Jeffrey Toobin: Prop 8 is likely not going to be overturned by the courts

[TeamJordan23]

He said the arguments to overturn it are a long shot. That is quite unfortunate to hear really. But he and Hillary Rosen both stated that this issue is a generational argument. It is only a matter of time when gay marraige will be back in the amendment. And in the future, gay marriage rights will pass because all the younger people are for them.

Roland Martin did not look too happy discussing the matter; as he is strongly for the ban.

[kevinbgoode]

1. Fine..so did they suggest who else's constitutional rights we can vote out next?

I mean, after all, since they've apparently agreed that essentially the Constitution of the State of California is a worthless piece of paper for the gay community.

[Ediacara]

8. Mormons

I mean fight fire with fire right?

[Metric System]

2. Roland Martin is really pissing me off. He looks so damn defiant.

[EffieBlack]

20. How does one "look defiant?"

I watched it and he looked to me like he was just analyzing an election result.

[Metric System]

21. I've been watching at different points today during CNN and it's very clear how he feels about this

issue.

[EffieBlack]

26. But you still haven't explained what you mean by "looking defiant."

[Metric System]

28. I've seen Martin A LOT over the last number of months and when he was discussing this issue I sensed

his demeanor was different from what I normally see from him. I don't even know if that makes sense, but it's what I felt while watching him. Maybe defensive is the better description than defiant.

[sakabatou]

3. All the arguments I've heard for Prop 8

always were like those who were for anti-miscegenation laws.

[bigwillq]

4. Black people, or any other group

that is considered the "minority", who don't support gay marriage or equal rights for all people really need to shut the fuck up. :mad: Hypocrites. :mad:

[EffieBlack]

23. Shut the fuck up about what?

If a black person doesn't support gay marriage, they must be silent about everything else?

Did you tell white women who voted overwhelmingly for the anti-affirmative action measure in Michigan a couple of years ago to "shut the fuck up?"

I find it very interesting that black voters are being singled out for blame for the passage of this measure - even though the proposal would have passed without them when I don't see similar attacks against other groups - especially white women - when they vote against other civil rights measures. And I didn't see any polls taken measuring whether and to what degree the gay community supported or opposed this attack on affirmative action. For some reason, black voters are expected to support everyone else's civil rights - and attacked as bigoted hypocrites when they don't - yet other groups are all-too-often awol when it comes to stepping up to protect the rights of racial minorities.

I'm not defending those African Americans - or anyone else - who voted for Prop 8. But the over-the-top scapegoating of black voters for the passage of this measure is very troubling, as is the nasty, hateful tone of your attack. I don't agree with those who voted yes and I wish more blacks had opposed the ban. But telling black people who have a different perspective than you do about this to "shut the fuck up" is not an effective or helpful way to convince people to come over to your side.

[bigwillq]

45. Any group who has been oppressed in the past

but yet votes against, or speaks out against equal rights, should reconsider some of their views. I find it troubling that these groups want rights for themselves but vote against similar rights for other people. I was a bit angry last night, and reading my post again this morning, I can see where you say there is a hateful tone to it. I agree that is not the most effective approach. I am just angry that gays are still the most discriminated group of people left in this country.

[kwenu]

5. He's probably right. I think the interpretation will rest solely on the California constitution.

However, it's certainly worth a shot to invoke the federal constitution but it is a longshot. Marriage is a state matter.

[Phredicles]

10. Will it be any less of a longshot after Obama's had time to appoint some

judges, especially on the Supreme Court?

[kwenu]

18. Honestly? No. It won't be any less of a longshot.

The California Supreme Court is the final interpreter of California's Constitution. The best shot is with them not the SCOTUS.

[Phredicles]

22. But what if Califonia's constitution is at odds with the US one?

My (half-baked - I'm not a lawyer) theory is that Prop. 8 violates the 1st (establishment of religion) and 14th (equal protection under the law) amendments. If the CA courts won't remedy this, does it not fall to the federal courts to do so?

[kwenu]

41. There's a big difference between a constitution and a statute. The argument is worth a shot though.

I'm just going to hope for the best. I'm very supportive of civil rights for everyone.

[No Elephants]

38. But equal rights is both a state and a federal concern. Marriage is not the

issue here. The state still gets to say who can perform marriages, what constitutes a marriage, what legal rights and obligations do and do not attach to marriage. However, it has to give all consenting adults the same legal right to marry.

[kwenu]

42. That's a new (albeit just) interpretation. I hope it prevails.

[Ecumenist]

6. I voted AGAINST prop 8 because for one, I am an AA woman and

I am a married to a white man,( Texan Bohemian Czech). I am VERY aware tht its a slippery slope to come of these so called marraige advaocates suddenly deciding that my marriage and the millions like me are acting against the law. Anti-Miscegenation statues were on the books here in California until 1972. It's not a big stretch for the Klannish types to take the sanctity and legality of my marriage away.

[billyoc]

7. Apparently Roland Martin has all the civil rights HE needs.

So I guess WE don't need a Civil Rights movement anymore.

[grantcart]

9. that will definitely leave a bruise

[JI7]

11. did Roland Martin say he is for the ban ?

[billyoc]

12. Yeah, he's some kind of Sky Pilot, a recent divinity school grad, from Texas, no less!

[Jennicut]

13. This sucks but in CT we shot down the ability to amend our constituion so gay marriage will stand

in CT. I don't get Roland Martin at all, if you are for one group's rights you are for all. I think it is a cultural thing in the AA community-to have to be "macho" and gays are looked down on as being too soft in a community where life is rougher in general because of growing up in the cities. Its sad but true. Hispanics as well have religion influencing them against gay marriage. I guess in CT and Mass we just don't have certain influences in the population as a whole, smaller states too. I am proud of my state right now but bummed out about CA.

[CTLawGuy]

39. remember too

New England has the lowest % of fundies in the nation. Which is why I like it here so much.

[A-Schwarzenegger]

14. KEEP in MIND: Roland Martin voted for both Bush I & II.

He stated as much election night.

[JI7]

16. i didn't know that, i view him in a completely different way now

[A-Schwarzenegger]

19. Yep.

[TexasObserver]

15. Toobin is usually right about legal matters. Seldom wrong.

Roland Martin's wife is a pastor, and he's got that old time religion, himself.


I cannot believe humans in the 21st century invoke the ancient health and social mores of goat herders from 3000 years ago.

[johnaries]

17. 2 words. Bull. Shit.

It is not a "generational" argument, it is a Constitutional argument.

They can amend the state constitution if they want, but it is in violation of the US Constitution. It is the same as anti-miscegenation laws declared unConstitutional under Loving vs Virginia, and any attempt at "civil unions" is the the same as "separate but equal" which was declared unConstitutional under Brown vs Board of Education. Race or Gender, it does not matter.

[EffieBlack]

24. He's right

And the California State Supreme Court is unlikely to rule that the ban violates the U.S. Constitution when the U.S. Supreme Court has not spoken on it.

Toobin is right.

[regnaD kciN]

30. I think that's correct -- you'd need a federal court decision...

The main issue, as I mentioned earlier, is: should the matter go to a federal district court, and get a ruling that Prop8 is unconstitutional, will the the case be appealed to the SCOTUS, or would Governator Ahnuld and Attorney General Moonbeam (neither of whom was a supporter of the proposition) decide not to appeal the lower court decision any further? As far as I know, if the case is brought against the state of California, only the state can decide whether to appeal such a decision.

[donheld]

33. Look at Colorado's Amendment 2

[SweetieD]

36. The Loving arguments for gay marraige have failed before. I think Toobin is right.

This can go through the court system but I don't see it being overturned on federal constitutional grounds.

[regnaD kciN]

25. "Only a matter of time..."

That's probably right. But what kind of answer is that for current GLBT couples, to be told not to worry, that their side will prevail thirty or forty years from now?

:shrug:

[AnnitaR]

27. Got into argument today with co-worker about Prop 8.

Typical stuff... he was saying how according the bible being gay is a sin - saying that for that reason alone gays should not be able to marry & destroy the sanctity of marriage.

I asked him that since according to the bible having sex before marriage was a sin too did that mean he wanted laws passed to prevent people from having sex before marriage. (Keep in mind this is a guy who screws around all the time!) He had absolutely no response.

Never get tired of making fundies twist in the wind trying to justify their constant picking & choosing what parts of their bible they want to live by. Such hypocrites!

I hope our GLBT friends keep fighting for their Civil Rights! I support them every step of the way!

[Guaranteed]

29. He's wrong.

They'll overturn it. Watch.

[Pithlet]

31. The problem is California lets their voters amend their constitution with a popular vote.

The California Supreme Court probably isn't going to overturn that, because it's how things are done in CA. If it goes on the ballot, and the voters vote the amendment in, in it goes, no matter how loathsome, as long as it doesn't revise the constitution or contradict it. It's screwed up, but that's how it works. They can't rule it unconstitutional because it's in their constitution now, thanks to prop 8. It's totally screwed up. It's not because they agree with it. Their hands are tied. Federal courts will have to step in now. The only way CSC will probably overturn it now is if they rule that it should never have gone to a vote in the first place because it revises the constitution rather than amends it. Even though it clearly contradicts their Constitution and revises it, It's probably still a longshot because they already shot that down before the initiative even went on the ballot. The CSC allowed it to go forward. I'm really worried, because I see people think that the CSC will easily just overturn this. I think Toobin is right, unfortunately. It doesn't mean we give up, though. California has a screwed up way of doing things, and this is the screwed up result of it, but it can be undone. It just likely won't won't be with a quick flip of the wrist by the CSC. It's going to be a longer, tougher battle than that, thanks to the bigots that voted this in. I really hope I'm wrong. I honestly thought prop 8 would fail to being with, and I was wrong there, so I guess that's why I'm being too cautious here.

[Captiosus]

32. I'd rather have the 'screwed up' California method.

Here's why: At least in the California method, when people decide that they really screwed up, they can fix the screw up with a new proposition.

In Virginia, the General Assembly has twice passed legislation banning gay marriage, and later banning civil unions and benefits to out of state couples in a civil union or gay marriage. The only way this will ever be overturned is either through legal challenge or if the General Assembly decides to change the law. The average people have no damn say.

In that regard, I'd rather have the ability to vote on something myself. There are some issues, equal rights being one of them, where relying solely on a couple of people from large "districts" doesn't do the issue justice.

The downside is, as you point out, the penchant for injustice. But at least the public can bring the issue up again without having to HOPE your Representatives do it for you.

[Pithlet]

35. It's a very bad way to make law.

The rights of the minority aren't protected under such a system. All it takes for a law to pass is for those with might to get a law on the ballot, and for the majority to push it through. California's Supreme Court had already ruled that Gay Marriage was legal. So they did a run around with the ballot initiative. The minorities' rights were protected under the courts, but trampled under the tyranny of the majority.

There are no checks and balances of a legislative system with ballot initiatives. Prop 8 is a perfect example of that. There's no guarantee a new prop is going to fix it. We can only hope it will. Who knows if a new, richer, more powerful church or other powerful entity isn't going to be able to pump even more money and confuzzle even more people into voting the next one down? Fuel more flames of hate and bigotry? Make sure the minorities' rights continue to get trampled? That's why such a system is bad.

You do have a say. You voted those legislators in. You can vote them out. I know they may not be the ones you personally wanted to vote in, and the wheels of the system may turn a little slowly. But if that's the legislators you got, then it's likely any ballot initiative for gay marriage likely would have gone the same way. Only then you might also get some even nastier ballot initiatives that get pushed through by some really evil forces. And your legislatures won't be able to do a thing about it. And you'll be stuck with those bad laws that the tyranny of the majority voted through. It's not perfect, but believe me, you're better protected, even if you're living in a state that's overall a little more conservative than your own personal views. Look, I live in Tennesee. It doesn't get much worse than that. I can only imagine what kind of crap would get passed if we had ballot initiatives. My kids would be praying 3 times a day in their public school, before opening their creation bible books teaching about humans riding the dinosaurs, I'm sure.

[endthewar]

34. Agreed. Californians reap what they sow.

Why is it that you can always count on California to have controversial social issues on the ballot each election?

[ej510]

37. If it's not overturned it will be on the ballot in 2010.

[moobu2]

40. I think Jeffrey Toobin is wrong about this

First of all, I don’t think the fact that the court allowed prop 8 to go in the ballot
Means that the court will find the result constitutional. It just means that they didn’t want to get involved in the public debate at that point. Now though that the amendment passed, it’s a different matter.

Prop 8 conflicts with the California constitution itself.


I think Gloria Allred's got a good case.

[Jersey Devil]

43. Can't determine that one way or the other without seeing the ruling

I think before you can draw the conclusion you made we'd have to examine the ruling that was made by the court prior to the election.

[CrownPrinceBandar]

44. Sit on it and spin, Toobin!.........

Oh, and fuck Roland Martin too!

[MarjorieG]

46. Obama could not sacrifice the his ethnic vote, also against 8. But has lectured in black churches...

That hands not clean on this civil rights issue. (ie Father's Day speech, etc) I hope he continues to speak out in ways he can.

[Jersey Devil]

47. The amendment vs revision argument has not been ruled on by the court

As I understand it, the argument against Prop 8 is this: Cali law allows the constitution to be amended by majority vote of the legislature placing it on the ballot but if it is a "revision" of the constitution (something that changes items already covered by the constitution) it requires a 2/3 vote of the legislature to place it on the ballot.

Several posters have stated that it will not be overturned because the court ruled on Prop 8 and ordered it to remain on the ballot even though those same arguments were made in the law suit to prevent it from being on the ballot that was dismissed by the Cali Supreme Court.

However, as far as I have been able to determine, in dismissing the suit to take Prop 8 off the ballot, the court issued no opinion and ruled without comment:

"The court, meeting at its regular weekly conference, denied the petition without comment in a brief order."
http://articles.latimes.com/2008/jul/17/local/me-gaymarriage17

Therefore, stating that the court has already ruled on that issue is pure speculation because no one really knows why they dismissed the law suit. It could be for those reasons or it could be reasons that have nothing to do with the amendment vs revision argument.