I’ve seen enough polls flip at the only poll that counts in my day to be anything but cynical.

A lot of people think California is really liberal but outside two urban centers, it’s really not.

It’s just one poll, but the Field Poll is pretty highly regarded.

Presumably Fresno is a strongly anti-gay chunk of California. Let it secede, and the rest of California can has marriage equality.

Not true, unfortunately. The link I posted above allows you to click on each county to find out its vote on Prop. 22 which passed in a handful of counties solely in the Bay Area. There were some relatively close calls but turn your cursor towards those inland counties and click away.

It didn’t pass in the other highly populated coastal counties and there will be a snow flake’s chance in Hell before anything banning gay marriage or gay rights anything would fail to pass inland.

If you allowed all these areas to secede, California might just go from the state with the most electoral college votes to one with much, much fewer.

In my city, you couldn’t even put up anti-Prop. 22 signs without them getting ripped asunder.

You can theorize until the cows come home, but often what California should do, is anticipated to do is not what it does. Several organizations including one actually out of state have filed stays or plan to do so. It will be interesting to see what happens there.

I ran across an interesting legal opinion arguing that the constitutional amendment is too late, that because the court has declared marriage equality a fundamental right, that an amendment can’t strip a fundamental right. What would be required instead is a constitutional revision, which must be proposed by the legislature or by a constitutional convention, not by a ballot measure brought by petition.

I don’t have any idea whether that is actually a convincing argument or not. Apparently, it is not something that would prevent the measure from being on the ballot, but is something the courts would have to rule on if it is approved by voters.

In the 19650s and 60s California adopted fair housing laws design to outlaw racial discrimination in property sales and leases. Property rights advocates then drafted, promoted and passed a constitutional initiative re-establishing common-law property rights. But in Reitman v. Mulkey, the US Supreme Court struck the initiative down.

The rationale is tricky. No party disputed that the California legislature could have achieved the same legal outcome as the initiative simply by repealing the fair housing statutes, and no party argued that the legislature would have faced any constitutional impediments to doing so. But the Court appears to hold that the symbolic consequences of the voters’ actions violated the Fourteenth Amendment.

[T]he intent of [the initiative] was to authorize private racial discrimination in the housing market, . . . and to create a constitutional right to [discriminate].

* * *

[Private] discriminations in housing were not only free from [the fair housing acts] but the also enjoyed far different status than was true before the passage of those statutes. The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State’s basic charter . . . . Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority . . . .

The only legal distinction the Court specifies between rights “authorize[d]” or “create[d]” and those merely permitted is the ease with which they may be changed. The Court found no greater distinction between rights “embodied in the State’s basic charter” and those embodied in common law. It appears the Court was concerned not merely with rights, but with the legitimization of their exercise.

But an amendment that said “no gay marriage because it’s immoral” would be fine, even if the REASON people thought it was immoral was related to religion.

The City of Hialeah decision says otherwise.

http://www.smh.com.au/news/world/husbands-battle-to-take-wifes-surname/2008/05/06/1209839596100.html

FurryCatHerder Writes:
May 20th, 2008 at 5:41 am

Daran,

Something can be “religiously motivated”, but it must still have a secular purpose.

No, that’s not really true. Or, to the degree it is true, the purpose of “because I like it that way” is frequently good enough. There are a variety of exceptions that get applied to individual actions, but not to constitutional amendments.

IOW, if an anti-gay-marriage amendment is entered into the constitution successfully, I don’t think that the religious underpinnings of its supporters would provide any support for overturning it on 1st amendment grounds.

I suppose that an amendment which said “no gay marriage because it’s God’s will” would have problems. But an amendment that said “no gay marriage because it’s immoral” would be fine, even if the REASON people thought it was immoral was related to religion. You are permitted to vote and make laws based on your personal morality, and the State is not permitted to restrict you basedon the source of your morality.

And just to be precise, it’s not the utterance of prayers but the requirement to pray which is prohibited in State institutions such as public schools.

Again, it’s a lot more complicated than that; for example if the government appears to be *sponsoring* the prayer, that would violate the Establishment Clause in the US. (e.g., if the school principal at a public school reads the Lord’s Prayer over the intercom every morning, but students are told they can sit quietly if they don’t wish to recite along with her.)

Something can be “religiously motivated”, but it must still have a secular purpose. “Lo tamut” (loosely translated as “Thou Shalt Not Murder”) is pretty religious in nature (even comes straight from a couple of stone tablets, supposedly etched by the Finger of G-d), but not murdering people serves a secular purpose.

The question that should be raised is what secular purpose does banning same-sex marriage serve? We know the religious purpose — what is the secular purpose?

We wouldn’t accept pseudo-scientific reasons why praying is “good for the psyche”, why do we accept pseudo-scientific reasons why banning same-sex marriage is “good for the psyche” as well?

(And yes, I’m referring to state mandated instances of “Dear G-d, we want stuff”, not individual students praying for all the right answers this time of year as final exams approach ;)

For example, generic “Dear G-d, we want stuff” prayers are prohibited even when the specific instance of “G-d” (with or without the dash) isn’t defined.

And just to be precise, it’s not the utterance of prayers but the requirement to pray which is prohibited in State institutions such as public schools. That’s what you meant, I’m sure, but some some followers of ‘the thruth’ have been promulgating the lie that the anti-establishment clause has been used to suppress private acts of worship within State institutions.

However, RonF’s broader point stands. Just because something is religiously motivated doesn’t make it unconstitutional.

FCH, I really, really don’t understand post #56. The opinion spends an awful lot of time explaining that they are not attempting to base their decision on policy, or on “same sex marriage good/bad”, only on the constitutionality of Prop 22.