Mike
http://theqtube.com/view/569/mike-andrews-sex/

Ah! So THAT’s what three strikes was all about!

Once they get rid of the immigrants and have no one to do their housework they’ll start using lifers from the prison system to do all their menial labour.

And I bet you all thought Abe Lincoln pulled a fast one on them.

http://www.examiner.com/x-1031.....ct-of-2010

You see, this is one of the reasons I have hope for tomorrow. Again, it’s always possible the judges will try to punt this larger question of minority rights a la Bush v. Gore. However with the radical right planning more attacks on LGBT rights as well as a renewed assault on immigrant rights, I suspect they are really looking into this problem and what they can do NOW to solve it.

@Sam: Precisely, Sam! If this “split decision” happens, which Massachusetts marriages will be recognized in California and which ones won’t? Only couples who married before November 4, 2008? Only couples who moved to California before November 4? This just proves my earlier point that this would be so ugly and messy that I doubt the court really wants to go this route.

Again, I guess it’s always possible… I just hope they avoid this dilemma altogether by just reaffirming what they said last year.

For example: what about all the out-of-state same-sex marriages performed prior to November 5, 2008? I was married in Massachusetts in 2004. If I had moved to California in the interim period while same-sex marriages were allowed, my marriage would have been recognized under California law.

So if I move to California after a ruling that Prop 8 is upheld but not retroactively, am I married under California law or not? Does a prohibition against Prop 8 being applied retroactively only apply to marriages of couples whose marriages were actually recognized by California in the interim period? Or does any marriage that was theoretically valid on November 4, 2008 qualify? If that’s the way it goes down, expect a big mess.

This is another reason I’m not buying the media hype. Again, there’s certainly a possibility the judges will chicken out and pull some “Bush v. Gore” crap tomorrow. However considering the real threat to not only LGBT civil rights but the civil rights of other minority groups (like immigrants, as we’re likely to see “Prop 187 Redux” on the 2010 ballot), I have a feeling they’ve been taking so long to rule because they’ve really been thinking this over… Or at least I hope so.

http://www.ocprogressive.com/diary/356/

http://calitics.com/diary/8924.....on-tuesday

Basically, the judges will be creating an unprecedented legal quagmire for the LGBT community if they create a subclass within our community that’s granted marriage rights while the rest of us are given something else. Also expect this subclass of “limited edition marriages” to face a HUGE mess of legal entanglements over recognition, benefits, and which out-of-state marriages are recognized and which ones are not. It would just be too messy if the “let H8 stand AND the 18k marriages stand” ruling is given, so I’m really doubting the court will go there.

Perhaps if the judges try a “third way” route, they’re probably more likely to allow H8 to stand while also demanding the Legislature do away with any more civil marriages and create a new class of civil unions for gay AND straight couples. But since this ruling will throw all of California into the crosshairs of DOMA if given, I don’t think this ruling is all that much more likely.

So really, we’ll probably see either a ruling that upholds H8 and recognizes the 18k marriages as only “common law marriages” or DPs or something similar to either… Or the court will just toss out H8 altogether and let freedom ring for good this time. I’m hopeful we’ll see the latter, but there’s no way to know what they’re planning to do.

I’ve been thinking a lot about the idea that the justices will uphold both prop 8 and 18k existing marriages, and it just doesn’t make sense to me. Let’s say they do rule this way. We then live in a place where “only marriage between a man and a woman is valid or recognized…,” but there are 18k non-man/woman marriages? With no explicit clause or statute that delineates why or how these marriages are exempted? How can they possibly do that?

That’s why I think *if* the justices were ruling correctly on this, it would have to be an all or nothing situation. I’d like to think they could even apply the fact that the people were unaware of the retroactivity issue, and that might contribute to prop 8′s status as a more sweeping revision-type deal. But I doubt that…and we may just see one of the strangest situations for a “minority within a minority” to ever have occurred after this ruling.

You can dispute with me about what California courts will or will not do tomorrow. But there is no doubt that in upholding Prop 8, they are overturning conceptually equal protection analysis as American jurisprudence has understand it.

Each amendment is not only subject to 50 plus 1, but subject to being challenged every 2 years with new ballots. So, it also promotes instability as to what rights couples will and will not have. Why? Because the amendment process each time can be used, and saying that it will be subject to heighten scrutiny is meaningless since the same rational that says that one can define marriage as between a man and woman can then be used regarding other amendments too. There would be nothing judicially to prevent it.

But , given CA financial predicament, which also is the product of misguided over reliance on direct democracy, that’s not a surprise.

@The Gay Numbers: It is meaningful to the extent that exceptions can be amended to it, like Alec said. It’s not like all equal protection immediately flies out the window…it just has to be voted on first!

http://www.marriageequalityri......sion_rally

http://www.dayofdecision.com/

“The problem with [my] argument” is that it is a fair statement of the law as it stands today. And yes…I think that the abortion comparison is appropriate. Although I think that a single victory for marriage equality will end the question in CA.

Believe me, I wish the law was more protective of minority rights. But there’s what the law is and what we wish it to be. If I was on the CA Supreme Court I would undoubtedly approach the revision argument differently than the current justices will on Tuesday.

Even so, I think they will include language that limits it to “a jurisprudence of nomenclature.” That is, they’ll make it all about the term “marriage.” Or at least, suggest that a constitutional amendment rescinding domestic partnership rights would face heightened scrutiny and be invalidated. I think that view is wrong headed, but I think the outcome is almost inevitable.

I think existing marriages will be safe. First, invalidating them would raise federal constitutional issues and, more importantly, the “wherever and whenever performed” language is way too ambiguous for retroactive application of an initiative. The presumption is that an amendment will apply only prospectively.

Anyway, I’d say our chances of invalidating proposition 8 are slim to none here. But I’d say the chances in 2010, 2012, 2014 and 2016 are great, and more importantly can serve as a model for how to undo those other constitutional amendments that the gay community in CA has overlooked. Just a parting thought.

As for CA, we will see how out of whack they are on Tuesday. They are deciding whether to eviscerate one fundamental section of their constitution for political reasons rather than the more legally tolerable revision, which would protect both sections.

That’s what we are discussing- how hard it should be for majority to vote away fundamental rights? Not whether they can or not. Somewhere in the politics- I fear this may be lost.

I say this case is 50/50 because I keep reading the experts say they expect the Court to split the baby in an illogical way: upholding the existing marriages and validating Prop 8. This is illogical because I do not see what would protect the existing marriage beyond the emotions of invalidating them. I do not see how the majority lacks protection if they are required to amend through a revision.

But, others say I am wrong, and the justices may agree with them. Therefore, I accept that it is 50/50.

In fact, Independent Energy Producers Assn. v. McPherson is not exactly on point; it presented similar but distinct issues (the statutory, not constitutional, initiative power was at issue, for example).

This is what the Court had to say about preelection review in revision and similar challenges:

Nonetheless, although the strong presumption against preelection review does not apply to such a claim, we believe it is appropriate for a court presented with this type of preelection challenge to keep in mind that unlike the type of procedural challenge relating to the petition-circulation process at issue in our recent decision in Costa, supra, 37 Cal.4th 986 — a type of claim that, as explained in Costa, generally can be remedied only prior to an election and that usually will become moot after an election (see id. at pp. 1006-1007) — a contention that an initiative measure is invalid because the measure cannot lawfully be enacted through the initiative process is a type of claim that generally will not become moot if the initiative is approved by the voters at the election. (See, e.g., Bramberg v. Jones (1999) 20 Cal.4th 1045 [postelection decision invalidating initiative that instructed, and indirectly attempted to coerce, federal and state legislators to propose a specific federal constitutional amendment]; Raven v. Deukmejian (1990) 52 Cal.3d 336, 349-356 [postelection decision invaliding one section of Proposition 115 as a constitutional “revision” that could not be adopted by initiative].) Because this type of claim is potentially susceptible to resolution either before or after an election, there is good reason for a court tobe even more cautious than when it is presented with the type of procedural claimat issue in Costa before deciding that it is appropriate to resolve such a claim prior to an election rather than wait until after the election. Of course, as this court noted in Senate v. Jones, supra, 21 Cal.4th 1142, 1154, potential costs are incurred in postponing the judicial resolution of a challenge to an initiative measure until after the measure has been submitted to and approved by the voters,and suchcosts appropriately can be considered by a court in determining the propriety of preelection intervention. Nonetheless, because this type of challenge is one that can be raised and resolved after an election, deferring judicial resolution until after the election — when there will be more time for full briefing and deliberation — often will be the wiser course.

So the strong presumption against preelection review of constitutional (state or federal) challenges to initiatives is inappropriate in such cases, but judicial deference “often will be the wiser course.”

That’s all that happened here.

Speficically: “The George Court has already unanimously determined pre-election review is not precluded when the challenge is based upon a claim that the initiative may not properly be submitted to the voters because it amounts to a constitutional revision rather than an amendment. (Independent Energy Producers Assn. v. McPherson (2006) 38 Cal. 4th 1020, 1029 (unanimous decision & opinion written by Chief Justice Ronald George).)”

The courts can and have taken up the issue of whether something is rightfully on the ballot before the election happens. It wouldn’t be unheard of at all had they decided this case before November; though as I said it would be a rather poor decision on their part given the political circumstances.

However, there is a basis at law to narrowly tailor a ruling to make certain that you are not overbroad than what you intend. In Re Marriage remains either correct law or judicial irresponsibility because they would be overly broadly to write what they wrote if they also believed that it was merely a procedural technical concern (CA Code versus Amendment to the Contitution) versus substantive (new fundamental right and new suspect class of EPC). There were narrow ways they could have responded to the case in In Re Marriage that they choose not to do.

How elegantly stated. You brought tears to my eyes. Not of sadness, but of the celebration of being a loving human being who is not afraid to show that love.

I celebrate your love. I celebrate your marriage and I celebrate your commitment to your partner.

May you both have much happiness.