Comments about ‘Proposition 8, the living Constitution’

This piece completely mischaracterizes the actual opinion of the court, which is really quite limited in scope. The ruling says that once a state legalizes gay marriage, it cannot rescind that right without showing a compelling legal reason to do so. It ruled that the state had not shown any such compelling reason, therefore there was no legal justification to rescind the right.

Also, anyone who rails against "unelected judges" doesn't understand the concept of an independent judiciary, which is a foundation of our legal system. There are many judicial decisions with which I disagree, I still live by them.

With trivial adjustments to its wording Mr. Clark's article could have just as easily have been written as an objection to court-ordered desegregation of schools and other public places in the 1960's.

The simple truth is that Mr. Clark is not making a valid legal argument. Citing personal statements by Bork and Thomas to justify his position reveals the intellectual hollowness of his arguments. Mr. Clark ignores the abundant and infinitely more credible legal and historical scholarship that argues powerfully for the equal public application of constitutional protections to all Americans regardless of privately held religious beliefs.

Mr. Clark and the editors of this newspaper are on the wrong side of both history and basic human decency on this issue.

Please, rethink your position.

great cartoon
too bad it will go over many peoples heads

A panel of judges finds prop 8 to be discriminatory. So will the supreme court. Get ready for gay marriage.

A court is required to follow the Constitution. The Constitution of California, as written by the people of California, defines marriage as being between a man and a woman. No court has authority to legislate. No court has authority to disregard the Constitution. The Constitution IS the law, regardless of what a judge or a panel of judges may decide.

The 14th Amendment states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

All people in California who are of age can marry. No privileges were denied to anyone. A man can marry a woman and a woman can marry a man. ALL California citizens have that right.

Two judges determined that special rights must be given to 3% of the people. They legislated from the bench. They extended "rights" to that 3%, rights which the judges do not have authority to extend. The PEOPLE hold those rights. The PEOPLE said NO.

The Constitution is pretty clear.

Equal protection means EQUAL PROTECTION.

Article IV - The States

Section 1 - Each State to Honor all others

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2 - State citizens, Extradition

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Amendment 14 - Citizenship Rights. Ratified 7/9/1868. Note History

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

===

What is so hard to understand in the following: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

This INCLUDES gay and lesbian Americans.

"The equal-protection clause is a general restraint to prevent the abridgement of rights. Under all three levels of scrutiny to which the equal protection clause has been applied â strict, intermediate and rational basis â traditional marriage clearly constitutes a compelling government interest." So the equal protection clause which is a restraint on the abridgement of rights can't be used to stop the abridgment of the legal rights of gay people to get married?..becuase..traditional marriage constitutes a compelling government interest..what interest? I would also think that gay marriage would have to pose some danger to the exsistence of trational marriage in order for it to go unprotected by the equal protection clause.

First of all the writer doesn't eve attempt to say what his compelling reason is, and secondly there is absolutely no evidence that gay marriage poses any harm to traditional marriage. Mr. Clark simply makes a apriori statement that traditional marriage is in the interest of the government..sorry it doesn't work.

Lastly the hypocricy of the right now completley enamored with democracy. It was less than a year ago that this paper was awash with letters and opinions about how we aren't a democracy and the dangers of majority opinion (we're a republic)..now..let's vote on everthing that isn't going their way.

Gird up Mr. Clark the tides of religious discrimiation are turning and they are firmly based in the rights guaranteed by the constitution.

Is it really a religious freedom to prevent other people from having their civil rights? Is this really what republicans want America to become? Where a group can limit the civil rights of others while calling it a religion?
This is just horrible.

In this representative Republic that we live in, the legislature (the people) pass laws, the Executive Branch enforces them, the Judicial interprets the law. That is how it is supposed to work. When the Judicial steps in and takes the power away from the people, then it causes problems such as these. If people want homosexual marriage, then let them convince the legislature to pass it. Not the courts. The responsibility of the court is not to make new law.

@J Thompson;

I have yet to receive an answer to this question.

Did YOU marry YOUR spouse simply because he/she was of the opposite sex or did you marry him/her because that was the person you loved? Would ANY member of the opposite sex have been sufficient?

If you married for love, then why isn't the right to marry for love allowed to GLBT couples? Why must we marry someone of the opposite sex instead of the person we love?

The 14th Amendment states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

This ENSURES that we have the RIGHT to marry the person of our choice. No state shall make or enforce ANY law --- Prop-8 and Utah's Amendment-3 are clearly violations of the 14th Amendment.

The 14th Amendment also makes it clear that the will of the majority, when it abridges the rights of ANY citizens, is also Unconstitutional.

---
DN Monitors, why is it that I keep getting logged off and have to log in again every half hour or so?

It is nothing less than the bedrock of civil society. Yet the ruling turns a blind eye to this in order to promote an alternatively preferred policy."
Hyperbole, the pro prop 8 people have failed time and again to prove the claim that a harm will come to society if gay marriage is allowed. there is simply no rational basis for their argument and that is why the keep losing.

@j thomas
Try reading the ruling, the issue is that gay marriage was a right under California constitution and then that right was taken away without a compelling state interest in doing which violates the federal constitutions 14th amendment. States cannot violate the federal constitutional protections of its citizens. This is not a new concept, it has been a source of conflict between some states and the country since before the civil war, but you already now this since it has been pointed out to you time and again already.

@ ranchhand... if a person is forced to pay a higher tax rate on their income than a fellow citizen are they receiving "equal protection"? Explain that one to me.

Mr. Clark, I think you misunderstand "positive" liberty. In fact, the justices have furthered this "negative" liberty that you speak of by declaring a way in which the state may not interfere with personal matters.

Positive liberty is just the sort of liberty that works very well on a small scale where individuals and communities decide the context in which they are free to become people of a certain and very definite kind. So, in fact, "traditional" marriage is all about "positive" liberty. The more definitions are set aside, the fewer constraints are in place to regulate the actions of citizens. A society in which "anything goes" is a society of perfect negative liberty.

It is probably true that the federal government, by right, has nothing to say about marriage at all. I don't think it is the federal government's job to establish a form of marriage. I think states might have that right--maybe. Certainly communities and families are empowered to decide what marriage means for them. In other words, the best thing for us to do is to look after our own marriages and make them conform to exactly our ideals. This is something I think you will find lacking in us; we have neglected families for so long that it is difficult to justify our reaction to others who want to create families that aren't "traditional".

The article reads "[t]he equal-protection clause is a general restraint to prevent the abridgement of rights. Under all three levels of scrutiny to which the equal protection clause has been applied â strict, intermediate and rational basis â traditional marriage clearly constitutes a compelling government interest."

I applaud the writer for at least trying to bring the legal analysis into the discussion but I am unsure that he actually read the case or understands that when levels of scrutiny are applied to the discriminatory act (precluding gay marriage) then the purveyor of the discriminatory act must justify why it should be allowed to discriminate in this particular case. Had the author actually read the case and gone through the Court's responses to the pro-Prop 8 attorneys' justifications, he would have learned that simply stating "traditional marriage clearly constitutes a compelling government interest" is a vapid and losing legal argument.

I guess that is a good thing for us pro-marriage equality types; it demonstrates that the opposition literally has no legal defense for their stance.

Stop the nonsense! There is no attack on traditional marriage.

RanchHand,

The PEOPLE of California defined the word "marriage" to mean the union of ONE man with ONE woman. That definition was placed in the California Constitution. The California Consitution is the supreme law of California.

The Court redefined the word "marriage" to mean the union of anyone to anyone in defiance to the California Constitution.. The Court legislated in defiance to the U.S. Constitution which clearly states: "Article. I., Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

As I have already commented, the 14th Amendment is NOT applicable because EVERYONE in California has the right to marry - one man to one woman. That RIGHT has not been denied. ALL PEOPLE are treated equally under the law.

YOU demand special privileges. You demand that special rights be given to you. That is UNEQUAL protection under the law. Those rights would apply to 3% of the population and not to the other 97%. That is NOT EQUALITY under the law.

You are equal. You can marry a woman just like any other man. Your RIGHTS have not been abridged.

Why do we have a government definition of marriage? We don't have a government definition of dating. We don't have a government definition of who our best friend is. If rights need to be protected, let the government give everyone civil unions. The LDS Church has shown support for civil unions for same-sex couples. So what solution here in Utah could please almost everyone? What if the government would only enforce civil union status, and give everyone the right to form a civil union? Whether you are "married" or not would be your own determination of your church or whatever belief system you have, but neither group would be forced to live under the definition imposed by the other. I certainly don't need the same organization who runs the DMV telling me that I'm married to make it important. The only argument I really is see about equal protection under the law, and that can be achieved if everyone receives civil unions, which the LDS Church (of which I am a member) supports for same-sex couples. Am I wrong? Doesn't this solution work?

Well, well, well. Some people want positive rights. Some people want 3% of the population to be given special rights.

How about if the rest of us demand some special positive rights?

I would like the right to go to California at any time without worrying about seeing naked men and naked women parading down the streets. That is a speical positive right. It does not matter that judges have said that those people have a 1st Amendment rigto to parade naked. What matters is that I WANT A SPECIAL RIGHT that denies them their "right" to parade naked.

That is what will happen if courts start legislating special rights to special people.

Under the 4th Amendment, I can claim unequal protection on anything. I can claim that my "right" to decency has been denied by their "right" to parade naked.

Foolish people turn and twist the Constitution to give themselves special rights. Foolish people want special priviledges to apply to them because they think differently or act differently than others. Thinking and acting are not given special protection in the Constitution.

'What the judges should have done is refer this constitutionally silent issue back to lawmakers and the general public. Instead, they disavowed traditional marriage.' - Letter.

Traditional...

marriage.

Polygamy, the marriage of one man and many women, was last banned in Utah.

1890.

Loving vs. Virginia. Supreme Court ruling that allowed interracial marriage.

1967.

Massachusetts. First state to allow gay marriage.

2004.

Now, is where thinks get tricky.

The 'defender's of the constitution and 'traditional marriage' in Utah changed it's state constitution. Amendment 3. Changing marriage TOO 'one man and one woman' (not polygamy but rather monogamy) FROM....'two people'. Not gender specific.

Also, 2004.

Actually, I believe SEVEN other states scrambled to factually CHANGE their state constitutions, when MA allowed gay marriage.

And this is the 'traditional' marriage I hear so much about?

Watch 'Sister wives?'

This claim has no merit. Marriage has changed, and will change again.

As for gay marriage bringing 'harm' to traditional marriage'...?

x5 years later in MA....

** 'After 5 Years of Legal Gay Marriage, Massachusetts still has the lowest state divorce rate.' - Bruce Wilson - AlterNet - 08/24/09

This data was collected from the 'National Center for Vital Statistics.

If marriage is a fundamental human right, then how do we accommodate the many single ladies who desperately long for a husband, but aren't married?