California Voters Approve Gay-Marriage Ban

I don't understand the problem. I would if you had a general objection against courts looking at legislative records at all. Some justices, most prominently Scalia, make a point of ignoring it and focusing on the language of a law alone. (I think you once said you sympathize with this particular part of his approach.)

But to a judge who does pay attention to the legislative record behind a law, what difference does it make who the legislator is? Why pay attention to the legislative record when the law-giver is a parliament voting on a bill, but not when it's an electorate voting on a citizen's initiative?

It's simply impossible to determine what motivated them to vote. Some of them may have voted to "preserve the sanctity of marriage" or "strengthen the family structure." And some of them may have voted "yes" because they hate homos.

Thomas wrote:

But to a judge who does pay attention to the legislative record behind a law, what difference does it make who the legislator is? Why pay attention to the legislative record when the law-giver is a parliament voting on a bill, but not when it's an electorate voting on a citizen's initiative?

Because 7,001,084 people voted "yes" on Proposition 8. It's simply impossible to determine what motivated them to vote. Some of them may have voted to "preserve the sanctity of marriage" or "strengthen the family structure." And some of them may have voted "yes" because they hate homos. We can't know what motivated all 7,001,084 voters, and I don't know how the court could do it either.

In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted "yes" instead of "no," or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist.

As I've mentioned, my thoughts on this are evolving as I learn more about the case. In the meantime, for everyone who thinks that Judge Walker made it difficult for the appellate court to strike down his ruling by focusing so much on the facts, a contrary opinion.

Discerning the intent of Congress has exactly the same problem. Turning over the mike to my sometimes-guru Scalia:

Some of them may have voted to "preserve the sanctity of marriage" or "strengthen the family structure."

hawkeye10 wrote:

What is your argument that citizens dont have the right to define marriage as a hetero institution?

It's identical to my argument why citizens don't have the right to define marriage as a same-race institution.

Equal protection is in the constitution Brandon.

A majority can't vote to violate the constitution. They can vote to change the constitution but that takes more than a simple majority.

Can I get together with a bunch of people and vote away your right to express your political views?

No?

Brandon wrote:

Funny, I thought the rule was one man (or woman) one vote.

No, that's only half of the rule. Granted, it's true that all government action must be legitimized by votes. But that doesn't mean people can vote for anything they want, and what the majority wants will be guaranteed to be legitimate. In particular, as a long-standing Supreme Court precedent puts it, "fundamental rights may not be submitted to a vote; they depend on the outcome of no election." And marriage is a fundamental right, according to another well-established Supreme Court precedent.

Baloney. Only rights guaranteed in the Contitution may not be submitted to a vote (except in amending the Constitution).

DrewDad wrote:

Can I get together with a bunch of people and vote away your right to express your political views?

No?

No, because the Constitution actually does mention the right to vote and to freedom of speech. Show me where the Constitution guarantees the right to gay marriage.

parados wrote:

Equal protection is in the constitution Brandon.

A majority can't vote to violate the constitution. They can vote to change the constitution but that takes more than a simple majority.

This law, fairly passed by a majority of the electorate, applies identically to all people. You have now taken away my right to vote, and I am therefore justified in doing virtually anything, including armed insurrection. If the loss of the right to vote doesn't justify that, what would? I can get a large majority of the electorate to vote my way, and one or a small handful of your cronies can neutralize the election results. This is absolutely unacceptable.

[...]the Constitution actually does mention the right to vote[...]

This law, fairly passed by a majority of the electorate, applies identically to all people.

Brandon9000 wrote:

This law, fairly passed by a majority of the electorate, applies identically to all people.

No, it doesn't. The court said so.

You are free to slobber all over yourself all you want but the constitution gives courts the power to decide not Brandon when it comes to issues related to the constitution.

The right to pursue happiness.

What does "fairly passed" mean?