But Arnold has said he'll veto it. The California bill needed 41 votes to pass, and that's all it got. It may not have enough support to over turn the veto.
And in Massachusetts, State Attorney General Tom Reilly said yesterday that it's okay to put on the 2008 ballot an amendment to the state constituion banning future same sex marriages (to prevent legal challenges to the amendment, existing same sex marriages will not be invalidated).
CNN says: "Gov. Arnold Schwarzenegger announced Wednesday he will veto a bill that would have made California the first state to legalize same-sex marriage through its elected lawmakers."
He might have kept quiet beforehand, so that if it failed to pass he wouldn't have to take a position.
Except that it violates a law passed by an ovewhelming majority at a referendum. The legislature has no power or right to overturn referendum results. So this is utterly unconstitutional, and not anything to celebrate.
The referendum was five years ago. Views change. The referendum also did not change the California Constitution. Plus the referendum was about whethr CA should accept OTHER states same-sex marraiges, not whether CA should allow same-sex marriage.
Views do change. So if you think they've changed in this regard, hold another referendum. The legislature has no power to override a statute passed by referendum. That's in the constitution. Its attempt to do so is unconstitutional.
The second claim is pure sophistry. The referendum established the definition of marriage in California; the amended text doesn't say "for the purposes of this section, and this section only", and certainly neither the text of the question nor any of the campaign material or speeches, on either side, suggested in any way that the change would relate only to out-of-state marriages.
Beside which, I very much doubt that a state which allows domestic gay marriages can refuse to recognise interstate ones. The Full Faith and Credit clause would seem to exclude such an option (provided that the specific interstate marriage in question would have been allowed had it been performed locally), and I doubt DOMA would help in such a case. So that can't have been the referendum's effect.
You are misunderstanding how law works. How a law is enacted does not determine whether it can be overridden. The type of law determines it. So a statute cannot override a constitutional provision. A regulation cannot override a statute. But a statute can override an earlier statute. A law has no special status by being passed by referendum rather than legislature.
As you can see, the proposition altered the Family Code of California, not the state Constitution and could, therefore, be overridden by the legislature. One of the cornerstones of representative democracies (i.e. our republican form of government) is that the legislature is assumed to represent the people and if the people do not like what the legislature passes they vote them out. Passing and then repealing a law is a common thing in any type of democracy.
One other thing. You will note that the test of Article II Sec. 8 does not say that a law passed by referendum cannot be overridden by the legislature.
SEC. 8. (a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them. (b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election. (c) The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. The Governor may call a special statewide election for the measure.
(d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect. (e) An initiative measure shall not include or exclude any political subdivision of the State from the application or effect of its provisions based upon approval or disapproval of the initiative measure, or based upon the casting of a specified percentage of votes in favor of the measure, by the electors of that political subdivision. (f) An initiative measure shall not contain alternative or cumulative provisions wherein one or more of those provisions would become law depending upon the casting of a specified percentage of votes for or against the measure.
No, of course section 8 doesn't say it. Section 10(c) does:
The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.
Prop 22 was an initiative statute, and it doesn't explicitly permit the legislature to amend or repeal it, so it can't be amended or repealed without the approval of the electors.
Well, at first glance reading Section 10 it seems you are right.
However, reading the legislation that was passed, the legislature's position is that the current legislation does not amend the prior act because a California state court has held it unconstitutional.
Now the fact that issue is currently before the California Supreme Court does not negate the prior decision. A lower court's decision is in effect until overruled by a higher court. I believe that the lower court decision has been stayed pending review by the California Supreme Court. However, that does not mean that the lower court decision has no validity, just that marriages cannot be performed in the state on the basis of such decision because of the civil consequences if such a decision was overruled by the state Supreme Court.
I will admit that my reading of Section 8 was wrong, not having read Section 10. But I think it is a long way from saying that the legislature's act was unconstitutional since the prior law has been held unconstitutional.
If the lower court decision was stayed, it was stayed. It can't be stayed for one and not for all. If officiants can't hold such marriages, and will be punished if they do, then the statute is still in effect, and that binds the legislature every bit as much as it does marriage officiants. If the Supreme Court overturns it, then it will be out, and the legislature will be able do whatever it wants, until another initiative passes; until then, the legislature is bound by the initiative-passed statute, and has no business overriding the will of the electors whom they supposedly represent.
Staying a decision is different from overturning it. Staying a decision does not mean that the decision has no effect. For example a plaintiff might win a case and the defendant would have to pay money. The defendant then appeals. Often the decision might be stayed on the grounds that if the plaintiff is paid he, she or it will abscond with the money during the pendency of the appeal. The defendant will often be able to get a stay pending appeal if he, she, it posts a bond. I do agree upon reflection that the law was to an extent premature in that the Supreme Court has not ruled on the issue. However, there are in many states laws on the books that are unconstitutional that are placeholders in case the law becomes constitutional. For example several states have laws making abortion illegal in anticipation of Roe v. Wade being overturned. So it was not appropriate for the legislature to pass the law in anticipation of the California Supreme Court upholding the finding that the prior law is unconstitutional. Of course if the California Supreme Court held the other way then the referendum law would have precedence until another referendum was passed. As such Arnold Schwarzenegger's reasons for vetoing the law aren't valid. if the California Supreme Court holds the referendum unconstitutional then the new law is perfectly valid. If the Supreme Court holds the prior law constitutional then there is no reason to veto this law as it would have no effect.
The reason to veto the law is that it is illegal and wrong for the legislature to pass unconstitutional laws, and for the governor to ratify them.
Some politicians have a practise of passing laws they know or greatly suspect are unconstitutional, for political reasons, and rely on the court to overturn them, as if the constitutionality of a law is entirely the business of the judicial branch, and no concern of theirs; this practise is immoral and illegal, and those who engage in it ought to be pilloried for it. Each branch of government, and each member of the legislature and the executive, has an independent duty to uphold the constitution, including the duty to interpret it for themselves, in order to guide their actions.
The practice is certainly not illegal. As to whether it's immoral, I doubt it. It certainly happens a lot more on the right than the left. Look at my previous example of abortion. Anti- flag burning laws too. There are also numerous laws that clearly violate the Establishment Clause.
Anyway, you contradict yourself by saying that the legislature passes laws that are unconstitutional and then that legislators must interpret the constitution themselves. If they are interpreting the constitution then they can't. Plus people can in some instances reasonably disagree as to whether the constitution applies in a given situation. Otherwise every Supreme Court opinion would be unanimous.
Anyway, I've enjoyed this back and forth so I've friended you. Don't feel you have to reciprocate.
It certainly is illegal. "Congress shall make no law..."; that is a law binding Congress, and when Congress makes such a law it is violating that law. Any legislator who votes for it is violating his oath.
However. There is nothing in the USA constitution forbidding states from making laws against abortion. That a passing majority on the Supreme Court pretends otherwise is merely a practical hindrance; such state laws, despite being 100% constitutional, cannot be enforced, because the lower federal courts, who have the power to stop such enforcement, are under the supervision of the Supreme Court, and bound to follow its opinions, no matter how wrong they are. State legislatures are not so bound, so they are entitled to make such laws, both as statements of principle and in anticipation of the day that the Supreme Court will come to its senses. (The same applies, of course, to federal legislators, but anti-abortion laws don't tend to be federal).
Anti-flag-burning laws: it is, I suppose, possible that many legislators actually believe such laws don't break the 1st amendment, in which case they're entitled to make the laws, even if the courts will block enforcement. I think it more likely, though, that they know perfectly well that the laws are unconstitutional, and they just don't care. I'm not aware of a respectable legal theory that can justify such laws.
Establishment clause law is again a murky case. The Lemon test is highly controversial, is disbelieved by many, and is likely to be overturned, especially if Michael McConnell gets onto the Supreme Court. Legislators, state or federal, who disagree with it (or state legislators who don't see where in the hidden crevices of the 14th amendment the Establishment clause can possibly lie hidden), are within their rights to make laws that contradict it.
In the case of the California law we are discussing, the legislature would be justified in passing this law if the majority who voted for it honestly believed that the statute passed by initiative is unconstitutional, and therefore not binding on them. And if the governor honestly believed that, then he would not be obliged to veto it. In my opinion, however, that is such a wacky belief that nobody with even a passing knowledge of the constitution could possibly believe it. I don't think the lower court which overturned the initiative believed it, and I don't think the legislators who voted for this law believed it. I think none of them care about the law, they only care about the outcome and the politics. And so I condemn them.
That a passing majority on the Supreme Court pretends otherwise is merely a practical hindrance
You have completely lost your intellectual integrity now. You can't be intellectually honest and one minute say that a legislature shouldn't be passing an unconstitutional law (that's pro-same-sex marriage) and then the next minute say that it's okay for a legislature to pass an unconstitutional law that's anti-abortion because the Supreme Court may overturn it. Wasn't that the point in California? That the California Supreme Court would overturn what had been an unconstitutional law? In fact the California case is stronger because there is an actual lower court deicsion that is currently the law. whereas with abortion those laws are unconstitutional. By your line of reasoning the courts aren't the arbiter of what is constitutional, but you are.
It's improtant to point out that Supreme Court precedents are what they are. They are not what they might be with a new Justice on it. Or even what they might be with a new justice that has been confirmed. Certainly not what they might be with a justice that has not been nominated, much kess confirmed. The Supreme Court came to this exact conclusion in Agostini v. Felton regarding the establishment clause.
I happen to be somewhet of an expert on the Establishment Clause, having published several articles relating to the Establishment Clause and education. The Lemon Clause is hardly any of the things you mentioned. Although it is muh maligned and Justice Scalia once compared it to a ghoul in a late night horror film. It is, however, the law. The only adjustment to the Lemon test has been to fold the "excessive entanglement" prong into the "effect" prong. That does NOT mean that an excessive entanglement (between church and state) would be constitutional. It means that such an analysis is done under the effect prong.
There is absolutely no intellectual integrity in the position that a legislator who "disagrees" with Supreme Court precedent relating to the Establishment Clause are within their rights to pass a law that contradicts. Furthermore you say that you don't think the legislators believd it was constitutional. But it's right in the statute that it was their bleif that the prior referendum was unconstitutional and that having been found unconstitutional by the lower court and three other state supreme courts they anticipated the California Supreme Court to find the referendum unconstitutional. Such a position has much more intellectual honesty than saying that if some possible Supreme Court Justice is confirmed that the interpretation of the Establishment clause will change.
And how can you say that you think that the court did not believe that the initiative was unconstitutional. There is a provision in the California constitution that applies to rights that it applied. Just be honest and say you don't agree with the position. But the fact that you don't agree with a position does not make it wrong.
You have completely lost your intellectual integrity now.
Gee, thanks. And you've descended to personal insults. How exactly do you expect me to respond to this?
You can't be intellectually honest and one minute say that a legislature shouldn't be passing an unconstitutional law (that's pro-same-sex marriage) and then the next minute say that it's okay for a legislature to pass an unconstitutional law that's anti-abortion because the Supreme Court may overturn it.
I'm not saying it's OK for a legislature to pass an unconstitutional law, I'm explicitly saying that state laws against abortion are not unconstitutional. That a passing majority on the Supreme Court thinks otherwise is merely a practical hindrance to enforcement.
The constitution means what it means, and that doesn't change according to the whims of the Supreme Court. The court's job is to do its best to understand the constitution; sometimes it succeeds in this job, and sometimes it fails, but whether it succeeds or fails doesn't change what the actual constitution means. A law that contradicts the constitution is unconstitutional even if the Supreme Court mistakenly allows it to be enforced, and a law that does not fall afoul of the consitution is constitutional, even if the Court mistakenly refuses to enforce it.
Many constitutional provisions are sufficiently vague that honest people can hold different opinions about what they actually mean, when applied to a given case. Other questions are perfectly clear, and no honest person could come to a different conclusion. But there are judges sitting on the bench, both on state and federal courts, who don't care what a law actually means; they imagine that they have the power to make it mean whatever they want, and to ignore what a law says in favour of whatever they think it ought to say. Such judges, when they hand down decisions that they know are wrong, act ultra vires, and if there were a foolproof, objective way to single out such judges they ought to be removed from office and their decisions ignored. Unfortunately, I don't think such a way exists, and shortcuts to get around that would probably cause more harm than they would cure. But that's a prudential consideration, and doesn't change the underlying truth.
The constitution means what it means, and that doesn't change according to the whims of the Supreme Court.
So Marbury v. Madison and 200 years of jurisprudence are meaningless and you get to say what the constitution means. No. That's why, in part, we have a Supreme Court to-to tell us what the Constitution means.
The easy example is flogging and butchering ears. When the 8th Amendment of the Constitution was passed those were common punishments. So we need the supreme court to say what "cruel and unusual punishment means." Similarly we need the court to tell us what "estalishment of religion" and "equal protection" mean. Original intent or strict construction sound all well and good in theory. But in practice it's impossible. The constitution was not frozen in 1789, nor the Bill of Rights frozen in 1791.
Lastly to say that an argument that is flat out contradictory is not intellectually an insult. I was just calling you on your rhetorical device. There is a difference between insulting you and insulting your argument.
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timeasmymeasure
no subject
Date: 2005-09-08 03:48 pm (UTC)And in Massachusetts, State Attorney General Tom Reilly said yesterday that it's okay to put on the 2008 ballot an amendment to the state constituion banning future same sex marriages (to prevent legal challenges to the amendment, existing same sex marriages will not be invalidated).
no subject
Date: 2005-09-09 06:03 am (UTC)no subject
Date: 2005-09-09 06:23 am (UTC)He might have kept quiet beforehand, so that if it failed to pass he wouldn't have to take a position.
no subject
Date: 2005-09-09 06:32 am (UTC)no subject
Date: 2005-09-08 05:45 pm (UTC)no subject
Date: 2005-09-11 03:56 am (UTC)no subject
Date: 2005-09-11 04:09 am (UTC)The second claim is pure sophistry. The referendum established the definition of marriage in California; the amended text doesn't say "for the purposes of this section, and this section only", and certainly neither the text of the question nor any of the campaign material or speeches, on either side, suggested in any way that the change would relate only to out-of-state marriages.
Beside which, I very much doubt that a state which allows domestic gay marriages can refuse to recognise interstate ones. The Full Faith and Credit clause would seem to exclude such an option (provided that the specific interstate marriage in question would have been allowed had it been performed locally), and I doubt DOMA would help in such a case. So that can't have been the referendum's effect.
no subject
Date: 2005-09-11 01:20 pm (UTC)The test of Prop 22 is here: http://primary2000.ss.ca.gov/VoterGuide/Propositions/22text.htm
As you can see, the proposition altered the Family Code of California, not the state Constitution and could, therefore, be overridden by the legislature. One of the cornerstones of representative democracies (i.e. our republican form of government) is that the legislature is assumed to represent the people and if the people do not like what the legislature passes they vote them out. Passing and then repealing a law is a common thing in any type of democracy.
no subject
Date: 2005-09-11 06:26 pm (UTC)no subject
Date: 2005-09-11 01:23 pm (UTC)http://www.leginfo.ca.gov/.const/.article_2
SEC. 8. (a) The initiative is the power of the electors to propose
statutes and amendments to the Constitution and to adopt or reject
them.
(b) An initiative measure may be proposed by presenting to the
Secretary of State a petition that sets forth the text of the
proposed statute or amendment to the Constitution and is certified to
have been signed by electors equal in number to 5 percent in the
case of a statute, and 8 percent in the case of an amendment to the
Constitution, of the votes for all candidates for Governor at the
last gubernatorial election.
(c) The Secretary of State shall then submit the measure at the
next general election held at least 131 days after it qualifies or at
any special statewide election held prior to that general election.
The Governor may call a special statewide election for the measure.
(d) An initiative measure embracing more than one subject may not
be submitted to the electors or have any effect.
(e) An initiative measure shall not include or exclude any
political subdivision of the State from the application or effect of
its provisions based upon approval or disapproval of the initiative
measure, or based upon the casting of a specified percentage of votes
in favor of the measure, by the electors of that political
subdivision.
(f) An initiative measure shall not contain alternative or
cumulative provisions wherein one or more of those provisions would
become law depending upon the casting of a specified percentage of
votes for or against the measure.
no subject
Date: 2005-09-11 06:24 pm (UTC)no subject
Date: 2005-09-11 06:58 pm (UTC)However, reading the legislation that was passed, the legislature's position is that the current legislation does not amend the prior act because a California state court has held it unconstitutional.
http://info.sen.ca.gov/pub/bill/asm/ab_0001-0050/ab_19_bill_20050512_amended_asm.pdf
Now the fact that issue is currently before the California Supreme Court does not negate the prior decision. A lower court's decision is in effect until overruled by a higher court. I believe that the lower court decision has been stayed pending review by the California Supreme Court. However, that does not mean that the lower court decision has no validity, just that marriages cannot be performed in the state on the basis of such decision because of the civil consequences if such a decision was overruled by the state Supreme Court.
I will admit that my reading of Section 8 was wrong, not having read Section 10. But I think it is a long way from saying that the legislature's act was unconstitutional since the prior law has been held unconstitutional.
no subject
Date: 2005-09-11 07:05 pm (UTC)no subject
Date: 2005-09-11 11:23 pm (UTC)no subject
Date: 2005-09-12 01:16 am (UTC)Some politicians have a practise of passing laws they know or greatly suspect are unconstitutional, for political reasons, and rely on the court to overturn them, as if the constitutionality of a law is entirely the business of the judicial branch, and no concern of theirs; this practise is immoral and illegal, and those who engage in it ought to be pilloried for it. Each branch of government, and each member of the legislature and the executive, has an independent duty to uphold the constitution, including the duty to interpret it for themselves, in order to guide their actions.
no subject
Date: 2005-09-12 03:16 am (UTC)Anyway, you contradict yourself by saying that the legislature passes laws that are unconstitutional and then that legislators must interpret the constitution themselves. If they are interpreting the constitution then they can't. Plus people can in some instances reasonably disagree as to whether the constitution applies in a given situation. Otherwise every Supreme Court opinion would be unanimous.
Anyway, I've enjoyed this back and forth so I've friended you. Don't feel you have to reciprocate.
no subject
Date: 2005-09-12 03:36 am (UTC)However. There is nothing in the USA constitution forbidding states from making laws against abortion. That a passing majority on the Supreme Court pretends otherwise is merely a practical hindrance; such state laws, despite being 100% constitutional, cannot be enforced, because the lower federal courts, who have the power to stop such enforcement, are under the supervision of the Supreme Court, and bound to follow its opinions, no matter how wrong they are. State legislatures are not so bound, so they are entitled to make such laws, both as statements of principle and in anticipation of the day that the Supreme Court will come to its senses. (The same applies, of course, to federal legislators, but anti-abortion laws don't tend to be federal).
Anti-flag-burning laws: it is, I suppose, possible that many legislators actually believe such laws don't break the 1st amendment, in which case they're entitled to make the laws, even if the courts will block enforcement. I think it more likely, though, that they know perfectly well that the laws are unconstitutional, and they just don't care. I'm not aware of a respectable legal theory that can justify such laws.
Establishment clause law is again a murky case. The Lemon test is highly controversial, is disbelieved by many, and is likely to be overturned, especially if Michael McConnell gets onto the Supreme Court. Legislators, state or federal, who disagree with it (or state legislators who don't see where in the hidden crevices of the 14th amendment the Establishment clause can possibly lie hidden), are within their rights to make laws that contradict it.
In the case of the California law we are discussing, the legislature would be justified in passing this law if the majority who voted for it honestly believed that the statute passed by initiative is unconstitutional, and therefore not binding on them. And if the governor honestly believed that, then he would not be obliged to veto it. In my opinion, however, that is such a wacky belief that nobody with even a passing knowledge of the constitution could possibly believe it. I don't think the lower court which overturned the initiative believed it, and I don't think the legislators who voted for this law believed it. I think none of them care about the law, they only care about the outcome and the politics. And so I condemn them.
no subject
Date: 2005-09-12 04:25 am (UTC)You have completely lost your intellectual integrity now. You can't be intellectually honest and one minute say that a legislature shouldn't be passing an unconstitutional law (that's pro-same-sex marriage) and then the next minute say that it's okay for a legislature to pass an unconstitutional law that's anti-abortion because the Supreme Court may overturn it. Wasn't that the point in California? That the California Supreme Court would overturn what had been an unconstitutional law? In fact the California case is stronger because there is an actual lower court deicsion that is currently the law. whereas with abortion those laws are unconstitutional. By your line of reasoning the courts aren't the arbiter of what is constitutional, but you are.
It's improtant to point out that Supreme Court precedents are what they are. They are not what they might be with a new Justice on it. Or even what they might be with a new justice that has been confirmed. Certainly not what they might be with a justice that has not been nominated, much kess confirmed. The Supreme Court came to this exact conclusion in Agostini v. Felton regarding the establishment clause.
I happen to be somewhet of an expert on the Establishment Clause, having published several articles relating to the Establishment Clause and education. The Lemon Clause is hardly any of the things you mentioned. Although it is muh maligned and Justice Scalia once compared it to a ghoul in a late night horror film. It is, however, the law. The only adjustment to the Lemon test has been to fold the "excessive entanglement" prong into the "effect" prong. That does NOT mean that an excessive entanglement (between church and state) would be constitutional. It means that such an analysis is done under the effect prong.
There is absolutely no intellectual integrity in the position that a legislator who "disagrees" with Supreme Court precedent relating to the Establishment Clause are within their rights to pass a law that contradicts. Furthermore you say that you don't think the legislators believd it was constitutional. But it's right in the statute that it was their bleif that the prior referendum was unconstitutional and that having been found unconstitutional by the lower court and three other state supreme courts they anticipated the California Supreme Court to find the referendum unconstitutional. Such a position has much more intellectual honesty than saying that if some possible Supreme Court Justice is confirmed that the interpretation of the Establishment clause will change.
And how can you say that you think that the court did not believe that the initiative was unconstitutional. There is a provision in the California constitution that applies to rights that it applied. Just be honest and say you don't agree with the position. But the fact that you don't agree with a position does not make it wrong.
no subject
Date: 2005-09-12 04:49 am (UTC)The constitution means what it means, and that doesn't change according to the whims of the Supreme Court. The court's job is to do its best to understand the constitution; sometimes it succeeds in this job, and sometimes it fails, but whether it succeeds or fails doesn't change what the actual constitution means. A law that contradicts the constitution is unconstitutional even if the Supreme Court mistakenly allows it to be enforced, and a law that does not fall afoul of the consitution is constitutional, even if the Court mistakenly refuses to enforce it.
Many constitutional provisions are sufficiently vague that honest people can hold different opinions about what they actually mean, when applied to a given case. Other questions are perfectly clear, and no honest person could come to a different conclusion. But there are judges sitting on the bench, both on state and federal courts, who don't care what a law actually means; they imagine that they have the power to make it mean whatever they want, and to ignore what a law says in favour of whatever they think it ought to say. Such judges, when they hand down decisions that they know are wrong, act ultra vires, and if there were a foolproof, objective way to single out such judges they ought to be removed from office and their decisions ignored. Unfortunately, I don't think such a way exists, and shortcuts to get around that would probably cause more harm than they would cure. But that's a prudential consideration, and doesn't change the underlying truth.
This has gone on way too long already.
no subject
Date: 2005-09-12 11:50 am (UTC)So Marbury v. Madison and 200 years of jurisprudence are meaningless and you get to say what the constitution means. No. That's why, in part, we have a Supreme Court to-to tell us what the Constitution means.
The easy example is flogging and butchering ears. When the 8th Amendment of the Constitution was passed those were common punishments. So we need the supreme court to say what "cruel and unusual punishment means." Similarly we need the court to tell us what "estalishment of religion" and "equal protection" mean. Original intent or strict construction sound all well and good in theory. But in practice it's impossible. The constitution was not frozen in 1789, nor the Bill of Rights frozen in 1791.
Lastly to say that an argument that is flat out contradictory is not intellectually an insult. I was just calling you on your rhetorical device. There is a difference between insulting you and insulting your argument.