Not really, voting is over but the prop is far from set.  It's going to go directly to the Supreme Court cause of a little thing known as the 14th Amendment.

I voted no.


Eat crow, shithead.  Furthermore, it wouldn't go to California's Supreme Court.  It would go to the U.S. Supreme Court since this prop was a modification to the California Constitution.  The California Supreme Court ruled in favor of sanctioning gay marriage primarily because there was nothing in the California Constitution that specifically regulated it or granted power or some such.




The prop as is is a passed prop.  Whether it stays in place is the next issue, but as of right now it's passed.

probably it will at least get appealed to the supreme court, but one of the better challenges against it is that the amendment itself was in and of itself unconstutional (under the state constitution) because the sort of modification it did could only happen via a totally different process separate from the amendment process. Regardless of what the courts decide the polling says that within a decade or so enough old fucks will die off that theofascist bullshit like this will go away on its own.   

Omigosh Omigosh, so much legal stuff being thrown out, I feel like I just gotta weigh in!

First of all, it wouldn't go directly to the US Supreme Court (and I honestly doubt it will make it there).  In order for a case to go directly to the US Supreme Court (or SCOTUS, as we lovingly call it), the case must have what's called "original jurisdiction", which for SCOTUS is incredibly small, mainly things involving ambassadors, states as parties to the suit, etc.  Even if it does have original jurisdiction, the Court can still kick cases down to lower federal courts to decide on the merits, then let it work its way up on appeal.  I'm not personally aware of any cases where the Court has actually heard witnesses, rendered verdicts, etc., which is what would happen if it took a case directly.  All that's not going to stop Prop 8 from getting into a court, possibly eventually SCOTUS, but not immediately.

Second, the California Supreme Court is bound by the California Constitution, which Prop 8 amended.  There are talks of trying to mount a case to argue that putting Prop 8 on the ballot at all wasn't proper, but that won't fly and it mainly hinges on the content of the amendment, so it all comes back to the same thing.  Since the crux of that argument is the same 14th Amendment (to the US Constitution, but also present in most/all state constitutions) equal protection argument that has been used in cases of racial segregation, etc., it's most likely to end up in federal court anyway.

The history leading up to Prop 8 is interesting, and explains my belief that no court is going to overturn it.  It was originally passed as a ballot measure amending the California Family Code sections 300 and 308.5, limiting marriage to between a man and a woman.  This was overturned by the California Supreme Court in May of this year in In re Marriage Cases, and it's what started the ball rolling for Prop 8.  Unlike the California Constitution, which the California Supreme Court can overturn, the constitutional amendment nature of Prop 8 is out of their reach.  To call something "unconstitutional," it has to, obviously, violate a/the constitution.  With Prop 8's passage, the California Constitution's equal protection clause that was the decider in In re Marriage Cases no longer applies (since the constitution can't violate itself).  That leaves the U.S. Constitution, and a suit under the 14th Amendment would either be filed initially in federal court or would be kicked over to it in a heartbeat.  Thus the California Supreme Court isn't going to get the chance to do anything, and couldn't even if it wanted to.

As for the federal side (where SCOTUS comes in), Prop 8 opponents have almost everything going against them legally.

1. Family law and marriage is more or less exclusively a state issue.  There are some exceptions, and they come once again to the ultimate question going on here.
2. The California Supreme Court already ruled on July 16, 2008 that Prop 8 was properly allowed on the ballot, so the only way to challenge it (other than another constitutional amendment repealing it) is on 14th Amendment grounds.
3. States around the country have enacted the same or very similar bans and none have been overturned (though some have been challenged).  SCOTUS is very careful when invalidating any law, but overturning a portion of the California constitution that would have the effect of invalidating parts of dozens of other states' constitutions, as well as the federal Defense of Marriage Act (passed under Clinton), is nearly unheard of.

The core question at the end of it all is an important constitutional law principle called "strict scrutiny."  I'm not going into all the legal aspects of it, but when courts apply strict scrutiny in a case, the law in question almost universally gets overturned.  When does strict scrutiny come into play?  When the law is used against a "suspect class" of people, i.e. historically discriminated against (though there are other factors).  Thus far in US Constitutional law, it's only been applied to race, national origin, religion and alienage, with gender receiving a watered down version.  What the California Supreme Court did, in essence, was to add sexual orientation to that list.  Were the US Supreme Court to come to the same conclusion, it could overturn Prop 8 (and every other gay marriage ban in the country at the same time).  It would be unprecedented, however, and just as Californians did with Prop 8, SCOTUS's holding could ultimately be overturned by an amendment to the US Constitution.

So that's the legal landscape of what's going on with Prop 8, but I think the Supreme Court would be courting disaster to unilaterally overturn the will of the people and invalidate portions of 30 other state constitutions.  That said, my thoughts on the whole thing are mixed.

I personally don't believe the government should be in the marriage business, and that they should issue a "union license" of sorts to any two people that show up at their door, then let various private religious and other institutions call it what they like.  In that sense, I'd rather see gay marriage allowed on an equality level than see it banned.

However, I don't believe the way to bring about huge cultural shifts that clearly goes against the will of a majority of people (even if I happen to disagree) is by judicial fiat.  I agree with the California Supreme Court's decision, but don't think they should have done what they did.  Californians were obviously upset enough about it and felt strongly enough about the issue to turn around and immediately amend the state constitution reinstating the ban, and I think (just like with the election of Obama) the majority's will here should be respected.  I also think it's a different issue than race and things like Brown v. Board of Education, but that's a discussion for another post.

Just to clarify, I didn't mean it's going to LEAP like Evil Knievel on his rocket bike from here right to Supreme Court, but it's going to work it's way through the courts straight to the Supreme Court. 

Also I know it's a complete pie in the sky dream, but I wish that there was legislation behind campaign adds were you are held legally liable for clear misinformation or flat out lies.  I mean seriously the shit going on with the pro prop 8 commercials were flat out lies, nearly their entire "it will be taught in schools we guarantee it 10,000%" argument was based around a single incident where they said a teacher took her students to a gay wedding saying it was a teachable moment and the kids parents were denied the right to opt their children out.  What actually happened was that it was the TEACHER that was getting married and the kids surprised her by showing up in support of her marriage.  That isn't twisting the facts to get your point across, that's twisting them till they snap and splinter into pieces.  It's like trying to pass a law that says, "hey if you hit a street lamp you have to pay for it not the government", and then the proponents of it start running commercials saying, "if you say yes on this prop major corporations will start burying toxic waste in our playgrounds and your children will die of cancer, you don't hate children do you?", and then show a bunch of pictures of dying children.  But I know nothing like that would ever happen, it's just part of politics and it's the way things have been since pretty much the first presidential election.

That's largely a byproduct of black evangelical churches and Hispanic Catholicism. It can be fought of course (and I think fairly easily), but my point is that in this case demographics are destiny. Those of us who believe in liberty and equality will win regardless of how hard we fight, because the kids are alright. Change is coming.


Re: Legal challenges and whatnot. I think the odds are better than Endyss does, but he actually has legal education. I think regardless of court action, this will be fought politically for the next two years and things will turn out different then, or if not then four years from now. And if not then, six years from now. Or eight. Our success is guaranteed. The only question is the timing.

  Not to mention they can't invalidate current marraiges because of ex-post-facto.

Leading a nation is all about "fine words". One person cannot change the world by their actions alone, but their words can inspire the masses to change the world. How many famous speeches in history have sparked movements? How many charismatic leaders used their words to rally their people for war? A leader is a person who taps into their followers' senses and makes them believe in something.

Obama could turn out to be one of the worse politicians in history. But even if that were the case, I suspect he'll be one of the greatest leaders this country has ever had.