Whatever one thinks of same-sex marriage, this is a question on which thoughtful people of goodwill can and do disagree. It is a perfectly reasonable and good-faith position to believe that marriage is a unique institution formed around childrearing. And to see same-sex relationships as fundamentally a bilateral partnership between two adults that can be governed by legal institutions like civil unions that create and preseve rights and obligations between two adults and to give the opportunity to form a long-lasting mutually-supportive loving bond without it being centered on the fundamental organizational principle of childrearing. And it is significant that married people with children apparently simply see this issue differently from everyone else--I speak from experience that marriage and children simply can and should change you as a person and your worldview. Maybe one disagrees with this argument or these people. But it is a perfectly compassionate and coherent position and it simply is not necessarily bigotry or gay-bashing to believe that. Barack Obama says he is against same-sex marriage--does that make him a bigot?
And here, Dale Carpenter discusses whether Prop 8 is an Amendment or a Revision to the Constitution.
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There is another clause, the cruel and unusual punishment clause.
The freedom from cruel and unusual punishment is absolute. There are no legal exceptions to the prohibition of imposing cruel and unusual punishment. The only question in court cases involving allegations of cruel and unusual punishment is whether the punishment in dispute is cruel and unusual.
Thus the California Supreme Court so ruled about the death penalty in California v. Anderson .
Voters reacted by passing an initiative amendment to declare the death penalty constitutional, thus carving out an exception to cruel and unusual punishment.
Lawyers for Lavelle Frierson, who had been sentenced to death, filed an appeal. among their assertions was that the provision of the constitution excepting the death penalty from the cruel and unusual punishment clause was a revision and thus not properly adopted.
In People v. Frierson , the California Supreme Court rejected this argument. Thus, a mere majority of voters have the power to carve out exceptions for the cruel and unusual punishment clause .
For the Court to overturn Prop 8, it would have to rule that a revision is necessary to define marriage as between one man and one woman, while an amendment passed by a mere majority of voters is all that is needed to exempt waterboarding from the cruel and unusual punishment clause.
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