Gay Marriage Heads To Court

[Cannikin]

Posted: February 17, 2004 12:01 a.m. ET
(San Francisco, California) Lawyers for two conservative groups will be in two separate courtrooms today trying to put a halt to San Francisco's gay marriages.

In legal papers submitted late Monday, the Alliance Defense Fund and the Campaign for California Families say San Francisco mayor Gavin Newsom overstepped his bounds in directing that same-sex couples be allowed marriage licenses.

Friday Judge James L. Warren ruled that the anti-gay crusade had failed to present convincing evidence that there would be irreparable harm from same-sex marriages. (story) Warren scheduled a hearing for 11 a.m. today to hear arguments on both sides of the issue.

No matter which side wins the issue will not end in a San Francisco court. Both sides say that if they are turned down they are prepared to appeal to the California Supreme Court.
http://www.365gay.com/newscon04/02/021704sfCourt.htm

[BayCityProgressive]

1. How liberal is the Supreme court?

is there a chance they would rule in favor of gay marriage? What are our prospects in other liberal states like New York, Maine, or Hawaii?

[Cannikin]

2. I think the prospects are good, but...

The president will head them off with the Marriage amendment before they have a chance.

[yellowcanine]

3. Fortunately, the president can't amend the constitution

He plays no role except for influence and he needs "political capital" for that, much of which has been squandered on the quagmire of Iraq, his immigration proposal, the exploding deficit, and the trainwreck of medicare "reform".

[murielm99]

4. The marriage amendment would take a long time.

A Constitutional amendment must first be proposed, then ratified. It can be proposed by passage in the House and Senate with a two-thirds vote, or by passage in a national convention called by Congress in response to petitions by two-thirds of the state legislatures.

Congress then chooses the method of ratification, which can be either by vote in the legislatures of three fourths of the states, or by vote in conventions called for that purpose by three fourths of the states.

The method involving proposal and a two-thirds vote of Congress and ratification by three-quarters of the legislatures has been used for all amendments except one. The twenty first amendment's repeal of prohibition used state ratifying conventions, because Congress was afraid the southern Bible Belt state legislatures would vote against repeal.

The national convention method has never been used. I cannot imagine it working for a marriage amendment.

Congress decides how much time is allowed to consider each amendment. They have used seven years. The equal rights amendment did not pass, because at the end of seven years, thirty-five state legislatures had ratified, three short of what was needed. Also, five states voted to rescind their earlier ratification. But there was some disagreement about whether rescinding is even possible, depending on how the Constitution is interpreted.

I think we have to work hard at the state level to see that this does not become a reality. I think, given the time and effort it takes, it could be defeated.

Also, can an amendment be deemed unconstitutional, even if it passes? We are entering new territory here. I don't think shrub and his minions will be in power long enough to bring this about. The winds of change are blowing.

[yellowcanine]

5. No an amendment can only be repealed by another amendment.

A duly ratified amendment IS the constitution and thus it takes another amendment undo it. (what happened when the 21st amendment repealed the 18th amendment on prohibition of alcohol)

The only place the SCOTUS would get involved would be in ruling on the legitimacy of the ratification process itself - for example, I don't believe the question of whether a subsequent state legislature can undo the ratification vote of a previous legislature has ever been tested - that would certainly be a SCOTUS case if it came up. In the case ot the ERA it didn't come up because not enough states ratified, even with the ones that overturned the ratification.

On your point about whether shrub and his minions could pull this off - I don't think so either. The country is divided too closely on this issue. Depending on how the question is asked, polls show a majority opposing same sex marriage or a majority not opposed. I don't think they will get a 2/3 vote in either house in favor of an amendment. But they could use the issue to beat up on Dems in conservative districts, which I think they will try to do. Of course it will cut both ways and overall I think it would hurt the reelection chances of Bush because it portray him as pushing a divisive agenda , which of course is what he is doing.