George nails it once again.

It would be a miracle if everyone could make objective and kind comments on this subject. It is impossible!

Ok, I will be kind (I always am). Why do we put up with activist judges who legislate from the bench in violation of the constitution? Can someone (kindly) explain how this happens and why we put up with it?

The problem in California is judges want to legislate and legislators want to judge.

Same thing is starting to happen in Utah. Well maybe not starting, it is here!

I am afraid that ship sailed a long time ago. Brace yourself.
Before people get to full of themselves, yes it does come from both sides of this debate. The real question is does it serve any purpose other then to make you feel superior.

I don't think Brown's argument is that rights under the CA Constitution may NEVER be abolished by constitutional amendment, but rather that when they are abolished they must go through a more rigorous process that was not followed here. "Revision" rather than "amendment," or something like that.

If my understanding is correct, and it may not be, then Will's description of the affair is really not very accurate.

Regardless of how you stand on the issue,

It should scare every american that judges have the power to overturn the voice of the people.

The headline reads, "Brown's anti-Prop. 8 argument gives power to judges, not people."

That depends on what people one is discussing. It certainly gives homosexual couples the power to have a legally recognized family. It gives them not only the name marriage but also the dignity of marriage. Unbeknownst to our opponents, that is giving power to the people.

I do agree, though, in general, with Mr. Will's constitutional sentiments. I believe we're just going to have to keep this discussion going. And we should keep it fair and square.

It is not the courts' job to uphold the precise will of the majority of the people. That's what elections are for. The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority. It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gays from the institution of marriage is a clear violation of any notion of "equality," and I have yet to see anyone dispute that on a rational level. Therefore, it is not "activism" on the part of judges to declare that Gay and Straight couples should be treated equally under the law, rather it is an example of judges performing their rightful duty.

One question I have had with the whole Calif Prop 8 thing is how a constitutional amendment can be pushed through on a simple 50% majority vote? When the US Constitution is amended it requires at least a 2/3 majority so that changes are only made when there is a groundswell of public opinion that it needs to be done. Constitutions should be too precious to leave up to the capriciousness of a simple majority vote on any issue.

Whether or not you believe in Proposition 8, what is going on now has far greater consequences than that. We are looking at the possibility of voter disenfranchisement AND judges that disregard the constitution when it serves their political view.

According to the constitution, if a right was not specifically written into the US constitution, it was given to the states to decide what to do. The people of California have spoken to agree with Propostion 8. It is now part of their state constitution, and defines legally what marriage is for the state of California.

Judges in California (and other states) are bound by oath to uphold the Constitution of the State and the US constitution. Unless there is a valid arguement that clearly shows that the law is in direct violation of the US constitution, the Proposition must stand until it is removed by another ammendment.

If a judge rules against it without quoting the US constitution, I would hope that all people in the state of California begin to protest their government for not following their state Constitution. This is not an issue of gay vs strait, but is now an issue of right vs wrong.

Is providing "not only the name marriage but also the dignity of marriage" so important as to throw out the entire definition of the word?

In the civil sense, marriage, for its entire history in the human sphere, has been defined as the contractual union of a man and a woman. The "right to marry" is the right for any man and any woman, of legal standing, to enter into this contract as currently defined. If a state wants to legalize, solemnize, or otherwise incentivize other kinds of unions (same-sex, polygamous, etc.), it may do so, but this does not require the redefinition/destruction of the traditional contract.

Please enumerate one legal protection or incentive, tax break, etc., that cannot be granted to a same-sex couple through an appropriately written civil unions statute. Giving same-sex couples the "dignity of marriage" is not a legal protection; it is an attempt to use the law as a bully club to force those of another opinion to accept homosexual behavior/unions as societally and morally equivalent to marriage. I don't think it will work any better than Roe v. Wade has forced those in the anti-abortion camp to change their stance (i.e., it hasn't).

GTO at the risk of sounding unkind, surely you are not serious. This same claim has been made innumerous times on these threads and the reason for the judicial branched involvement has been explained innumerous times on these threads the role of the judicial system as one of the checks and balances in government that helps to insure that the will of a simple majority cannot violate the civil rights of individuals. Please do not keep trying to drag us back into the same old conversations over and over again. I am sorry to those I have offended but it is difficult to continue to take such silly questions asked over and over again serious. Asking the same questions and making the same discredited statements over and over again is not making your case any stronger it just shows feebleness of mind. You will be happy to know however this will be my last unkind words on this pointless thread.

Thank you Chuck, for pointing out what so many refuse to admit. "The job of the courts is to uphold the Constitution, REGARDLESS of whether the necessary decisions fall in line with the will of the MAJORITY. (my emphasis added).

There will come a day when the current MAJORITY voice on this matter will be the MINORITY, and everyone will finally be obliged to allow equality to mean equality.

Great comments!

It is imposable to have a serious discussion with people that are not willing to evolve with the conversation and keep on asking the same questions and making the same statements over and over again even after they have been addressed several times. At some point the conversation has to evolve to remain viable as a serious conversation, sadly this conversation has failed to do so.

I'm not commenting on this specific ammendment. I don't have a strong opinion on that. But I do have a strong opinion that a single judge should not be allowed to override the expressed will of the people and the Constitution (this ammendment is now a part of the California Constitution).

This is why we need to be carefull who we place in these important positions as judges. Some eventually get the impression their judgement trumps all and their will is more important than that of the people.

If having a referendum on his issue was unconstitutional he should have expressed that when the vote was proposed, not now that the vote is over and the ammendment was accepted by the people it will be used to govern. Why even have the referendum if the people aren't allowed to decide issues like this as a community?

I was reminded this week as I enjoyed seventy degree weather in January, California isn't Utah. California was settled by Americans who didn't stop until they ran out of trial.

In California, majorities can't pas laws to enforce their bigotry. Our courts enforce our constitution.

Personally, I would rather see gay marriage passed in te next election. Every election gay marriage has greater support.

Too much power | 7:15 a.m. Jan. 16, 2009
"Regardless of how you stand on the issue,

It should scare every american that judges have the power to overturn the voice of the people."

Haven't been reading the constitution much lately, have you? That is one of the roles of judges, to make sure that the majority does not ride roughshod over the minority. They are to JUDGE laws as constitutional or not. Geesh.

"The people of California have spoken to agree with Propostion 8. It is now part of their state constitution, and defines legally what marriage is for the state of California."

Before Prop 8 was passed, California passed an amendment to their constitution that forbid the government from discriminating against anyone because of the sexual orientation.

These two amendments are not compatable.

The judges must decide which is constitutional.

Was Prop 8 an amendment or was it a revision to California's Constitution? Because it outright singled out a minority population in the state and rescinded rights, I believe it was a revision.

That is the whole argument isn't it? In dissecting your words verbatim, you yourself are not listening to a part of your own gripe. "Equality under the law". "Equality", I think everyone is for, but "under the law" is the sticking point. Please stop with the poor me syndrome. It doesn't hold much water. We have bigger issues to discuss, like the purpose and role of judges.

@@GTO & poor conversation: Dismissing questions and and deeming answers not worthy is not a viable debate. You don't win and argument and change minds by fiat. If gay marriage is ever to be accepted it will have to be by a majority will of the people, otherwise, you are at a standstill. If the courts overrule the will of the people again in California, the obvious will happen (and already has happened) the people will move to areas more in line with their thinking and values. Utah and other rocky mountain states are benefitting by the exodus of the higher calibur citizens of California.

if you have been reading these boards for more then a week and you still do not understand the role of judges you have bigger problems then can be solved here.

Just because the majority of people vote for something, doesn't make it right. Sorry, but no matter what way you slice it, sometimes the majority is wrong. Thank God we have people like Brwon who understand this. Not allowing a certain group of people to marry is blatant discrimination and is wrong. What if the majority of people voted that Mormon temples were to secretive and cultish, resulting in rights being taken away from Mormons to marry in their temples. Would it be ok because the majority voted that way? I think not. You live your life, and let me live mine, and God will sort us out in the end. It isn't your job.

To "To Redshirt | 9:19 a.m." plese cite your source for the ammendment that forbids discrimination based on sexual orientation. I did a search through the California Constitution, and found nothing. Please list the article number where any discrimination clause if found.

I did find laws, but not a State Constitution change. (The constitution is the foundation for the laws)

the majority of the country is that they probably think that the Constitution provided for every single possible equality issue.(Brilliant document that it is) Sorry to break it to you, but maybe it didn't! Possibly a think or two can be learned in two and a half centuries! Hmm quite the concept huh?

The fact that Californians can change their constitution with a simple majority is rather stupid. That said, I think the gay and lesbian community should wait for the next election rather than try to have this decided by the CSC. That way when California gets gay marriage the reich wing wont be able to cry about activist judges.
Gay marriage will happen. Old people always die, and their bigoted ideas die with them, it just takes time.

To "MIke M. | 10:07 a.m." if you believe that "Not allowing a certain group of people to marry is blatant discrimination and is wrong." Will you also give polygamy equal status, and make it legal too?

How about allowing a bisexual the opportunity to marry both a man and a woman?

My point is that if you are for gay marriage, and say that it discriminates against a group, then you must also embrace all non-traditional marriage arrangements that any other group has or wants. If you don't, then you too discriminate.

@Anonymous 10:20: I know plenty of young bigots, seems there is always a new crop, they just have different bigotries.

To RedShirt at 10:22 a.m.

I fully support any type of non traditional marriage as long as it is between conscenting adults that are of sound mind. That doesn't mean someone can marry their dog, or their couch! It means that just because I don't personally understand why someone would be married to multiple people doesn't make it wrong. That is their business, not mine. Who am I to say that polygamy is wrong? As long as all people involved in the marriage are consenting adults, then the government should stay out of it, and let people live their own lives.

The ammendment was not discrimination, it was definition.

Since there is becoming more confusion about what "Marriage" means, some citizens felt the need to define it in a place where it couldn't be overruled (in the State Constitution).

To me, defining "marriage" is just like defining "Father" or "Mother" or "Child" or "Wife" or "Husband". These terms have some legal implications as well and you wouldn't think they would ever need to be defined but before long you may be suprised.

To me, these terms don't need to be defined, but to some they may. Someone may decide to call his child his 'father'. It could happend. If so, does the child then become the "Head of household" for tax purposes? Can the man then put himself on welfare because his father (the child) isn't employed?

When you start messing with the traditionally accepted definitions of simple things life can become very complicated and confusing.

California could take a page from Utah and just make it next to impossible to get citizen referendums on the ballot

The gay marriage debate in California is not a fight about rights. It is about acceptance - forced acceptance. Under California law, gays and lesbians have right and benefit that a married person does. The only difference between a "marriage" and a "civil union" is how they are spelled. However, since society has recognized marriage for thousands of years, there is a social status associated with it, a status civil unions do not share. This social status is what gay marriage advocates are after. By gaining this social status, they gain the same universal acceptance as marriage.

So, this whole debate is not about rights or bigotry. It is about forcing those who find the gay lifestyle objectionable to accept it. This is going beyond tolerance, where you allow others to live and do as they want, but still believe those actions are wrong. This is trying to redefine what someone else's definition of right and wrong. Should the judges overturn Prop 8, they are not granting the gays the right to marry. They are granting a social status, something not protected as a right by any constitution in the United States.

I suppose that means that mentally handicapped people you would not allow to marry.

And what do you have against my dog? Isn't she entitled to enjoy life to its fullest with whomever she wants?

How about the university course on the joys of man-boy relationships?

I seriously doubt that you have any concept of marriage beyond sexual license.

the fact is - Prop 8 is unconstitutional. It impedes a basic right to marry.

what exactly do you not understand about that?

and Mikey 11:36am - what do preverted man-boy have to do with anything?

you fail to realize that same-sex marriage has less to do with sex than heterosexual marriage. it's twisted little minds like yours that created this fiasco in the first place.

George Will is wrong. What if the USA passed a constitutional amendment restoring slavery? What would be the role of the Supreme Court? To simply admit it as part of the Constitution? or would they have ample reason to strike it down on appeal to extra-constitutional authority such as the English common law tradition, the law of nations, and the Declaration of Independence, which is the USA charter document (i.e., "all men are created equal")?

to @Mike M at 11:36

Now you are just arguing to argue. I don't think you should be allowed to marry your dog, because your dog can't conscent to you and say, yes I want to marry you. That is ridiculous. And when did I say that people with mental disabilities shouldn't be allowed to be married? As long as they can conscent and they are over 18, why not? And please, I have been in a relationship with the same person for 3 years now. We share a bank account, a home and families. My parents love him, and his parents love me. We have ups and downs just like everyone else, and I should be allowed to marry him, so don't bother me with your words of "I seriously doubt that you have any concept of marriage beyond sexual license" because I do.

You should actually read the CSC decision - the justices stated that there ARE fundamental differences between marriage and civil unions and that in California they did NOT grant all of the same rights, privileges and responsibilities of marriage. That was the core of the "separate, but not equal" argument.

I believe that if civil unions did, in fact, grant ALL of the same rights, privileges and responsibilities to EVERYONE there wouldn't be an issue.

To "realitycheck | 11:47 a.m." please give me the quote from the Constitution that proves that Proposition 8 is unconstitutional. I have yet to find anything in the constitution about marriage.

so... finally the infamous debate on polygamy vs same-sex-marriage rears its ugly head here.

well - to all you wannabe polygamists who think same-sex marriage falls into the same category, you need to rethink. same-sex marriage is between two people. we already have marriage contracts and laws to cover two-person marriages.

you want 3 or more person marriages? then you need to come up with a contract that all parties sign to ensure everyone's rights are covered.

all parties (all wives and the husband) would need to UNDERSTAND THEIR RIGHTS and sign the contract, at the time of EACH marriage.

If one wife wanted a divorce, ALL assets would need to be liquidated to allow that person to take their fair share. The husband would have to pay child support, but his rights would be minimal, since the wife has 50% control of the children but the husband only has 20% (assuming 5 wives).

And how about the wife that makes a lot of money? she would have to share that with all the other wives. and the children could sue everyone to ensure they got their fair share of inheritance....

sounds like a heck of a reality show.

re RedShirt 12:06pm

prop 8 prevents two people from forming a contract that two other people are allowed to form.

that's discrimination based on sexual orientation - and that's unconstitutional. (I think you can find that in the CA constitution...)

The Proposition was approved in a constitutionally valid way, and should therefore stand.

Mike M. How do you define consenting adults? Isn't the age of consent in England 16? Who set that age? The people of the UK! Most likely a majority. If we tried to insinuate our activist judges into the UK who then said 16 was too young, it should be 18 or 21 the English would have every right to complain.

There have been those complaining that a simple majority is not a high enough standard to amend the CA constitution. A simple majority may be too low, but it is the current standard. If Californians want a higher standard, they can change the standard (not some activist judge or former governor Moonbeam!)

There are those in this thread (@GTO, poor conversation, anonymous) who complain about the same old arguments coming up that they claim to have debunked previously. If we don't know who you are because you won't use a constant pseudonym, we have little reason to believe that you actually debunked an argument; we're more inclined to believe that you have just dismissed it because you don't like it. You don't have to use your real name, just a consistent moniker so we know your history.

I wish more California would experience Utah so they can see racism and bigotry are still alive in America. too Utahans see the race and are blind to whose labor feeds them affordable food. Too many Utahans see only a person's sex orientation and not that they are citizens with equal rights. People see gay marriage as effecting traditional marriage but they are blind to the history of marriage in their own family and church that wasn't defined by one man and one women.

There is no need for an amendment, as suggested by the "9:19" poster. Read Art. 1 sec. 1 sentence 1.

Any law professor should be able to explain what that entails.

For those of us who have taken California Con Law classes in law school at a CA institution, your attempt to wax philosophical on the US Constitution and the CA Constitution is amusing.

Nice try, but i suggest you stick to leaving comments based on 10 minute google searches.

To "realitycheck | 12:16 p.m." where is it in the CA Constitution that discrimination based on sexual orientation is prohibited. I looked in there, and was unable to find it. There may be laws against discrimination based on sexual orientation, but so far, I have not seen a a quote from the CA Constitution that has anything to do with this.

Please provide a quote from the CA constitution and it's reference.

You do realize that gay 'MARRIAGE' is already here? You have done nothing but delay it in California. It is in Mass, Conn, Norway, Belgium, Spain, the Netherlands, Canada and South Africa.

Where was the church when these countries were passing their GAY MARRIAGE laws? I did not hear a word from them when our neighbor Canada passed their law. Why California? Is it just too close to Utah?

Sounds like you would like to see a different America than the one that has become the greatest nation on earth. One that has no common language, no common culture and why not erase the borders while we are at it.
The GLTB folks would like me to approve of them. We'll, I accept them, but to approve of their lifestyle is a whole other matter.
Live and let live.

To "@ fading red shirt | 12:24 p.m." Article 1, section1 of the Californa Constitution says "All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

Where is there anything that says you cannot discriminate based on sexual orientation? Unless, once you are married, your spouse is property.

Please explain to somebody that is not a law student how any of that translates into anything that relates to gay marriage.

The way I read it, marriage is not included there, and was not in the CA constitution until Proposition 8 was voted on.