Talk:2008 California Proposition 8/Archive 4

Rearrangement
"Proponents" and "Opponents" sounded like they need their own subsection. Any suggestions on a better title than Campaign Contributors? And where should the ProtectMarriage.com letter be placed? I thought after proponents and after opponents to allow the article to give a good intro to the groups ProtectMarriage.com and EqualityCalifornia in their respective subsections. MrBell (talk) 17:21, 13 November 2008 (UTC)


 * Should Equality California be defined (with a reference to their website http://www.eqca.org/ in the opponents section) before the ProtectMarriage.com letter, or do we just allow the Eq. Cal. link in the ProtectMarriage.com letter subsection to explain the organization? MrBell (talk) 17:33, 13 November 2008 (UTC)

On a larger scale (at least in my opinion) it seems out of sequence to me to have the reaction to the vote prior to the details of what the proposition was about. IMHO, the reactions should be at the end, not the beginning of the article. CsikosLo (talk) 19:46, 13 November 2008 (UTC)


 * With regard to 2008 prop. articles (California Proposition 1A (2008), Arizona Proposition 102 (2008), etc.) the yes/no results with some percentages are mentioned in the first paragraph and explained in detail near the end (state maps, etc.). I moved the Prop. 8 results because it seemed lost down at the bottom, but feel free to move it back if it looks better that way. MrBell (talk) 21:03, 13 November 2008 (UTC)
 * I think it is strange to have the order as it currently is, with "Post-election events" following immediately after "Opinion polls", while "Results" comes before "History of the initiative". I understand that for a while, in the period immediately after the election, there was a lot of interest and attention directed at the results, but as this moves more into the realm of history, it would be good to restore the chronological order and move the "Results" section back down to follow "Opinion polls" and precede "post-election events".--Bhuck (talk) 07:08, 19 November 2008 (UTC)

Image Neutrality
Now with the addition of the two protest images and Whoopi, we now urgently require an image of proponents of the proposition in action. Any ideas? --haha169 (talk) 05:13, 14 November 2008 (UTC) Is there a link and a proper license? By the way, thanks for releasing the image of Whoopi Goldberg to GDFL, it's quite a nice addition. --haha169 (talk) 07:16, 14 November 2008 (UTC)
 * What about the Saddleback church guy? I'm all for a photo or two of counter-protesters.  -- David  Shankbone  05:46, 14 November 2008 (UTC)
 * Thanks Haha. There is supposed to be anti-Proposition 8 rallies in multiple state capitals coming up.  I do not think New York City is going to be the place to find counter-protester photos if we need them.  I'd encourage anyone to find out the details if there is one going on in their local capital to go out and document it and cook up some good counter-protest photos.  We may discover, though, that winners usually stay home after the election, content with the result. In more red-leaning states, if there's a protest there is more likely to be a counter-protest.  Anyone in Salt Lake? -- David  Shankbone  14:50, 14 November 2008 (UTC)
 * http://www.kpsplocal2.com/global/video/flash/popupplayer.asp?vt1=v&clipFormat=flv&clipId1=3115942&at1=News&h1=Prop%208%20Rally%20Turns%20Violent%20-%20Live%20Report&rnd=70882418 Maybe there are related pictures on the internet? Awakeandalive1 (talk) 15:11, 14 November 2008 (UTC)
 * Maybe some can be found on Flickr. I have too many other things I'm working on to put any time in looking, although I had great fun photographing Westboro Baptist Church protesting the Pope-- David  Shankbone  20:35, 14 November 2008 (UTC)
 * I've checked, but Flickr is full of either very low quality images or a single or group of supporters waving signs before the voting began. Besides, such images may be violation of personality rights. I couldn't find any ones that are equivalent to the the Newsom/Goldstone or State Capitol images. --haha169 (talk) 01:15, 15 November 2008 (UTC)
 * There are now six images against Prop 8 and one for it. At one point does this become WP:UNDUEWEIGHT, impacting the neutrality of the article? Alanraywiki (talk) 04:25, 18 November 2008 (UTC)
 * I don't think having a demonstration before the vote rules out including a picture of the demonstration in the article. Since there is not much reason for Prop 8 supporters to take to the streets these days (at least not until and if the courts rule the vote invalid), you probably won't find many pictures of them after 4 November.  So in order to fend off charges that the article is biased, put in pictures from before the vote.  That would be better than removing good pictures just because the people in the pictures are on the "wrong" side.  Surely no one will argue that Wikipedia is biased just because all the pictures of pro-Prop-8 people are fuzzy and out-of-focus.  Maybe the people attending the conservative rallies were just too fired up to hold their cameras still...that is not Wikipedia's problem.--Bhuck (talk) 14:35, 18 November 2008 (UTC)
 * Could we open up a new article on the response to Prop 8? Reaction to the passing should be chronicled, but is best left its own page; this page should deal primarily with the prop itself and offer a link to that article. Peace. Wikibojopayne (talk) 05:12, 21 November 2008 (UTC)

Prop 8 Backlash?
I have a feeling this section I just added will not last very long. But I thought it was important since the current bias of the article is clearly against Prop 8 and even large newspapers are reporting the coincidence that opponents of Prop 8 have demonstrated at these same locations. Perhaps this paragraph could go in the first section of the article that describes the aftermath of the passing of Prop 8 but I chose to include it just after the report about the Prop 8 supporters' foul play against businesses who opposed Prop 8, for balance. Gaytan (talk) 19:53, 14 November 2008 (UTC)


 * I'm not in a huge rush to remove this (and as above, I'd ask that folks discuss before doing so), but I'm concerned about the key statement "However, the FBI cautioned late Thursday there is no evidence to link the threats to Prop. 8 opponents." Correlation does not imply causation, so having this section in this article may be inappropriate synthesis - wouldn't it more appropriately be noted on the Mormon page (if it isn't already)?  —EqualRights (talk) 22:58, 14 November 2008 (UTC)
 * I just did a few minor fixes  C T J F 8 3 Talk 23:11, 14 November 2008 (UTC)

Domestic Partnerships
The following was removed from the article:


 * This did not affect domestic partnerships which affords all of the same rights and responsibilities as marriages under state law.

The article currently has no mention of California Domestic parnership laws, so this information should be included in the article somewhere. Bytebear (talk) 04:34, 15 November 2008 (UTC)
 * No, that is clearly POV and is in fact not accurate. —Preceding unsigned comment added by 207.69.137.35 (talk) 10:15, 18 November 2008 (UTC)


 * I agree with Bytebear. The existence of California Domestic Partnerships should be mentioned.

To 207.69.137.35 -- what about Bytebear statement isn't true?

On Nolo.com( http://www.nolo.com/support/detail.cfm/ObjectID/5F8413D8-61FC-417A-B2F09CDC406ABB2F )

it states that:  Under AB 205, registered domestic partners are now entitled to the same legal treatment as spouses in most areas of state law: 

And then the only state right it mentions that one doesn't get under domestic partnership is joint filling of state income taxes.

Do you know of other state rights that are left out? Hoping To Help (talk) 07:48, 19 November 2008 (UTC)
 * A relevant question at this point would be: in what section should domestic partnerships be mentioned? Surely not "Results" of the election, or "opinion polling"?  They are indirectly mentioned in the history section with its cross-reference to History of marriage in California.  I think in order to clarify this point we need to understand what the connection is between domestic partnership laws and Proposition 8.  Proposition 8 does not mention domestic partnership laws at all, nor does it mention any number of other things, such as property tax rates, legislative re-districting, or the treatment of farm animals.--Bhuck (talk) 08:23, 19 November 2008 (UTC)

I think that the article is incomplete without a statement to the effect that Prop 8 does not affect domestic partnerships. For one thing, many (most?) marriage amendments across the country do impact civil unions, domestic partnerships and the like, so it's worth noting the occasional marriage amendment such as this one that doesn't. For another, the question of whether the identically worded Prop 22 did or did not affect domestic partnerships was the subject of significant controversy and legislation in years past. So with all due respect to property tax rates, legislative redistricting and farm animals, Bhuck's point is not taken. Xrlq (talk) 21:34, 19 November 2008 (UTC)


 * Prop 8 was only 14 words and it only mentioned marriage. The problem with expanding the article to cover domestic partnerships is that mentioning domestic partnerships implies that they are equivalent to marriage.  To be NPOV, the article would then have to explain that they are not equivalent and get into the differences between marriage and domestic partnerships.  That is a lot of material to cover for a topic tangentially related to Prop 8.  There are other articles that focus on domestic partnerships in California, maybe adding domestic partnerships to the "See also" section would be sufficient? EmeryvilleEric (talk) 22:36, 19 November 2008 (UTC)
 * While Xrlq might not take my point about farm animals, the question of where such a comment about domestic partnership should be added remains open. If the reason we are to mention it is that many other state referenda did include domestic partnerships in what was being banned, and California did not, then maybe we should include such a statement in the section where Proposition 8 is compared to referenda in other states.  At the moment, however, we have no such section, though I am not fundamentally opposed to adding one.--Bhuck (talk) 14:23, 20 November 2008 (UTC)

Might it be helpful for non-Americans (maybe even non-Californians) to mention Domestic Partnerships in the conext of this article. I looked up Proposition 8 because I wasn't clear what it was. it wasn't until I got to the Talk page that it became clear that DPs were not part of prop 8. In my country DPs have been introduced but not gay marriage. I havn't heard a lot of pressure for this to be changed (either way).--nick keighley (talk) 15:56, 20 November 2008 (UTC)
 * The issue is that the article is incomplete. Without the mention of domestic partnership rights, the reader is left thinking there are no rights given to gay couples.  This is POV and needs to be clarified. Bytebear (talk) 19:38, 20 November 2008 (UTC)
 * As noted in the archived discussion on this topic, the Official Voter Guide under External links shows under Arguments and Rebuttals that both sides address the issue of domestic partnerships. Alanraywiki (talk) 22:51, 20 November 2008 (UTC)
 * I agree the article should include mention of DPs, but it's very difficult to avoid bias in stating anything about them. However, their exclusion also implies bias, in my opinion. Perhaps an addition some where at the beginning of the article could read something like: "The proposition did not affect extant laws regarding domestic partnerships, though both side of the debate addressed those laws in their arguments." Peace. Wikibojopayne (talk) 00:02, 21 November 2008 (UTC)

I see the change now in the intro section, and I agree with it 100%. It avoids bias and includes DPs. Thanks, whoever did the edit! PeaceWikibojopayne (talk) 01:16, 21 November 2008 (UTC)
 * The current language needs some major changes, 1) domestic partnerships are not an "issue", they are law; 2)it's not differences might exist, differences do exist, the Supreme Court and the Legislature have pointed them out; 3) when did domestic partnerships become an institution? EmeryvilleEric (talk) 02:28, 21 November 2008 (UTC)
 * EmeryvilleEric, my suggested edit avoids all three of your objections. 1) calls DPs law, not an issue; 2) doesn't mention similarities or differences between marriage, just says Prop 8 doesn't affect DP law; 3) doesn't call DPs an institution. So, would you prefer my suggested edit in place of the existing sentence? If so, I'd be behind that. (My suggested edit is a just few posts up.) Peace. Wikibojopayne (talk) 19:02, 21 November 2008 (UTC)

Changes
Please change "Mormon Temples" to "LDS Temples"

Greenlief1 (talk) 05:23, 15 November 2008 (UTC) Thank you


 * Done. --Joe Decker (talk) 07:04, 15 November 2008 (UTC)

Additional List of Supporters/Detractors of Prop 8
I think a section should be broken out to make it a bit clearer who funded both sides Prop 8. The LDS is one famous example, but here is an example of an organization who contributed a noticeable sum... the foundation for John Templeton (of Franklin-Templeton Investments). The Templeton Foundation is just outside Philadelphia, and has been a financier of some rather controversial issues on both sides of the political spectrum:

Templeton Invests $1MM for Prop 8 —Preceding unsigned comment added by 68.81.31.184 (talk) 04:32, 16 November 2008 (UTC)

ETA:  Could the PRO/CON Prop 8 financial backers be more clearly shown in a table or side-by-side list so they're easier to see? —Preceding unsigned comment added by 68.81.31.184 (talk) 04:35, 16 November 2008 (UTC)

Uncertainty and challenges section
The Uncertainty and challenges section is getting large. Would it read better broken up into post-election legal uncertainty and challenges and demonstration sections? EmeryvilleEric (talk) 19:49, 16 November 2008 (UTC)
 * Makes sense to me. I see it's already been done so you can chalk that up as a post-facto endorsement.  However, I do see that both sections are getting quite long.  They suffer a bit from recentivism.  If the legal challenges succeed or fail, then like the measure itself the final result will be the main thing and the process by which that happened will be relatively less important.  The demonstrations will die down eventually of course, so years from now it may seem like a very minor thing compared to the amendment itself.  On the other hand they are getting a lot of press for now.  We can keep an eye on it, and maybe adjust the weight after everything settles.   Wikidemon (talk) 02:58, 18 November 2008 (UTC)


 * Well said regarding recentivism. Also, maybe someone should consider thinning out the proponents/opponents section?  It seems a bit too much like a "look-who-I've-got-on-my-team" battle.  Perhaps the religious or political groups can be grouped under some generic term, or even omitted altogether. MrBell (talk) 05:17, 18 November 2008 (UTC)

Link to In re Marriage Cases
There should be a link to In re Marriage Cases, probably in the intro of the article. The prose already refers to the decision without linking to it. I'd just do it, but the note at the top of the talk page suggests we discuss it here. Gentgeen (talk) 00:33, 19 November 2008 (UTC)

Compatibility with Equal Rights article in State Constitution
Please add: On November 19, the California Supreme Court has agreed to review whether Proposition 8 is a constitutional revision rather than an amendment but has not commented on whether Proposition 8 is compatible with Article 1, Section 7(b) of the California State Constitution, which states: A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

It's compatible. The law says any man may marry any woman, and any woman may marry any man. Gays have the same right to do so as normal people. —Preceding unsigned comment added by EighthProposition (talk • contribs) 17:39, 20 November 2008 (UTC)
 * I have to argue that people with homosexual tendencies are as normal as anybody with a propensity to act abnormally. --ElderHap (talk) 23:10, 20 November 2008 (UTC)
 * While EighthProposition has an interesting legal argument, the normality or abnormality of those with homosexual tendencies is not salient. Before changing his stance on the issue, I believed the Governator himself endorsed that legal argument when he said, "I think gay marriage should be between a man and a woman." http://politicalhumor.about.com/cs/schwarzenegger/a/aa080703.htm. Peace. Wikibojopayne (talk) 00:22, 21 November 2008 (UTC)
 * The logic of the argument is valid, but the CA supreme court said, "In our view, it is sophistic to suggest that this conclusion is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the person’s sexual orientation. Just as a statute that restricted marriage only to couples of the same sex would discriminate against heterosexual persons on the basis of their heterosexual orientation, the current California statutes realistically must be viewed as discriminating against gay persons on the basis of their homosexual orientation." But, then the people spoke.  Reference the preamble to the constitution, "We the people, in order to form a more perfect Union..."  The article might be improved by including the information, but there's a specific link to both the Preamble and the court case. In the court's opinion, the behavioral quality of sexual orientation is a suspect class.  But the logic behind that argument fails because it assumes that discrimination on the basis of behavioral qualities by which people express deeply felt needs is wrong.  Some people express deeply felt needs in other ways that are currently illegal, e.g. rape.  The court's rationale rationalizes the notion that laws authorizing imprisonment of rapists are discriminatory.  --ElderHap (talk) 01:37, 21 November 2008 (UTC)
 * I missed the part where the court got into the behavioral quality of sexual orientation, could you point it out? EmeryvilleEric (talk) 02:22, 21 November 2008 (UTC)

A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

I wonder if this applies to rich/poor. If I can't afford some "privilege" like driving across the bridge, is that unconstitutional? —Preceding unsigned comment added by 71.112.130.129 (talk) 22:22, 22 November 2008 (UTC)

I don't think it makes any sense to add a section on whether Prop 8 is or isn't "compatible" with the P&I clause or any other part of the Constitution. The whole point of a constitutional amendment is to change the Constitution, not to be "compatible" with it. To the extent that a new constitutional provision conflicts with an older one, the new amendment wins every time. Xrlq (talk) 21:12, 26 November 2008 (UTC)

Why is the CNN exit poll included in the Prop 8 article without comments on its validity?
Why is the CNN exit poll considered valid or trustworthy and included in the prop 8 article when they do not release the locations of their interviews and present numbers where virtually all eligible African-Americans voted and Asian-Americans voted well below their numbers? Pointing out problems in exit polls is no more performing new research than correcting an article that says 1+1=4. Cydelin (talk) 00:43, 24 November 2008 (UTC)


 * I'm no expert, but I know from PoliSci courses back in the day that a survey comparing demographic data with 800 participants is statistically significant and tends to be strikingly accurate. Since this exit poll had well over 2200 participants and factors dozens of categories, I consider that a survey of stunning depth and breadth. That said, your polling location criticism sounds legitimate to me, but you still need to cite a source - any source.
 * My suggestion: just make some mention of exit polls being imperfect and link to Wiki article on exit polls. Peace. Wikibojopayne (talk) 06:55, 24 November 2008 (UTC)


 * To accurately state the results of a poll, one should mention the error. Something like +-5%, 19 times out of 20. As the article stands, this poll does not seem scientific. I also haven't come across any of these error terms on the web. I think one can easily argue that the way the results are currently stated in the article is incomplete because of the lack of error. RobHar (talk) 07:22, 24 November 2008 (UTC)

Don't copy and paste from news articles!
I just tried to clean up the structure of the post-election legal-issues section, and I found that nearly two full paragraphs were near-exact copies of published news articles. Yo, people, don't do this! It's a violation of copyright. Instead, read the news article and then write the information in your own words. I didn't have time to rewrite one of the paragraphs, so I put it in quotes instead; I know that's not a good long-term solution, but I figured it would help encourage someone else to rewrite. --Elysdir (talk) 19:29, 16 December 2008 (UTC)

Post-election organization
At some point in the future it would probably be a good idea to break the post-election section into multiple sections. For instance: a section about the vote itself (analyses of the demography, polling, etc as well as the actual results); a section about the reaction (protests, counter-protests, counter-counter-protests, pundits, whatever); a section about the challenges and their outcome; and a section about the lasting effects. I say at some point in the future because we don't know the outcome of the challenges yet and it's too early to tell what the long-term effects will be one way or the other. But I figured I'd throw that out there. Thompsontough (talk) 00:59, 17 December 2008 (UTC)


 * I agree with this suggestion, especially for what seems to be a highly notable article. These theoretical future sections surely have notability in their own right. — Athelwulf [T]/[C] 09:04, 20 December 2008 (UTC)

"Calif. AG urges court to void gay marriage ban"
http://news.yahoo.com/s/ap/20081220/ap_on_re_us/gay_marriage_lawsuits

Attorney General Jerry Brown has changed his position on the constitutionality of Prop 8. Should this be included in the article? — Athelwulf [T]/[C] 08:21, 20 December 2008 (UTC)
 * Um yes, definitely. Feel free to be bold Nil Einne (talk) 10:24, 20 December 2008 (UTC)
 * Wow, great news article. The AG's position, the Yes on 8 brief discussing the "fight in court to undo those unions that already exist," and Ken Starr's comments are all worthy additions.  I'd like to read what the AG office said ("to submit its own brief to the court Friday").


 * When should we start a new article focused solely on the Supreme Court case(s)? Mr Bell  ( talk ) 06:15, 21 December 2008 (UTC)


 * I'd argue for starting such an article ASAP.  Right now, the current lawsuits are described in this article in a disorganized way, and a new article will provide a good place for both arranging that information and allowing us to synopsize and clarify the information in this article.  Moreover, I think there's more than enough potential for what such an article could contain (what lawsuits are there?  Who filed them?  What legal arguments are used, how do those arguments compare and contrast?  What's the procedural history).....   --Joe Decker (talk) 19:51, 22 December 2008 (UTC)

Supreme Court
Is it possible to create City and County of San Francisco, The County of Santa Clara, and The City of Los Angeles, et al. v. MARK D. HORTON using http://ag.ca.gov/cms_attachments/press/pdfs/n1633_pdf_of_city_and_county.pdf as the main cite, or should we wait for the case to conclude or begin hearings? I'm really bad with court case articles, since they have more complicated citing schemes, but if anyone is interested... --haha169 (talk) 21:46, 20 December 2008 (UTC)
 * Or can we just call it In re Proposition 8 and someone can move it to whatever court title it later assumes?  Mr Bell  ( talk ) 06:34, 21 December 2008 (UTC)
 * The official court title is already named: City and County of San Francisco, The County of Santa Clara, and The City of Los Angeles, et al. v. MARK D. HORTON. But I don't know what to do with the body of the article... Is it OK to combine with In re Marriage Cases, at least temporarily? --haha169 (talk) 19:29, 21 December 2008 (UTC)

Possible cites
--haha169 (talk) 19:07, 21 December 2008 (UTC)
 * http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/letter-support-s1680xx-multi.pdf
 * http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/s168078-letter-pacjust-denial.pdf
 * http://news.lp.findlaw.com/hdocs/docs/election2008/20081105-sf-la-prop8-petition.pdf
 * http://ag.ca.gov/cms_attachments/pres/pdfs/n1633_pdf_of_city_and_county.pdf


 * I think that since you've done all the research you get to make the decision. I kinda leaning toward your original " Cities et al. v. MARK D. HORTON." However, I'll support either an article creation (of whatever title you choose) or a temporary addition to In re Marriage Cases. In my opinion, there's a good group of editors working on this page (thanks to the anon IP block, too). Just let us know and I'm sure we'll all pitch in. Mr Bell  ( talk ) 17:42, 22 December 2008 (UTC)


 * I agree with Mrbell it's your call, but if you want an opinion, I lean towards "new article", I think this case is less related to "In Re Marriage Cases" directly than both are to Prop. 8 more generally. --Joe Decker (talk) 19:45, 22 December 2008 (UTC)


 * I'm not really sure what to call it. Cities et. al v. Mark D. Horton is rather long... and I also learned from my research that there are 3 total lawsuits (although the city one is most publicized). It could go either way, In re Proposition 8 Cases or Cities et al., v. Mark Horton. --haha169 (talk) 00:50, 23 December 2008 (UTC)


 * At the California Supreme Court site, the documents the CA SC uses to talk about essentially responding to the three cases together, rather than apart, actually start with the Strauss lawsuit, then the Tyler, then the Cities. ( http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/s1680x-supreme-order.pdf )  I'll also note that there were additional lawsuits that were denied but responded to with suggestions from the court that those petitioners write amici letters and/or briefs to the existing cases.  I'm half-tempted, knowing absolutely nothing about Wikipedia precedent on the subject, to either suggest "Strauss et al v. Horton", or to simply title it something more generic such as "Lawsuits Challenging California Proposition 8".   Actually, if you want an opinion from me, I like just guessing it's going to be something like "In re Proposition 8 Cases" and working from there, I think there's a very good chance that by the end of this there will be a catch-all name used by the court.  However, I don't believe it's necessary to wait for the perfect name, I've renamed articles before, it's not so bad.  :)  --Joe Decker (talk) 04:33, 23 December 2008 (UTC)

Proposition 8 did not "change" the California Constitution
The opening line is wrong. The California Constitution never allowed heterosexual marriage, so nothing was "changed" by passing Prop 8. The California Supreme Court did say it was ok in an "opinion," but it was never in the language of the California Constitution. Proposition 8 therefore "added" language to the California Consitution, but did not "change" it. —Preceding unsigned comment added by Cmw888 (talk • contribs) 22:57, 17 December 2008 (UTC)


 * "Amending the California Constitution by voter initiative requires a simple majority to be enacted. A constitutional amendment passed by the electorate takes effect the day after the election."

Knowledgekid87 21:49, 17 December 2008 (UTC)
 * Adding words to the constitution is a change.--Bhuck (talk) 07:20, 18 December 2008 (UTC)


 * Proposition 8 either amended or revised the constitution. Both amendments and revisions constitute "changes" to the constitution. However, the idea that the Judicial Branch is somehow subordinate to the Executive or Legislative branches seems a common enough misconception that perhaps details about how U.S. government works should be explicitly stated in the article. Prior to Proposition 8, whether or not the constitution contained a right for gay and lesbians to marry depended upon the constitution's interpretation. The branch of government responsible for making that interpretation is the judicial branch. The courts found there was, indeed, a constitutional right for gays and lesbians to marry. Therefore, the only recourse for marriage opponents was to change the constitution via the amendment/revision process. Rangergordon (talk) 06:56, 19 December 2008 (UTC)


 * I believe the court used language in the CA Constitution as the basis for its ruling. Therefore, the court basically said that the Constitution guarantees a right to same-sex marriage.  If this was true (and the court held that it was), then Prop. 8 did change the Constitution.  JBFrenchhorn (talk) 23:41, 21 December 2008 (UTC)


 * The court must have used the California Constitution as the basis for its ruling. What other basis could it use? Proposition 8 explicitly changed the constitution. It had no other purpose. Rangergordon (talk) 09:56, 23 December 2008 (UTC)
 * The court might have used language from the U.S. federal constitution, such as the 14th amendment, as a basis, since the federal constitution also counts as valid law in each of the states, including California. In some cases, in fact, states are limited in what they can have in their own constitutions by the federal constitution, though perhaps it would be up to a federal court to determine this.--Bhuck (talk) 14:14, 23 December 2008 (UTC)
 * But in this case the Court did use the CA Constitution. JBFrenchhorn (talk) 13:47, 24 December 2008 (UTC)


 * The state supreme court is reviewing whether the proposition is an amendment or a revision. The article should remain neutral on the law and use "altered" or "changed" until the state supreme court has rendered its opinion. Jordan 20:20, 11 January 2009 (UTC)

Misunderstandings Regarding the Role of the Judicial Branch in U.S. Constitutional Government

 * There seem to be enough misunderstanding on the talk page regarding the In re Marriage Cases decision that I'm wondering whether the article needs to include a short primer on how government works in the U.S.? Such a primer might include that there are three branches of government: the Legislative Branch, which enacts laws; the Executive Branch, which upholds laws; and the Judicial Branch, which interprets laws.

This might clear up such misconceptions as:
 * 1) Proposition 8's purpose was to reject a California Supreme Court decision, not to change the constitution. (In fact, it explicitly amended, and possibly revised, the California Constitution.)
 * 2) The court routinely arrogates the ability to "make up" or propose new rights out of the blue as it sees fit, so any such rights are merely preliminary and subject to general referendum. (In fact, the court has no mechanism by which to propose or change any law. It is, however, required by the Constitution to interpret existing laws. Any law not having undergone judicial scrutiny may be considered "untested.")
 * 3) The California Supreme Court unilaterally "changed" California law and "proposed" a right to marriage for gay and lesbian couples. (In fact, the court upheld its responsibility to invalidate a class of laws found unconstitutional under the Equal Protection Clause.) Rangergordon (talk) 08:08, 19 December 2008 (UTC)
 * I don't think these are all misunderstandings of the way government works. The first misconception is factually off because the court hadn't made the decision at that time - it may be accurate to say that the purpose of the constitutional amendment was to preempt the court's decision, though.  The second point would be as you say, especially if someone says the court's decisions are somehow subject to referendum in a way the legislature's aren't.  The third point, however, is a valid one - a standard conservative view of the courts would say that the court exceeded its authority in unilaterally changing the constitution and imposing gay marriage on the state just as a standard liberal view of the courts would say that the court had a responsibility to make its decision.  For that last point, either of the statements is irredeemably POV on its own.  --Philosopher Let us reason together. 09:07, 19 December 2008 (UTC)


 * I support the idea of very briefly explaining just how the three branches of California's government work. I believe people might come to this article, having heard unfounded legal arguments, to verify if those arguments were true. Surely there are lots of pages on popular legal websites explaining this stuff.


 * As I understand it, the fact is that the California Supreme Court, as well as any other high court in the US, cannot by definition "legislate from the bench" even if it wanted to, because it simply does not have legislative power, so any claims that they are in fact "legislating from the bench" seem to have no basis in fact. The California government's judicial branch merely interprets what the Constitution says, by considering precedent and all legal arguments presented to it. And in fact, the judicial branch is the only authority that has this power. Not Governor Schwarzenegger, not the state legislature, not the people. The legislature and the people propose and either enact or reject changes to the document, while the court interprets what the document says, and the proposed changes are bound by provisions in that document whose exact meaning and breadth is determined by the the court.


 * Also, I agree that it could be argued that "the purpose of the constitutional amendment was to preempt the court's decision". But I do also believe it shows a misunderstanding of how the government works to claim "Proposition 8's purpose was to reject a California Supreme Court decision", and that all such decisions "are merely preliminary and subject to general referendum". Court decisions are not automatically referred to the people. Proposition 8 was placed on the ballot by initiative petition. And court decisions are not by any stretch of the imagination preliminary. From mid-June until at least November 5, there was a very clear, very real legal right of same-sex couples to marry; that's why many of them did! :)


 * If for any reason my understanding of the California government doesn't jive with the actual fact (which is possible; I'm an Oregonian), then that's more reason to me to add the aforementioned bit about how the government works. — Athelwulf [T]/[C] 09:01, 20 December 2008 (UTC)


 * Please note that my bullet list above is of common misconceptions regarding the "way government works"—not my own personal convictions or arguments. That is, I'm well aware that Proposition 8 was proposed before the In re Marriage Cases decision, so it is obviously impossible that the purpose of Proposition 8 was to reject that court decision. I'm saying it might be worthwhile to clear up these common misconceptions, and I ask the other editors to kindly read those bullet points in that spirit.


 * The idea of "legislating from the bench" is certainly a standard political criticism of certain judicial decisions. Just about any judicial decision can be expected to generate such criticisms. However, if there is a citable basis--for some "standard conservative view" of the judiciary which holds certain decisions, such as In re Marriage Cases, to be less valid than certain other surprising and notable decisions, I cannot find it. (Descriptive passages in such sources as Black's Law Dictionary are often improperly cited as prescriptive.) Unless such a basis can be found, these arguments fall into the realm of political opinion, not legal review, and should be regarded as such.


 * The need for this proposed section is exemplified by the claim that In re Marriage Cases somehow changed the California Constitution--which is factually incorrect. The court, in its interpretation of California statutory law, did not—and could not—change the language of the California Constitution. It determined that a statutory law violated the California Constitution, thereby upholding the inviolability of that Constitution. A court may—actually must—strike down laws it deems unconstitutional, but there exists no legal mechanism whereby a court may ever hope to insert language into a constitution, or enact a law, as argued by those who claim "judicial activism."


 * The bare bones of the matter is any claim that In re Marriage Cases "changed the constitution" should be backed up with citations of the specific changes in constitutional language imposed by that decision. Since there are none, such claims go far beyond POV into the realm of misinformation. Rangergordon (talk) 09:36, 23 December 2008 (UTC)


 * Indeed. It's my understanding that the only deletions of law made by the decision in In Re Marriage were sections 300 and and 308.5 the California Family Code, which if I recall correctly are not themselves parts of the Constitution.  "In Re Marriage Cases" changed the law, and the guides the interpretation of the COnstitution,  but did not change the Constitution, as I understand it.  --Joe Decker (talk) 17:46, 23 December 2008 (UTC)


 * Right: statutory, not constitutional, language. (Nice job, BTW, on identifying the affected statutes!) Rangergordon (talk) 06:45, 24 December 2008 (UTC)


 * Thanks! --Joe Decker (talk) 16:57, 24 December 2008 (UTC)


 * I agree with Athelwulf 's opinion that "people might come to this article, having heard unfounded legal arguments, to verify if those arguments were true." I concur that this article needs a "short primer on how government works." I'd also side with Rangergordon that claims of "judicial activism" must be cited (just a newspaper criticism or two would suffice).  Perhaps just the short primer with a few links to activism, restraint, and something describing the role of justices vs. legislators? As long as it's not too long and contentious, I'm all for it. (No more bouts of name-calling from unregistered IPs when the block comes off, please.)  Mr Bell  ( talk ) 17:13, 23 December 2008 (UTC)

I hope I don't sound rude, but the first misunderstanding is in the title of this section. The Proposition 8 cases, at least for now, are dealing solely with California Constitutional Government. The role of the judiciary laid out in the U.S. Constitution applies ONLY to the federal government of the United States. The role of the judiciary in California Constitutional Government is very similar to the federal role, but it is NOT identical. There are things the California Supreme Court can do that the U.S. Supreme Court cannot; and vice-versa. (Of course, the really big departure from the federal model is the Louisiana judiciary, in which the principle of stare decisis does not apply because it's based on French code law instead of English common law.)

Our nation is *not* Canada, where the federal constitution assigns some powers to the federal government and assigns other powers to provincial governments. We are the opposite from Canada. The U.S. Constitution assigns powers ONLY to the United States Government. States are not allowed to exercise powers assigned to the federal government, either explicitly or implicitly; but they derive the state governemnt powers they have from their own constitutions - NOT from the U.S. Constitution. Signficantly, whereas the United States (federal) cannot exercise any power that is not at least implicitly assigned to it by the U.S. Constitution (i.e., the doctrine of limited sovereignty), the individual states are free to exercise any sovereign power that is not prohibited to them by their own constitution or the U.S. Constitution.

Since this is a California-specific item, any discussion on the role of the judiciary should be specific to its role within California. Among other differences with the federal state and most of the unitary states, though it's not particularly relevant to the discussion envisioned, is the fact California has in common with Lousiana that they are the only two states with two de facto capital cities. The Louisiana judiciary is headquartered in New Orleans while the rest of that state's government is in Baton Rouge; and while the legislative and executive branches of California government are located in the constitutionally-designated capital city of Sacramento, the California Supreme Court and judicial branch generally are headquartered in San Francisco. In fact, the California judiciary has never been headquarted in the same city as the rest of California state government (at least not since California was transferred to the United States of America in 1848, from the United States of Mexico; the capital of Mexican California having been Monterey). —Preceding unsigned comment added by User:98.210.168.158 (contribs) 23:39, 10 January 2009 (UTC)