Nexus: Chapman's Journal of Law and Public Policy

Proponents of Proposition 8 have frequently cited the need to protect the “sanctity of marriage.” Sanctity means sacred or of ultimate importance, so what exactly is sacred about marriage that Proposition 8 advocates so adamantly seek to defend?

Marriage is an age-old tradition and institution that figures very prominently in human history because it is the foundational element upon which our families, and thereby our societies are built. Further, proponents of Proposition 8 have a long, and often very personal history that supports heterosexual marriage. Most individuals come from a home where there was a mother and a father (or ...

The election of 2008 will remain vivid in my memory for many years to come. Not only because of the momentous step in America’s history of electing the first African American president, but also because of the contentious battle that raged over proposition 8. It was a rollercoaster. America took a giant step in the struggle for equality by breaking the racial barrier and electing a black president, while at the same time California took a few steps backwards by preventing homosexual couples from marrying. We took one giant leap forward, and a few stumbles back.

What sticks out ...

Professor Cianciarulo raises a very interesting point in her article—the main arguments for prohibiting same-sex marriage are not derived from legal premises or facts, but from supposed religious ideals, tradition and fear.

Religion
The analysis of the marriage process suggests that California’s system is not one of strictly religious foundation. The fact that the process is partially, and can be completely civil, makes a strong argument that religion has nothing to do with marriage—at least not legally. I can be argued that the absence of religious questions or doctrine from the marriage license is indicative of an ...

Professor Cianciarulo brings up clever arguments to address the 3 main arguments proponents of the Proposition 8 raise. What caught my attention about the article was about religion and its correlation with marriage- namely gay marriage. I, too, have been raised Catholic since I can remember, and although the way I was raised had a lot to do with the decisions I make in the future, I am not bound by the walls of my religion. Religion is a choice, and that notion has been lose in lieu of Prop 8 arguments. While some want to "preserve" the sanctity of ...

Supreme Court announced that on March 5th, it would hear arguments regarding the constitutionality of Proposition 8 that reinstated a ban on same-sex marriage. The Court will also consider 18,000 same-sex marriages that occurred before the November election. Forty three activist groups have submitted written arguments and “friend of the court” briefs asking the Court to remove the ban. This is an usually quick response by the court, considering the deadline to send the briefs was only a month ago. While forty-three activist organizations and groups have argued against the ban, twenty organizations, including religious and legal groups, have ...

After Vermont, Connecticut became the second state in the United States to accepted same sex marriages. However, it did so without judicial intervention for the first time in history in 2005. In October, the Connecticut Supreme Court held that that failing to give same-sex couples the full rights was against the equal protection clause of the state’s constitution. After the court’s order, Connecticut became the third state, after Massachusetts (2004) and California (2008) to legalize same-sex marriage.

Gays and lesbians community hoped that by November 4, enough Californians would help their gay and lesbian friends, family, and coworkers ...

On March 5, 2009, the California Supreme Court will hear arguments over the constitutionality of the ban on gay marriage. Just last month, the court received final briefs challenging Proposition 8. The courts anticipated decision will broadcast live on the California Channel within ninety days of oral arguments. Approximately 18,000 gay couples, who married before the November election, await the announcement as the fate of their marriages will be revealed. Forty-three groups, including civil rights activists and legal scholars, filed briefs in opposition of Proposition 8. Twenty groups, including several religious groups, filed briefs in favor of the proposition ...

Judicial activism has become a universal pejorative, a rare point of agreement between red and blue America, as conservatives and liberals alike condemn courts for overturning policy decisions (which they usually support). Clint Bolick, a senior fellow at the Goldwater Institute in Phoenix and advocate of judicial activism, argues that these individuals would reduce the judiciary's constitutional scrutiny of the actions of other branches of government--a role that is exercised not too much but far too little. He does agree that courts deserve criticism when they exercise legislative or executive powers, for example, ordering taxes to be raised, assuming ...

Oral arguments before the California Supreme Court regarding the validity of last November’s Proposition 8 will be heard on March 5th. A decision could be had by early summer, and yet whatever the court decides, dissent and debate will surely continue. It is unlikely that any court ruling could substantially alter an individual’s fundamental beliefs about marriage and its role in society. Therefore, in order to have rational academic debate, both sides must strip out the emotional, moral aspects of the controversy, and focus in on the legal aspect—that the state of California defines marriage as legally ...

When the California Supreme Court struck down the state's ban on same-sex marriage last May in a 4-3 vote in In re Marriage Cases, as we all know, the decision sparked much debate across the nation as to whether the Court engaged in “judicial activism.” The Court's ruling invalidated a statute that was adopted as a result of a 2000 ballot initiative, Proposition 22. That Proposition provided "Only marriage between a man and a woman is valid or recognized in California," and it passed with over 61 percent of the vote. The Court held that the law enacted ...

The California Supreme Court decision that had upheld the legality of same-sex marriage was overturned in the November 2008 election. There have been numerous cultural and legal issues evoked by Prop 8. It’s passing has enshrined into the state Constitution a prohibition against same-sex marriage, providing that only “marriage between a man and a woman is valid or recognized in California.” To contest this deprivation of fundamental rights, supporters of same sex marriage have raised issue as to whether Prop 8 is an “amendment” or a “revision” to the Constitution. “California uses the direct initiative process, which enables voters ...

Ronald Steiner, Ph.D., J.D. raises some very interesting issue regarding direct democracy in the context of constitutional amendment (or is it revision?). It seems interesting that a simple majority vote is enough to cast aside the notions for fairness and equality for the state of California—the state that has a tendency to set a trend for the rest of the nation. Never mind that fact that many voters found Proposition 8 to be confusing. Nevermind that huge lobbies spent millions of dollars to try to convince the country that gay marriage would somehow harm children. The real ...

At one time in California’s history, the legislature saw fit and sanctioned the use of direct democracy to achieve certain representative democratic ideals. Despite the initial successes and laudable efforts of this measure, its tactics and objectives are now coming under attack as Proposition 8 opponents seek to restrict this form of representative action. What are the merits of enacting such a progressive democratic experiment, and what does it mean if we allow this to fail?

One of the first, and most notable, characteristics of direct democracy is that it allows the governed to directly represent their collective and ...

The founders of early democracies were well aware of the dangers inherent in giving the masses direct control of legislative decisions. Senates and other similar bodies were deemed necessary for a plethora of reasons. Chief among these is that the masses are not informed about the many intricate and difficult issues involved with such decisions. This does not mean that I am against such practices, but I do believe that such decisions should be open to judicial review.

Proposition 8 is a prime example of why I believe that a constitutional initiative should be open to review. When the powers ...

In re Marriage Cases (2008) 43 Cal.4th 757 and Proposition 8 undoubtedly put California’s legislative and judicial branches in a contemptuous situation. Both branches have been attacked in this heated debate. One side is advocating the passage of Proposition 8, holding that marriage is traditionally between a man and woman. On the other hand, opponents of Proposition 8 argue that the Constitution of California does not prohibit two people from choosing who they marry. Aside from one’s political beliefs, Proposition 8 highlights one major difference between the United States Supreme Court and the Supreme Court of California ...

The current controversy surrounding Proposition 8 exposes the inherent flaws of California’s popular initiative system, which requires only a simple majority to amend the California constitution. In theory, the plebiscite aspect of the popular initiative sounds like a noble, inclusive system. In reality, it undermines the primary design of California as a constitutional republic. A constitution is “an instrument of a permanent and abiding nature” Livermore v. Waite, 102 Cal. 113, 118 (1894), and should not be subjected to the whim of a simple majority.

How many people truly understand the qualitative consequences of their votes? How many read ...

http://www.nytimes.com/2008/11/01/business/yourmoney/01couples.html?pagewanted=1

The article illustrates the difficulties of gay couples, either married or in domestic partnerships where granted and recognized, that the married heterosexual couples do not face. One naturally assumes that the proponents of same sex marriage fight for their cause because they believe that the homosexuals are also entitled to this ultimate form of union called marriage where two people come together to form a family and any incentives and benefits attached to it. But the article seems to suggest that granting marriage or its equivalent to ...

Last month, a state court judge in Montana disregarded the “Rights of the Terminally Ill Act” and found that the Montana Constitution guarantees the right to assisted suicide. The article below continues by explaining the positions of two dying patient plaintiffs and the four doctors that joined the lawsuit to assist in the respective suicides. Though the debate of assisted suicide has become a relevant issue for many states in the past few years, this article begs the question, ‘at what point do we allow the judiciary to weigh in?’

It is difficult to make a hard and fast rule ...

Black's Law Dictionary defines judicial activism as a philosophy of judicial decision-making where judges allow their personal views about public policy to guide their decisions, and usually ignore prior case precedent. In the article titled “Judicial Activism by Conservatives,” Erwin Chemerinsky discusses the theory of judicial activism and applies it to the holding in the United States Supreme Court case, District of Columbia v. Heller. This case held that the Second Amendment right to “keep and bear arms” is an individual right granted to all of its citizens and is not just reserved for the militia. Chemerinsky believes that ...

With President Obama taking office this past Tuesday, I started to wonder what his stance on the California constitutional ban on gay marriage would be. I checked out his website at (http://www.whitehouse.gov/agenda/civil_rights/) and low and behold he had many things to say regarding the Lesbian, Gay, Bisexual, and Transgender (LGBT) community.

To begin, in big bold print, the website advocates support for the LGBT community. The website also quotes Obama from June of 2007 in which he said “_While we have come a long way since the Stonewall riots in 1969, we still have a ...

Although the advertising efforts of supporters of Proposition 8 successfully captivated the attention of a large audience, their contentions were, at best, misleading. How did they manage to sway enough undecided voters to actually pass the proposition?

Proponents of Proposition 8 argued the constitutional amendment would protect children from being taught the virtues of gay and lesbian matrimony in their education programs. Supporters feared the state might force teachers to define and instruct marriage as between “any two persons” rather than between a man and a woman.

Opponents of Proposition 8 spent a lot of time defending against the Proponents ...

The campaigns for and against Proposition 8 raised $35.8 million and $37.6 million, respectively, becoming the highest-funded campaign on any state ballot that day and surpassing every campaign in the country in spending except the presidential contest. Now that Proposition 8 has passed, the pending legal issue is whether approximately 18,000 same-sex marriages already in effect would be retroactively annulled by the constitutional change, or whether they would be preserved. California Attorney General Jerry Brown said that existing same-sex marriages would be unaffected, but other legal experts have said challenges are likely. The 14-word constitutional amendment does ...