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Although Prop 8 was passed, the Constitutionality of the law is what is being questioned. Whatever the majority deems lawful can be overturned, if such a law violates an individual's Rights; that is precisely what the Judiciary is for, to provide a check on the power of the Legislature.
I agree with the postings above. The courts are not (or, at least ideally, should not) be in the business of rubber-stamping majority opinions. The courts ideally are the places where the rights of minorities of all sorts can be protected. The U. S. is not a democracy but a republic. In democracies, majority rule matters most; in republics, rule by law is the chief criterion. It will be interesting to see what the U. S. Supreme Court decides, if it even takes up this case. I realize, of course, that courts are rarely completely "objective," but ideally they are more "objective" than the other branches of government.
It depends on if the law is constitutional or not. It really does not matter what all of the people think, if the law is not legal. The court's role is not to determine morality. The court is only interested in legality. The law was not constitutional.
It is the responsibility of the federal judiciary to overturn laws that it deems to be contrary to the Constitution, no matter how popular they are. Sometimes this means that the role the judicial branch is to serve as protection against the tyranny of the majority, to use Tocqueville's words. If the law unfairly discriminates against a minority in the court's estimation, than the decision is clear. It will be interesting to see if the Supreme Court is willing to take on the issue.
It depends on how unpopular the minority is, right? For a long time, whites were allowed to "democratically" choose not to give rights to blacks. Now, we are struggling over this issue with regard to gay rights. In general, majorities should not be able to vote to deny rights to minorities, but it's hard to know where to draw the line since some minorities (for example, those who want to practice polygamy) do have their rights denied.
If you read the 9th's opinion, the question presented and decided is not one of if same sex marriages violate the Constitution, but did prop 8 do so. The vote was 2-1 upholding the District court.
You can bet an appeal will be filed with the 9th En Banc, which I understand 11 Judges wiil be assigned to that, even though the full court has close to 30.
So, in all we have 3 Judges to 1 for striking it down.
As a side note the USSC has already ruled same sex marriages do not violate the federal constitution, back in 1971.
Whatever the En Banc court rules, if filed to be heard by them, the loosing side will no doubt appeal to the US SC. If they decide to hear the case, called a Writ of Certiorari, they ONLY decide law on the "Question Presented", and that will no doubt only be concerning Prop 8, not revisiting the 1971 ruling.
It takes 4 of the 9 Justices to grant Certiorari, if the case comes before them eventually, I see 4 there easily. If they deny certiorari, as with any case, that is not a ruling "on the merits", it simply means the decision stands.
Now, back in 1789 when the court was first organized there were only 6 members, if there was a tie vote, the lower decision stood.
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