Wednesday, June 18, 2008

 

All Things Reconsidered Program Note

We'll be talking equality of marriage tomorrow night. I have Pat McCutcheon lined up as a guest. She and her partner Cheryl were the first couple to be married yesterday morning once universal licenses were being granted. She will discuss the importance of the "piece of paper" to her relationship, what appears to be a pivotal moment in public opinion, and the November initiative.

We'll also discuss the opposition, including developments in Kern County noted below.

And Ms. McCutcheon mentioned something that I'm going to have to research. It comes down to a sentence in Article 1, Section 9 of the U.S. Constitution.
No Bill of Attainder or ex post facto Law shall be passed.
It limits Congress' power, but I'm sure there's been a case which applies it to the states. But basically, once these people are married, their rights are vested. It means that even if the initiative passes in November, these marriages can't be retroactively dissolved. Like I said, I have to research the question. The point is, make hay while the sun shines.

On the other hand, I think we may have turned the corner on this issue. In California anyway.

As usual, the show will start at 7:00 p.m. Phone in your questions and comments before Ron Davidson calls in to whine about how Webster changed the dictionary in 1974 to eliminated the definition of homosexuality as a perversion.

Comments:
So in all the history of civilization, we may have only a 4 1/2 month window to marry like anyone else?

Fight like hell this election season so you won't be telling your grandchildren about the 4 months of decency sandwiched in by millenia of prejudice.
 
The Supreme Court decision was on par with Brown versus the Board of Education.
 
Estelle could come out now if she had the intestinal fortitude it would take to face the shit-storm that would do to her campaign. Might improve her chances--might not.
 
I wonder what's happening in counties like Lassen.
 
Don't know about Lassen but Kern and Butte are citing "budgetary issues."
 
Stephen you need to take your meds.
 
It would be great if progressive ministers organized to travel to these counties and perform ceremonies for all who need them, right on the steps of the county buildings.
 
And maybe some couples should actually drive out there to request licenses.
 
I believe that's already happening in Kern. They actually have ministers out there willing to perform services. Bakersfield is actually a fairly large place, and probably doesn't qualify as "rural."
 
Yep. Half the size of San Francisco.
 
Eric, Eric, Eric....

Ex post facto? Really? Where do you pull these things out of?

The meaning and proper application of the Constitution's ex post facto clauses in Art I, § 9, cl 3 and Art I, § 10, cl 1 has drawn the attention of the United States Supreme Court from the early years of the court's existence. The court has expressed a number of general principles One is that the ex post facto clauses apply to only legislative enactments, not to judicial alterations in the law. Another general principle is that the ex post facto clauses prohibit only laws which are applied retrospectively, that is, to events occurring before enactment. Third, the long established position and the general principle that only criminal laws can be ex post facto laws within the federal constitutional prohibitions, although it has been noted that merely labeling a law as civil will not insulate it from scrutiny under the ex post facto clauses if the law is found to be essentially penal in character. Finally, the ex post facto clauses prohibit only changes in the law which operate to the detriment of accused persons. While the Supreme Court has overruled some earlier language which had suggested that the creation of a disadvantage to an accused is sufficient to make the retroactive application of a law void under the ex post facto clauses, the court appears to have adhered to the views that the ex post facto clauses do not prohibit ameliorative changes in the law and that a detriment to the accused is a necessary, if not a sufficient, condition for invalidation under the clauses.

The following United States Supreme Court cases expressed the general view that only laws of a criminal nature can be ex post facto laws within the prohibitions of Art I, § 9, cl 3 and Art I, § 10, cl 1 of the Federal Constitution: Calder v Bull (1798) 3 US 386, 3 Dall 386, 1 L Ed 648 (opinions of Justices Chase, Paterson, and Iredell); Watson v Mercer (1834) 33 US 88, 8 Pet 88, 8 L Ed 876; Baltimore & S. R. Co. v Nesbit (1850) 51 US 395, 10 How 395, 13 L Ed 469; Carpenter v Pennsylvania (1855) 58 US 456, 17 How 456, 15 L Ed 127; Walker v Whitehead (1873) 83 US 314, 16 Wall 314, 21 L Ed 357; In re Sawyer (1888) 124 US 200, 31 L Ed 402, 8 S Ct 482; Kentucky Union Co. v Kentucky (1911) 219 US 140, 55 L Ed 137, 31 S Ct 171; Johannessen v United States (1912) 225 US 227, 56 L Ed 1066, 32 S Ct 613; Bugajewitz v Adams (1913) 228 US 585, 57 L Ed 978, 33 S Ct 607 (apparently recognizing rule); Bankers Trust Co. v Blodgett (1923) 260 US 647, 67 L Ed 439, 43 S Ct 233; Mahler v Eby (1924) 264 US 32, 68 L Ed 549, 44 S Ct 283; Harisiades v Shaughnessy (1952) 342 US 580, 96 L Ed 586, 72 S Ct 512, reh den 343 US 936, 96 L Ed 1344, 72 S Ct 767 and reh den 343 US 936, 96 L Ed 1344, 72 S Ct 768; Galvan v Press (1954) 347 US 522, 98 L Ed 911, 74 S Ct 737, reh den 348 US 852, 99 L Ed 671, 75 S Ct 17; Collins v Youngblood (1990) 497 US 37, 111 L Ed 2d 30, 110 S Ct 2715 (recognizing rule); and Landgraf v USI Film Prods. (1994) 511 US 244, 128 L Ed 2d 229, 114 S Ct 1483 (apparently recognizing rule).

So even though I believe that anyone should be able to marry anyone else will never support the proposed ban, IF IT STUPIDLY PASSED, IT AIN'T EX POST FACTO.
 
This source says different. Does California have its own clause?
 
Mea culpa. I did say I hadn't done the research, but I should have done a simple googling.

Still, is there a precedent for the state dissolving an existing marriage without due process? The specifics may be off, but the general premise may not be.
 
Never concede defeat, right, counselor? Even if your wrong?
 
Well, never concede defeat when you can still preserve somebody's basic rights. Would you really give up on your marriage that easily Stephen? Sad if true.
 
Why do you oppose gay marriage Stephen? Your religion?
 
Tuesday, the Attorney General's Office said even if the constitutional amendment passes in November, it would likely have little effect on marriages performed between Tuesday and Election Day.

”I can't imagine all the potential legal scenarios come November, but our office believes these marriages will be valid regardless of the outcome of that initiative,” Gareth Lacy, press secretary for the Attorney General's Office, told the Times-Standard. “We believe the marriages will still be valid.”

http://www.times-standard.com/ci_9620634?IADID=Search-www.times-standard.com-www.times-standard.com
 
Well, the Attorney General didn't get Stephen's memo. Why doesn't the Attorney General just give up?
 
This isn't about me, Eric, so you too, stop with the stupid grade-school slander attempts.

I have nothing but respect for gay marriage--they tend to last longer than heterosexual ones. My point is, Eric and fellow smear-prone debaters, Estelle is gay, and has a longterm partnership. Personally, I don't think if she got publicly married now it would hurt her campaign at all. It would get an issue out in the open and 2nd District voters might learn something new and good about homosexual relationships in the process.
 
Some of Stephen's best friends are gay.
 
Stephen says he supports gay marriage but he is ready to throw in the towel the minute an anonymous poster cites some case law. Way to buckle under Stephen!
 
Not about me. Stick to the topic, Eric and slime-anons.
 
You try to make every thread about you Stephen. Deal with the results.
 
Ah, read my posts, slime-anon and see that I get smeared by you cowardly creeps every time I post ANYTHING. It's like in your paranoia of Steve Lewis you see each and every word I post as something to take offense at, something worthy of abandoning reason and adult social responsibility to act out a childish gang wish, the wish to be with the white-sheets and hooded anonymous mob that strings up the local black man who's offense is being black on white turf. That's exactly how you cowards who call yourselves anons behave on Eric's and Heraldo's blogs where I post. Just like A mob of white-robed idiots thinking their numbers gives them power to thwart truth--which it does--at the time--but the day does arrive-does it not? When the anonymous hoods are pulled up for all the community to see who's been underneath all along bringing the whole community down to sub-human levels of social tolerance.
 
Nobody cares Stephen.
 
You're repeating yourself. Get another script to read but make it easy on yourself--no big words you haven't learned the meanings of yet in your 2nd grade classroom.
 
Well, it's better than the other one I've always had to delete.
 
Eric might actually be correct for once. As stated in Calder v. Bull, 3 U.S. 3 Dall. 386 386 (1798):

A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or in other words for an act which when done was in violation of no existing law; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause, or a law that takes property from A. and gives it to B. It is against all reason and justice for a people to entrust a legislature with such powers, and therefore it cannot be presumed that it has done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; It may declare new crimes and establish rules of conduct for all its citizens in future cases; it may command what is right and prohibit what is wrong, but it cannot change innocence into guilt or punish innocence as a crime or violate the right of an antecedent lawful private contract or the right of private property. To maintain that our federal or state legislature possesses such powers if it had not been expressly restrained would, in my opinion, be a political heresy altogether inadmissible in our free republican governments.
 
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