care. just get the state out of it.

To have a legal marriage you must have a licensee. For a marriage to be recognized nationally you need a license issued by the government.

Why? marriage isn't mentioned ANYWHERE in the COTUS. It's simple. change the various requirements allowing anyone to have the privileges we now associate with marriage via a contract and do away with state supported marriage. You have no right to a government approved marriage, nor is that within their power to do anyway.

Did you jump over a broom to tie the knot?

 

[ConHog]

To have a legal marriage you must have a licensee. For a marriage to be recognized nationally you need a license issued by the government.

Why? marriage isn't mentioned ANYWHERE in the COTUS. It's simple. change the various requirements allowing anyone to have the privileges we now associate with marriage via a contract and do away with state supported marriage. You have no right to a government approved marriage, nor is that within their power to do anyway.

Did you jump over a broom to tie the knot?

I'm not wrong Syrenn, the word marriage appears NOWHERE in the COTUS. By definition that means that you do not have that right.

 

[Procrustes Stretched]

Why? marriage isn't mentioned ANYWHERE in the COTUS. It's simple. change the various requirements allowing anyone to have the privileges we now associate with marriage via a contract and do away with state supported marriage. You have no right to a government approved marriage, nor is that within their power to do anyway.

the arguments is a bogus philosophical circle jerk because there is no way in hell people would give up the so-called marriage penalties we heard conservative lying about a few years back.

 

[Procrustes Stretched]

I'm not wrong Syrenn, the word marriage appears NOWHERE in the COTUS. By definition that means that you do not have that right.

an opinion substituting as fact is still an opinion.

The Supreme Court of the US has stated otherwise, in numerous cases, with numerous reasoning, why marriage is a fundamental right.

 

[syrenn]

Why? marriage isn't mentioned ANYWHERE in the COTUS. It's simple. change the various requirements allowing anyone to have the privileges we now associate with marriage via a contract and do away with state supported marriage. You have no right to a government approved marriage, nor is that within their power to do anyway.

Did you jump over a broom to tie the knot?

I'm not wrong Syrenn, the word marriage appears NOWHERE in the COTUS. By definition that means that you do not have that right.

Did you jump over a broom stick to tie the knot?

 

[ConHog]

I'm not wrong Syrenn, the word marriage appears NOWHERE in the COTUS. By definition that means that you do not have that right.

an opinion substituting as fact is still an opinion.

It is not an opinion that the word marriage does not appear in the COTUS, it is a FACT. it is not an opinon that our personal rights that are protected by the COTUS are enumerated within the COTUS, that is a fact.

One could make an argument that the government has the right to issue licenses, and that would be an opinion. My opinion is that because it is a fact that marriage is not mentioned in the COTUS that the government in fact has exceeded their authority by doing so. I am fine with debating whether that is true or not, but to argue that we have a constitutional right to marriage is silly.

 

[ConHog]

Why? marriage isn't mentioned ANYWHERE in the COTUS. It's simple. change the various requirements allowing anyone to have the privileges we now associate with marriage via a contract and do away with state supported marriage. You have no right to a government approved marriage, nor is that within their power to do anyway.

the arguments is a bogus philosophical circle jerk because there is no way in hell people would give up the so-called marriage penalties we heard conservative lying about a few years back.

I can't help what so called conservatives have lied about in the past. As you know I support allowing gays to marry. I simply think they should marry in a non state sanctioned marriage, the same as heterosexuals should. That's not discrimination at all., that's fair.

I'm not wrong Syrenn, the word marriage appears NOWHERE in the COTUS. By definition that means that you do not have that right.

an opinion substituting as fact is still an opinion.

There is no opinion, the word MARRIAGE absolutely is not in the COTUS.

The Supreme Court of the US has stated otherwise, in numerous cases, with numerous reasoning, why marriage is a fundamental right.

fundamental right =/= constitutional right to a state endorsed marriage. No court ruling has ever EVER ruled that the government must allow everyone to get married, all they have ruled is that the government can't discriminate by picking and choosing who they allow to get married. A correct ruling, if you offer some privilege to one, you offer it to all, However there is nothing in any of the rulings or in the COTUS itself which would prevent a state from saying "we aren't issuing marriage licenses, get one from the church of your choice , or a private business for the heathens, or just have a civil contract and we will honor it but we won't issue state licenses at all."

your fundamental right only applies if the government starts throwing people in jail for being married, then you can say hey that's a violation.

 

[Procrustes Stretched]

I'm not wrong Syrenn, the word marriage appears NOWHERE in the COTUS. By definition that means that you do not have that right.

an opinion substituting as fact is still an opinion.

2) It is not an opinion that the word marriage does not appear in the COTUS, it is a FACT. (1)it is not an opinon that our personal rights that are protected by the COTUS are enumerated within the COTUS, that is a fact.

3) One could make an argument that the government has the right to issue licenses, and that would be an opinion. My opinion is that because it is a fact that marriage is not mentioned in the COTUS that the government in fact has exceeded their authority by doing so. I am fine with debating whether that is true or not, but to argue that we have a constitutional right to marriage is silly.

1) The Constitution explicitly says to not do what you have done, "construed to deny or disparage" others rights not enumerated in the Constitution, but retained by the people.

2) didn't say that. please stop making up arguments. I'll bore too easily.

3) The Supreme Court of the US has said marriage is a fundamental right. Arguing that the state governments have no rights to issue licenses as you seem to be doing is not only silly, it approaches stupidity.

The states issue marriage licenses as it is not a duty given to the federal government. The states were issuing marriage licenses during the whole of US history, no?