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Author Topic: Calif. gov.: 'We will maybe undo' Prop 8  (Read 98830 times)
Matthew Carberry
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Fiat justitia, pereat mundus


« Reply #275 on: November 16, 2008, 11:00:19 AM »

Strings,

The only justification for limiting marriage to "two people" under the law rests on the dominant Western tradition of marriage being "two persons, one man, one woman, not related".

If that traditional basis is determined to be insufficient to justify the "man and woman" part, it will be equally deficient to determine the "only two people" and "not related" parts.

What arbitrary, yet rational and legally defensible, reason will we be able to come up with to legally justify denying a legal marraige to more than two persons or to blood relations under equal protection theory?

We can't really use "genetic risks to children" as, by allowing couples physically incapable (not just unwilling or unable for exceptional reasons) to produce children with each other to marry, we are stating there is no "sexual activity resulting in progeny" assumed anymore by the term "marriage".

So now the tie to the little remaining biological basis for preventing sibling marriage is gone.

For that matter, if two unrelated men can marry, why not two brothers? Why should they be denied the same legal privileges?

Why not MFF (for example) "couples"?

What will be the legal defense of that position?

That's an unintended consequence of removing tradition as a basis for law on this issue, there's nothing left to base any restrictions on that aren't absolutely arbitrary and challengeable by law.

Marriage will survive as a private thing between people who love each other, but I can't see the state eventually remaining involved in any way other than providing civil courts to adjudicate private contractual arrangements.
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MicroBalrog
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« Reply #276 on: November 18, 2008, 08:40:06 AM »

Quote
What arbitrary, yet rational and legally defensible, reason will we be able to come up with to legally justify denying a legal marraige to more than two persons or to blood relations under equal protection theory?

Consent?

Remember, we believe (with some justification) that some types of incestuous relationship are inherently unconsensual. Further, damage to a third party (a child) is also a concern.

However, as you correctly suggested, I see no reason to deny recognition to a polygamous marriage contract, a marriage of two sisters, or a sister and a brother that are sterile, or a Heinleinian line marriage.

Quote
Marriage will survive as a private thing between people who love each other, but I can't see the state eventually remaining involved in any way other than providing civil courts to adjudicate private contractual arrangements.

Yes, this is a very good thing.
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Manedwolf
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« Reply #277 on: November 18, 2008, 08:46:56 AM »

However, as you correctly suggested, I see no reason to deny recognition to a polygamous marriage contract, a marriage of two sisters, or a sister and a brother that are sterile, or a Heinleinian line marriage.

Seriously, dude...EW! Tongue
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makattak
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« Reply #278 on: November 18, 2008, 08:47:53 AM »

Consent?

Remember, we believe (with some justification) that some types of incestuous relationship are inherently unconsensual. Further, damage to a third party (a child) is also a concern.

However, as you correctly suggested, I see no reason to deny recognition to a polygamous marriage contract, a marriage of two sisters, or a sister and a brother that are sterile, or a Heinleinian line marriage.

Yes, this is a very good thing.


Damage to the third party can occur from more than simply birth defects- their may be upbringing defects as well.

As you see the logic in preventing a birth that could result in a deformed child, can you not see the logic from those of us who would protect a child from an upbringing that could result in damage?
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MicroBalrog
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« Reply #279 on: November 18, 2008, 09:48:10 AM »



As you see the logic in preventing a birth that could result in a deformed child, can you not see the logic from those of us who would protect a child from an upbringing that could result in damage?

I am all for banning child abuse if that's what you mean. There are great moral problems with banning more than that.

There are people who believe homeschooling is a form of child abuse. Homeschooling was illegal in several states until recently. Still illegal in some places in Europe.

There are people - I've met some - who believe growing up in a religious family is inherently abusive.

There are people who believe that growing up in a single-parent household is inherently abusive. Really, they exist.

Do you think we should take the children away from a mother if the father divorces her for some reason?

Seriously, how much interference should the government have in this?

Also, there are other questions.

I've read quotes from a German trial where the fact a daughter shared her parent's political beliefs was held up to be proof she was 'brainwashed' by her family.

If a lesbian woman gets artificial insemination, and her daughter ends up being a lesbian too, is that a form of abuse?

There's a difference between saying: "You're abusing the child - here, he has welts and a fractured arm, or is inadequately fed, and so forth" and saying "We want our children to all be like this, so we'll go in and legislatively define anything that's not like that as 'abuse'."

Where do we draw the line?
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Matthew Carberry
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« Reply #280 on: November 18, 2008, 10:00:00 AM »

Quote
Where do we draw the line?

Great point to always remember when talking about restricting anything.

If we don't have documentation that something will cause harm, in this country, to follow our founding principles, we don't legislate it.

After all, legal private gun ownership can, and actually does occasionally, cause harm that could definitely be avoided if it were banned.

Yet we don't see those few, real dangers of harm as sufficient legal (not "moral", not distaste driven) justification to restrict it.

There are some very real and salient larger principles at play, which is why marriage wasn't and shouldn't be a Constitutional issue at the Federal level.
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makattak
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« Reply #281 on: November 18, 2008, 10:17:49 AM »

I am all for banning child abuse if that's what you mean. There are great moral problems with banning more than that.

There are people who believe homeschooling is a form of child abuse. Homeschooling was illegal in several states until recently. Still illegal in some places in Europe.

There are people - I've met some - who believe growing up in a religious family is inherently abusive.

There are people who believe that growing up in a single-parent household is inherently abusive. Really, they exist.

Do you think we should take the children away from a mother if the father divorces her for some reason?

Seriously, how much interference should the government have in this?

Also, there are other questions.

I've read quotes from a German trial where the fact a daughter shared her parent's political beliefs was held up to be proof she was 'brainwashed' by her family.

If a lesbian woman gets artificial insemination, and her daughter ends up being a lesbian too, is that a form of abuse?

There's a difference between saying: "You're abusing the child - here, he has welts and a fractured arm, or is inadequately fed, and so forth" and saying "We want our children to all be like this, so we'll go in and legislatively define anything that's not like that as 'abuse'."

Where do we draw the line?

And there is a difference between taking someone's child from a place where you think abuse might happen and PUTTING a child in a place where abuse might happen.

I am here talking about adoptions: we can PLACE a child in a circumstance where he may grow up in damaging circumstances once the gay rights groups have insisted that they cannot be discriminated against with regards to adoption either.

We are damaging a third party without his consent because we want to experiment with what will work for parenting. We are PLACING a child in a situation where he has a higher risk of growing up... well, badly.

We should take children from their rightful parents only under the most extreme circumstances. We should NEVER put children in a circumstance where they "are at a dramatically greater risk of drug and alcohol abuse, mental illness, suicide, poor educational performance, teen pregnancy, and criminality."

Surely you can see the difference between removing a child and placing a child in such a situation?
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« Reply #282 on: November 18, 2008, 11:56:22 AM »

Some of this could be resolved by doing away with inheritance tax, which would seem like it should be a popular suggestion on this board.

The two sisters in this country only wanted to be able to leave their property inheritance tax free to the other on the event of one of them dying so to prevent the taxman insisting that tax be paid there and then and forcing the sale of a property they lived in together, and if I recall correctly, grew up in.

That's all they wanted, and if I'm still living with my brother in however many years and we own something between us, that's all I'd want to be able to do. It's the tax benefits that would cause this rather silly sister-sister marriage possibility, and that seems resolvable without denying legal status to homosexual couples (without necessarily calling it marriage).
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Strings
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« Reply #283 on: November 18, 2008, 12:27:31 PM »

OK... I'm with Micro: "the line" is consent. Which eliminates the argument of people marrying animals or children.

 As for this:

>And there is a difference between taking someone's child from a place where you think abuse might happen and PUTTING a child in a place where abuse might happen.<

 Cool. So I shouldn't let any straights watch my (hypothetical) children, since almost every case of abuse I'm aware of has been perpetrated by a heterosexual person?

>I am here talking about adoptions: we can PLACE a child in a circumstance where he may grow up in damaging circumstances once the gay rights groups have insisted that they cannot be discriminated against with regards to adoption either.

We are damaging a third party without his consent because we want to experiment with what will work for parenting. We are PLACING a child in a situation where he has a higher risk of growing up... well, badly.<

Say what you mean here: where they might grow up with a viewpoint different than yours.

>We should take children from their rightful parents only under the most extreme circumstances. We should NEVER put children in a circumstance where they "are at a dramatically greater risk of drug and alcohol abuse, mental illness, suicide, poor educational performance, teen pregnancy, and criminality."<

Which, I do believe, is something that should be addressed in the process of adoption. However, that is NOT something you can base on someone's sexual preference...
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« Reply #284 on: November 18, 2008, 01:36:07 PM »

OK... I'm with Micro: "the line" is consent. Which eliminates the argument of people marrying animals or children.

 As for this:

>And there is a difference between taking someone's child from a place where you think abuse might happen and PUTTING a child in a place where abuse might happen.<

 Cool. So I shouldn't let any straights watch my (hypothetical) children, since almost every case of abuse I'm aware of has been perpetrated by a heterosexual person?

Nice category error.

>I am here talking about adoptions: we can PLACE a child in a circumstance where he may grow up in damaging circumstances once the gay rights groups have insisted that they cannot be discriminated against with regards to adoption either.

We are damaging a third party without his consent because we want to experiment with what will work for parenting. We are PLACING a child in a situation where he has a higher risk of growing up... well, badly.<

Say what you mean here: where they might grow up with a viewpoint different than yours.

Uh, the data show that kids brought up in such environments have worse outcomes than the population of kids as a whole and the population of kids adopted by a real family.

Viewpoint has nothing to do with it.

>We should take children from their rightful parents only under the most extreme circumstances. We should NEVER put children in a circumstance where they "are at a dramatically greater risk of drug and alcohol abuse, mental illness, suicide, poor educational performance, teen pregnancy, and criminality."<

Which, I do believe, is something that should be addressed in the process of adoption. However, that is NOT something you can base on someone's sexual preference...

I would include not only homosexual couples, but unmarried hetero couples or singles of any orientation.  Children adopted by all mentioned have a much greater chance for a bad outcome than when adopted by and raised in a real family.



The point mak is making (and that you are studiously avoiding) is that, in the case of adoption, the state has an obligation to the child to find the best home possible for the child.  It has NO obligation to any particular prospective adoptive family.  And it surely has no obligation to fulfill the desires of a homosexual couple desirous of raising children.  When it comes to the welfare of wards of the state...They.  Don't.  Matter.  There is no right to adoption.  There is no right to raise children not your own.

The homosexual marriage and homosexual adoption issues are examples of government action to fulfill the desires of a small minority.

It is the left-libertarianism of using gov't to fulfill one's desires, overturn tradition, and thwart the will of the citizenry.  It is the antithesis of suspicion of the arbitrary use of gov't power, the marketplace of ideas, and equal treatment.
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MicroBalrog
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« Reply #285 on: November 18, 2008, 07:04:32 PM »

Quote
here is no right to adoption.  There is no right to raise children not your own.

That is correct. Nobody argues this.

However, that said, individual human beings are not statistics. Have you read 'Theory and History'?

The proper role of an adoption authority is to evaluate every couple that applies to adopt children on an individual basis. I hope you shall agree that it is irrelevant that the majority of heterosexual married couples are okay to adopt children, if the particular family in question has a wino father that has no job, and a bipolar mother. Sure, the majority of couples are okay, but THIS COUPLE isn't.

In an equal manner, though it is possible (I say possible because I've not seen the numbers or looked into them in any detail) that [say] 90% of gay families take drugs [I am not saying 90% of gays take drugs, I'm just using a hypothethical], it does not mean all gays should automatically be precluded from adopting babies.

Regardless of this, gay marriage is not automatically connected to the adoption of children, as you well know, just as straight marriage is not automatically connected to it.
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« Reply #286 on: November 19, 2008, 09:14:37 PM »

And it continues...

http://www.foxnews.com/story/0,2933,454945,00.html

California Supreme Court to Hear Gay Marriage Ban Challenges

SAN FRANCISCO Ś  California's highest court agreed Wednesday to hear several legal challenges to the state's new ban on same-sex marriage but refused to allow gay couples to resume marrying before it rules.

The California Supreme Court accepted three lawsuits seeking to nullify Proposition 8, a voter-approved constitutional amendment that overruled the court's decision in May that legalized gay marriage.

All three cases claim the measure abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.

As is its custom when it takes up cases, the court did not elaborate on its decision.

Along with the gay rights groups and local governments petitioning to overturn the ban, the measure's sponsors and Attorney General Jerry Brown had urged the Supreme Court to consider whether
Proposition 8 passes legal muster.

The court directed Brown and lawyers for the Yes on 8 campaign to submit their arguments for why the ballot initiative should not be nullified by Dec. 19. It said lawyers for the plaintiffs,
who include same-sex couples who did not wed before the election, must respond before Jan. 5. Oral arguments could be scheduled as early as March, according to court spokeswoman Lynn Holton.

Both opponents and supporters of Proposition 8 expressed confidence Wednesday that their arguments would prevail.

But they also agreed that the cases present the court's seven justices Ś six of whom voted to review the challenges Ś with complex questions that have few precedents in state case law.
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« Reply #287 on: November 29, 2008, 04:13:57 AM »

I would include not only homosexual couples, but unmarried hetero couples or singles of any orientation.  Children adopted by all mentioned have a much greater chance for a bad outcome than when adopted by and raised in a real family.

Why not go all the way and say only white, upper-middle-class families in which each parent comes from a specific background?  After all, anything less would be shortchanging the kid, wouldn't it?

Quote
It is the left-libertarianism of using gov't to fulfill one's desires, overturn tradition, and thwart the will of the citizenry.

The will of the citizenry has been pretty clearly stated.  What remains to be seen is whether it is in keeping with the process for amending and/or revising the state's constitution, and whether it is even an appropriate subject for a constitution to deal with.

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grey54956
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« Reply #288 on: November 29, 2008, 07:17:50 AM »

Personally, I believe that gov't should get out of the marriage business altogether, based on separation of church and state, with marriage being a mostly religious tradition.  Property, residence, and divorce can all be addressed with legally binding contracts.  Of course, to make it work, we need to get rid of Inheritence Tax.

That being said, if the people have spoken, then they have spoken.  Let the gay marriage advocates work at repealing the amendment with another amendment.
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roo_ster
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« Reply #289 on: November 29, 2008, 08:44:27 PM »

Why not go all the way and say only white, upper-middle-class families in which each parent comes from a specific background?  After all, anything less would be shortchanging the kid, wouldn't it?

Nice Race Card, Al (Sharpton).  Next time you post, try not to leave a slime trail.

As to financial means, I have no problem with requiring a certain level.  After all, if the gov't requires some proof of financial means when it makes a FHA loan and gives over a chunk of change, to do any less when the gov't gives over a person seems a severe case of misplaced priorities.
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roo_ster

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MicroBalrog
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« Reply #290 on: November 30, 2008, 07:49:28 AM »

Quote
As to financial means, I have no problem with requiring a certain level.  After all, if the gov't requires some proof of financial means when it makes a FHA loan and gives over a chunk of change, to do any less when the gov't gives over a person seems a severe case of misplaced priorities.

Generally, statistics are not an appropriate tool to use with an adoption process.
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« Reply #291 on: November 30, 2008, 09:01:06 AM »

Generally, statistics are not an appropriate tool to use with an adoption process.

No, but they are an appropriate tool to use in setting guidelines or regulations for any process. Are you suggesting that the adoption process should have no guidelines or regulations and that each case should be handled solely on an individual basis?
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« Reply #292 on: November 30, 2008, 09:37:00 AM »

Quote
California Supreme Court to Hear Gay Marriage Ban Challenges

SAN FRANCISCO —  California's highest court agreed Wednesday to hear several legal challenges to the state's new ban on same-sex marriage but refused to allow gay couples to resume marrying before it rules.

I do hope they care for their position as judge.  They made enough citzens mad when they overturned the first "one man one woman" law to pass it again.  If they overturn it again, they will probably be facing efforts to throw them out of office.
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MicroBalrog
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« Reply #293 on: November 30, 2008, 06:56:41 PM »

No, but they are an appropriate tool to use in setting guidelines or regulations for any process. Are you suggesting that the adoption process should have no guidelines or regulations and that each case should be handled solely on an individual basis?

I am suggesting that we should not bar entire swaths of the population from adopting based on their social background or sexual orientation. While the decision ought to be informed (for example) by the fact that gays are statistically more likely to engage in risky behavior than non-gays, they should still be allowed to adopt if the particular couple involved does not engage in such behavior. In a similar manner, though non-gays are less likely to engage in such behaviors, we would never consider letting a given couple adopt a child if the particular couple involved had, say, a history of child abuse.
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« Reply #294 on: November 30, 2008, 11:36:25 PM »

Longest thread ever?

I would like to say that I am glad to see that this has managed to remain civil,  smiley I figured that this would of been locked LONG ago, and hopefully it stays open for a long time so as to be able to keep on with this interesting and informative conversation.
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« Reply #295 on: December 01, 2008, 03:51:32 PM »


http://taxprof.typepad.com/taxprof_blog/2008/11/groups-seek-revocation.html

Activists Seek Revocation of Tax Exempt Status of Churches That Supported Prop 8

San Francisco Chronicle: Tax-Exempt Benefit Disputed in Prop. 8 Campaign, by Matthai Kuruvila:

Quote
    In the wake of Proposition 8's passage, opponents are railing that churches that supported the ballot measure violated their tax-exempt status.

    It's a common accusation at the now-weekly protests, gaining enough traction that Geoff Kors, a member of the No on 8 executive committee, said lawyers are investigating the issue. "The Mormon church overstepped its boundaries by being a tax-exempt organization," said Sharone Negev, 54, of San Francisco, who has gone to protests in San Francisco and the Mormon temple in Oakland. "They clearly are not supposed to be involved in political activities."

    But interviews with experts and activists on the issue say Prop. 8 opponents should look elsewhere for reasons to criticize the measure's supporters. "They almost certainly have not violated their tax exemption," said Barry Lynn, executive director of Americans United for the Separation of Church and State, the leading advocacy organization on the issue. "While the tax code has a zero tolerance for endorsements of candidates, the tax code gives wide latitude for churches to engage in discussions of policy matters and moral questions, including when posed as initiatives."
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« Reply #296 on: December 02, 2008, 11:18:36 AM »

I do hope they care for their position as judge.  They made enough citzens mad when they overturned the first "one man one woman" law to pass it again.  If they overturn it again, they will probably be facing efforts to throw them out of office.

And I think that that action would be proper under the circumstances.  It'd show that the supreme court holds the constitution of their state in contempt.

Quote
They argue that voters alone did not have the authority to enact such a significant constitutional change.

The will of the people, it does not count!

Seriously, just like the US Constitution, the California constitution has rules for amending it:
Quote
CALIFORNIA CONSTITUTION
ARTICLE 18  AMENDING AND REVISING THE CONSTITUTION

SEC. 1.  The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal.  Each amendment shall be so prepared and submitted that it can be voted on separately.

CALIFORNIA CONSTITUTION
ARTICLE 18  AMENDING AND REVISING THE CONSTITUTION

SEC. 2.  The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution. If the majority vote yes on that question, within 6 months the Legislature shall provide for the convention. Delegates to a constitutional convention shall be voters elected from districts as nearly equal in population as may be practicable.

CALIFORNIA CONSTITUTION
ARTICLE 18  AMENDING AND REVISING THE CONSTITUTION

SEC. 3.  The electors may amend the Constitution by initiative.

CALIFORNIA CONSTITUTION
ARTICLE 18  AMENDING AND REVISING THE CONSTITUTION

SEC. 4.  A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.  If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.

I'll admit that section 3 is a bit sparse, still, Article 2 gives the rules for initiatives:

Quote
CALIFORNIA CONSTITUTION
ARTICLE 2  VOTING, INITIATIVE AND REFERENDUM, AND RECALL

SEC. 8.  (a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.
   (b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the
proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.
   (c) The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. The Governor may call a special statewide election for the measure.
   (d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.
   (e) An initiative measure may not include or exclude any political subdivision of the State from the application or effect of its provisions based upon approval or disapproval of the initiative measure, or based upon the casting of a specified percentage of votes in favor of the measure, by the electors of that political subdivision.
   (f) An initiative measure may not contain alternative or cumulative provisions wherein one or more of those provisions would
become law depending upon the casting of a specified percentage of votes for or against the measure.

Nothing in there specifies that a judge, or even the supreme court, has a choice in the matter.

Personally, I'm generally in favor of letting gays get married.  However, the people have spoken - rather loudly I think seeing as how this is the SECOND time they did this, going so far to elevate it from a law(that the court struck down) to a constitutional amendment.  Finally, to the gay marriage advocates - you screwed up and pushed too hard.  A law would have been much easier to repeal given time.  Heck, this should have been approached through legislative means in the first place - not judicial activism.
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« Reply #297 on: December 02, 2008, 11:20:47 AM »

http://taxprof.typepad.com/taxprof_blog/2008/11/groups-seek-revocation.html

Activists Seek Revocation of Tax Exempt Status of Churches That Supported Prop 8

San Francisco Chronicle: Tax-Exempt Benefit Disputed in Prop. 8 Campaign, by Matthai Kuruvila:


See, this is why tax-exempt status was folly.
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Desertdog
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« Reply #298 on: December 02, 2008, 01:15:34 PM »

Quote
SEC. 3.  The electors may amend the Constitution by initiative.

CALIFORNIA CONSTITUTION
ARTICLE 18  AMENDING AND REVISING THE CONSTITUTION

SEC. 4.  A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.

I was arguments that an amendment could pass by a majority, but a revision had to have a 2/3 vote.  I guess they were looking at some other states Constitution or maybe some foreign law.
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