Can you say Yes on 102

The main talking point for people opposed to Prop 102 is that same-sex marriage is already illegal in Arizona. The Supreme Court of Connecticut just pointed out why a law is not enough. The court just ruled that same-sex marriage is legal in the state. For more information on Prop 102 visit


  1. Kralmajales says

    Maybe you all should read these cases and look at the logic. I think many of you would be quite persuaded constitutionally.

  2. FraudShadegg says

    Yet another issue where we hardly hear a peep out of John Shadegg.

  3. James Davidson says


    These three cases are examples of raw judicial power. The Massachusetts Supreme Judicial Court’s analysis was that the limitation of marriage to a man and a woman was irrational and that no rational legislator could vote for such a limitation. A little arrogance there or what?

    For its part, the California Supreme Court held that sexual preference was to be reviewed under the strict-scrutiny standard, usually reserved for race cases. Who’s next in line following California’s reasoning? The North American Man-Boy Association, or Warren Jeffs?

    The Connecticut Supreme Court chose an intermediate standard for review, meaning that Connecticut judges will strike down laws on sexual preference they don’t like and uphold laws that they do like.

    In all three courts, what we have seen is the judges setting themselves up as little emperors, with disdain for the ordinary processes of democracy and majority rule.

    The reasoning of all three courts — inconsistent with each other — comes down to this: We don’t like what the law says and so we’ll invent a way to strike it down.

    We need the constitutional amendment in Arizona to stop run-away courts. Thankfully our current Supreme Court — a really superb court — is not so inclined. But Justices come and go, and a later court may not be so respectful of majority rule. Prop 102 will stop that type of nonsense. If someone wants same-sex marriage to be legal, get it the old-fashioned way. Persuade a majority of the legislature or take it to the people for a vote.

  4. Make sure you say no on Prop 200! The payday system relies on dragging hardworking people into debt. Prop 200 will keep the system in the state and will have voters securing 400% interest rates for these loan sharks!

    Check out the liar flyers they’ve been promoting to mislead voters:

    Vote no on Prop 200!

  5. kralmajales says

    Here is a report of the dissent, which some of you may choose to praise. Ask yourself if this, the best legal argument against gay marriage, is what YOUR marriage is really about.

    “One justice, Peter T. Zarella, argued that the real purpose of marriage laws is to regulate “procreative conduct” and that same-sex couples thus differ from people in traditional marriages.

    One justice, Peter T. Zarella, argued that the real purpose of marriage laws is to regulate “procreative conduct” and that same-sex couples thus differ from people in traditional marriages. “The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry,” Zarella wrote. “If the state no longer has an interest in the regulation of procreation”

    If you read the dissents in most of these cases and in others that strike down gay marriage, there is almost no real legal argument. They appeal to words like “tradition”, “natural”, “history”, “biology”, “procreation”.

    So if marriage is really about procreation, then does this undermine a hetero couple who happens to marry past the age of childbirth?

    Please…read these cases folks. In the majority opinions that strike down “one man one woman” you will read about liberty, about freedom, and about equality…in dissents you will read arguments that are barely persuasive to anyone.

  6. kralmajales says

    And by the way James,

    Can you tell us what the constitutional standards of rational basis and strict scrutiny are? If you can, then lets talk. If you don’t, I will come back and give a quick little lesson about the one you seem to praise versus the one you seem to think is not so great.

    On the raw judicial power part, you seem to suggest that the courts do not have the power to interpret our law? Have you read the constitution?

    That so called ‘raw” judicial power is simply judicial power. It is the same judicial power that you all praise when decisions are made that suit you. You cannot, without reading the opinion and the legal argument, argue that it is raw judicial power just becuase a majority doesn’t agree with it.

    Our constitution and constitutional founding plainly…PLAINLY…suggests that constitutional rights do not come from the majority…they come from natural law. Freedom, equality and liberty can be defined in many ways and we often fight over what they mean. This is one fight that society is shaping and you are losing.

  7. kralmajales says

    Most of you here are above the age of childbirth. IF you are on your first marriage beginning at the age of 45, or you are in your second marriage as a senior citizen couople…please note…the arguments being used to strike down gay marriage essentially say that your marriage is bunk too.

    Aren’t you the least bit angry?

  8. James Davidson says


    Nice try but it doesn’t work. Raw judicial power occurs when judges take a law or a section of the constitution and twist it beyond what the drafters intended and beyond any precedent to make it come out with the result the judges want. That’s what happened in all three cases. What’s mildly interesting is that the three courts didn’t agree with each other analytically, only in result, which betrays what they were really up to. That is, to impose their policy preferences on the majority.

    It is inconceivable that John Adams intended for the Massachusetts constitution to require same sex marriage when he wrote in in 1780. Same with the drafters of the California Constitution in 1879, or the Connecticut Constitution in 1965, or with the drafters of any amendments to the three constitutions. If that’s what they wanted, they would have PLAINLY said so, to borrow your word.

    There is no way you can equate sexual preference with race to invoke strict scrutiny. No one honestly can say that GLBT folks are a powerless minority. Minority in numbers, but far from powerless, and are a significant force to be reckoned with politically and in commerce and society. Contrast that with the plight of African-Americans in 1938 when Justice Stone invented strict scrutiny in footnote 4 of the Carolene Products case. Let’s recall that at that time African Americans in the South could not vote, or serve on juries, and were segregated in all public accomodations and in schools and universities, and were subject to terror, bombings, and lynchings, courtesy of the KKK, then the night-shift enforcement arm of the Whites-Only Democractc Party.

    There is no constitutional right to same sex marriage. I challenge you to find the section of any of the three state constitutions to find it. You can’t, because it’s not there.

    Instead, the three state supreme courts have stretched equal protection analysis to reach their desired result. It’s classic abuse of judicial power — nothing less.

  9. kralmajales says

    There is also not a constitutional provision for a right to contract and a host of other conservative based rights that the Supreme Court has discovered in the course of our history.

    Take a look at Tom Keck’s book, The Most Activist Court in History. Referring to the conservative Rehnquist one…which twisted the meaning of the constitution this way and that…for conservative ends.

    For the most part, the so called twisting is reasoned argument built on a tradition of additional reasoned arguments.

    What scares the devil out of some of you is that you are slowly losing this argument because most Americans:

    a) dont see their marriages threatened.

    b) dont see marriage about procreation only.

    c) dont see gay marriage as harming society.

    and most important of all:


  10. kralmajales says


    COME ON…stick to some conservative principles.

  11. kralmajales says

    James or anyone…

    Do you really believe…really believe…that the only rights that Americans have are those that are explicitly found in the constitution in words only? Or only what majorities say?

    Come on…don’t be stupid.

  12. Captain Freedom says

    Seriously, you people are the most pathetic bunch of morons I have ever seen in my life.

    Why does the GOP care so much about gay marriage? It’s like you people have become the Evangelical Bedroom Police. I bet when you all have free time you go up to houses with a magnifying glass and take photos of people minding their own business in their personal space.

    Seriously? This is why your party is going to lose the 2008 Presidential Election in an overwhelming triumph of defeat. Your party has not been fiscally conservative, has pandered to brain-dead talk-radio listeners who care more about guns and gays than about fixing our economy, fixing our debt, our nation’s security, and our prosperity.

    Indeed, I feel that you people are the Nazis of our time. Today it is marriage amendments, what next? Extermination? I bet the “freedom” party would just LOVE THAT!

  13. Captain Freedom says

    In addition to my previous comment, let it be known that I was once a Republican and conservative but left the party when the Evangelicals, pro-war orthodoxies, and big-spending liberals took over. You people and this website TRULY disgust me to the core. I am not arguing with conservatives. I am arguing with fascists.

  14. kralmajales says


    I was also a conservative Republican, then realized that they don’t tax and spend, they spend and borrow…and never pay it back.

    I became a libertarian and then realized it was like reading a science fiction novel. Neat ideas…they don’t work.

    All I am left with is being and independent, looking for smart people that can see both sides of an issue and, this time, punishing the GOP for destroying our country.

  15. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  16. kralmajales says

    Ahhhhh the 9th Amendment…

    Speaketh of Freedom!

    I love America.

  17. Captain Freedom says

    Ya know, there was this guy, don’t know if any of you ever heard of him. He was pro-choice. He condemned Ronald Reagan for Iran-Contra. He said that “Every good Christian should kick Jerry Falwell’s a**.” He supported medical marijuana. Most importantly however he was strongly pro-gay rights and was condemned by the Republican Party of AZ in the 1990s.

    That man, in case you didn’t know, was conservative Republican Barry Goldwater. One of the greatest Senators to have served in the U.S. Senate and before he died he became the AZ GOP’s worst nightmare by standing up to their move towards Christian Fascism and away from Constitutional Republic values.

    So to hell with you all. I will continue to fight the good fight for Goldwater conservatism and I will stand strong with the moderates, independents, and fair-minded Arizonans who see the true evil behind Prop 102, Center for Arizona Policy, and Kathi Herrod’s rich white-collar money-rolling bigotry machine.

  18. James Davidson says


    You confuse substantive due process with equal protection analysis. Under substantive due process, the US Supreme Court will indeed prohibit Congress (under the 5th amendment) or a state legislature (under the 14th amenment) from passing laws that restrict certain basic liberties long-recognized in the British and American traditions. Among these are the right to contract, to travel, to procreate, and so on. State supreme courts have followed this lead in the way they treat the due process clauses found in their respective state constitutions.

    Same-sex marriage is not now and never has been such a right. It has no roots at all in the history or traditions of British or American law. If it did, activist state supreme courts would have based their decisions on the due process clauses of their state constitutions. Indeed the opposite has been true. Historically neither Parliament, nor Congress, nor state legislatures recognized such a right. Nor historically has any Britich or American court recognized a liberty or right to same-sex marriage.

    Instead, such activist state supreme courts have turned to equal protection analysis, and have done so in a confused and inconsistent way.

    As I noted earlier, the Massachusetts Supreme Judicial Court held that no rational legislator ever could vote against same sex marriage, even though all 50 states had such a prohibition, and Congress recognized it in the Defense of Marriage Act signed by President Clinton.

    The California Supreme Court would have had a tougher time saying that no rational person could have voted against same-sex marriage, since a wide majority of California voters had done so in 2000. Even the California Supreme Court did not have the guts to tell a super majority of California voters that they were irrational. So, the California Supreme Court took the strict-scrutiny route, holding that sexual preference is entitled to the highest protection a court can afford — similar to the way it treats race. That will lead either to a retreat when the polygamists come forward, or unprincipled distinctions. It makes no sense under strict scrutiny analysis, which is why California stands alone in its reasoning.

    For its part the Connecticut Supreme Court used intermediate scrutiny – half way between rational basis and strict scrutiny — which as I noted earlier means that Court will uphold laws it likes and strike down ones it doesn’t, such as the law limiting marruage to a union of a man and a woman.

    Face it: Judges are substituing their policy prefernces for those of a majority, and it is nothing short of raw judicial power. It utterly lacks any support in principled analysis.

    Captain Freedom:

    Your name calling prevents anyone from taking you seriously. At least Kralmaljes tries to make principled — if analytically unsound –arguments.

    Todd: You confuse the Ninth Amendment to the US Constitution with state constitutions. They are not the same. State Legislatures always have had the right to legislate regarding marriage.

    Last word: Why are you all so afraid of making your case in the political process? Take it to your Legislature or get the signatures for an initiative. If you can only win it through a 4-3 majority of a state supreme court, you haven’t much of an argument. It might appeal to judicial elitists, but that’s it.

  19. James Davidson says

    Captain Freedom:

    I wouldn’t cite Senator Goldwater as the beacon to follow. He was one of the very few Republican senators to vote against the 1964 civil rights law. Far more Democrat senators than Republican senators opposed it, but that’s an issue for another day.

  20. Captain Freedom says

    Excuse me James Davidson, if Barry Goldwater is not a “beacon to follow” then why does your party trump him all the time along with Ronald Reagan? Now I personally don’t think much of Reagan but Goldwater is someone who every AZ Republican cites as their hero.

    Goldwater was wrong on the 1964 Civil Rights Act… but he more than made up for it later on in his career. LBJ was also opposed to the Civil Rights Act until Kennedy was assassinated and then saw the political opportunity to take the issue as his own.

    Honestly James, I think it is amazing how committed you and all the Republicans on here are to “fighting the gay agenda”.

    The way you people talk about the LGBT community is as if you expect them to invade your homes and rape your kids. You all talk about LGBT Americans the same way you all talk about Mexican immigrants.

    Why don’t you all just eff off already? Ya know, there have been professional medical studies done that prove extreme homophobia or passion against LGBT rights are closely linked to closeted homosexual repression or strong curiosity to experiment.

    Maybe that explains why all the gay sex scandals tend to involve Republicans.

  21. James,
    Section 33. The enumeration in this Constitution of certain rights shall not be construed to deny others retained by the people.

  22. kralmajales says

    The ninth amendment!!!!!

    That is the ultimate in American freedom.

  23. kralmajales says


    There has been recognition of the right and our consitutional history and law evolves over time. If indeed you are right about the majority in those three states, then why have they not overturned it? Massuchusetts republicans and pro-family groups have tried a couple of times to overturn the Goodridge decision and could not.

    To say that there has never been court recognize it is absolutely false. Plenty of state courts, plenty of state trial courts, and I think some federal ones as well. Indeed, the issue of states recognizing civil unions is an example of this.

    This is not the raw unbridled or illegitimate stuff you say.

    I think the argument against it is less persuasive, that is why so many don’t want it in courts at all. When it gets into courts, it is legally flimsy and it is also rhetorically and logically flimsy.

    I suspect we will be fighting this one out for some time to come. But I can assure you that my side will win.

    Because it IS about freedom.

    I will get back to you on substantive due process which I know quite a bit about. What I was responding to, in brief, was your rhetoric about courts making up rights and such. I argue that they interpret provisions of the consitution, state laws, and other sources of law….all the time…in ways that are indeed in the spirit of the law.

    And it happens on both sides of the fence. This stuff about activism and restraint is a conservative ruse that blindly detracts from reasonable legal arguments that judges agree and disagree on.

    Last, you all have some fun and smart rhetoric about courts and their power. They are still the “least dangerous branch” that Hamilton envisioned them as. Read Gerry Rosenberg’s book, the Hollow Hope and his theory of judicial impotence. Courts neither have the power to enforce their ruling or implement them. They kick the ball in the playground and let the political branches and political movements run with it.

    You and I are playing politics now…both of us.

    As for rational basis…and strict scrutiny…I see how it scares you that rights and liberties that you don’t agree with could be tested under strict scrutiny. It gives the onus on the government to prove that they took the least restrictive means in their law to harming individual rights.

    That is something conservatives claim to believe in the most…especially at McCain rallies. How can you support the rational basis test when it allows government to regulate almost anything with any flimsy, poor, weak or non-argument?

    IN this case, like that tradition is more important that rights or that procreation is the govt. purpose of marriage.

    You have to believe deep inside that both of those are bs arguments.

  24. James Davidson says


    Give it up. Admit that you want same-sex marriage to be legal, and you don’t care how these three liberal state supreme courts get it for you. In contrast, I care deeply about the methods courts use to decide cases, and about majority rule in a democracy. The reasoning of these three courts was grossly defective.

    Massachusetts does not have the initiative petition to amend its state constitution. So we’ll never know what the majority wanted. California does, and we’ll see how the vote goes this November.

    Captain Freedom:

    You’re a phoney. You’re one of these fakes who says he was a Republican to try to add weight to an argument, and then attacks Republicans viciously.

    You also need help with the facts. Johnson supported the 1957 Civil Rights Act, though he watered down what Eisenhower proposed to get something past the Democrat-controlled Senate. He voted for the 1960 act, and supported Kennedy’s proposal in the 1960 election.

    For his part, Kennedy was lukewarm at best on Civil Rights. He proposed a strong law in 1960, but was nowhere to be seen in 1957 when Nixon and Eisenhower were fighting for just such a strong law in Congress. Kennedy didn’t propose an actual bill until 1963, and only gave the television speech in June 1963 supporting it after Rev. Martin Luther King Jr. forced his hand by the Birmingham demonstrations that brought Bull Connor and his attack dogs to national infamy. Kenendy appointed racists to federal courts in the southern states. Justice William Douglas commented on Kennedy: “Jack Kennedy, being in his first term, was playing for solidarity with the South — which meant solidarity with racists.” The Autobiography of William O. Douglas: The Court Years 1937-75 p. 128 (Random House, 1980).

    Goldwater was for limited government and the free enterprise system. But he made lots of mistakes, and was not an effective leader. Witness his crushing defeat and Reagan’s crushing victories.

    Nothing makes up for Goldwater’s vote against the 1964 Civil Rights Act. He was weighed in the balance and found wanting. In his later years, the years after he retired from the Senate, he went a little dotty. Those apparently are the years you like best.

  25. kralmajales, my second quote is from the AZ Constitution which is in response to James’ view that these sentiments to not exist in State Constitutions.

  26. I’ve found the legal opinions on this issue to be very interesting and informative.

    All of ’em, that is — not just the ones that kraj may prefer to discuss.

  27. Captain Freedom says

    Dear James,

    It was under your great Christian leader George W. Bush, that gay marriage became legal in three states. It was also under his presidency that gays saw more freedom at the state levels than any President in U.S. history.

    You can continue to shove these fire-and-brimstone marriage amendments down America’s throat. At the end of the day Americans don’t give a flying rat’s ass about gay marriage and are offended at the suggestion that it should dominate the political debate.

    In four years, public opinion will reverse and then you will see these marriage amendments being overturned all across the country. As these marriage amendments start to get overturned you will see people like yourselves being in the position of the minority you will be heavily scrutinized for being on the wrong side of history.

    Just remember, battles like this one never end up on your side. The same people fighting for this amendment (southerners and social conservatives) used churches and the bully pulpit to argue in favor of banning interracial marriage. They used the KKK to show their pride in the white race.

    Unfortunately you guys no longer have the power or structure to do the same with gay marriage but you do have money. That said not all the money in the world can continue to promote the lies and deceptions that the far-right has spread to promote Prop 102 and Prop 8 in CA. You may win in November but you are a loser in the eyes of history and in the long run.

  28. “At the end of the day Americans don’t give a flying rat’s ass about gay marriage and are offended at the suggestion that it should dominate the political debate.

    In four years, public opinion will reverse and then you will see these marriage amendments being overturned all across the country.”

    27 marriage amendments, many of them passed with overwhelming margins.

    But you’re right, public opinion may change. If judicial opinion usurps that role, however, then we don’t really give a damn, do we?

    Funny re: the south, the KKK, and racial discrimination. Might want to look more into the history of the Democratic Party.

  29. James Davidson says

    Captain Freedom:

    Same-sex marriage is defintitely NOT about freedom. That is demonstrably false. It is about liberal social ideology, with liberal state supreme courts as the vanguard for implementing such ideology, and with no regard for majority-rule or democracy.

    We are born free, as Jefferson wrote in the Declaration of Independence, endowed by the Creator with certain inalienable rights, life, liberty, and the pursuit of happiness among them.

    What you want is not freedom. Freedom is an absence of government, as in, for example, Congress shall make no law abridging freedom of speech, of the press, or of religion.

    What you also want is State recognition that the union of a man with a man, or of a woman with a woman, is on a par with the union of a man and a woman. You also want all the government benefits that flow from such recognition, benefits mainly (though not exclusively)involving the bringing up of children, joint use of property, inheritance, and employment and insurance benefits.

    Government benefits and government recognition are not freedoms, and most of the benefits I described can be achieved by contract, will, or medical power of attorney. Whether it is more cumbersome to make such arrangements by marriage than by contract, will, or other private device, is debatable. Marriage certainly has its obligations and restrictions.

    But more than anything else, your side wants society and government to accept same-sex unions as legitimate and equal to marriage between a man and a woman. That’s the end game, and it is purely liberal social ideology

    If freedom were the real issue, a principled libertarian, as you claim to be (but which I highly doubt), would move to abolish state-sponsored and state-recognized marriage, and let people sort out their relationships as they want, without state intervention, as happened in colonial times and on the frontier. But then your idelologues could not force society to put same sex unions on a par legally with marriage between a man and a woman.

    Your blogging shows you don’t like Republicans, Christians, Reagan, Bush, or any push back against activist judges.

    You do like Senator Goldwater because late in his life he pushed for gays in the military, mainly out of solidarity with his gay grandson. Yet you are perfectly willing to overlook his vote, when the chips were down and it really mattered, against civil rights for African-Americans and women and for segregationist Democrats.

    I do not overlook it, and as I noted before, whatever his other virtues in fighting for limited government and free enterprise, Goldwater was placed in the balance and found severely wanting on the 1964 Civil Rights Act –one of the biggest decisions by Congress of the last century.

    If no one really cared about same-sex marriage, as you claim in your colorful language, why did your side develop its litigation strategy to get through the courts what you couldn’t get at the polls? What you don’t like is the push back that opponents of state-recognition of same-sex marriage have achieved through the democratic process.

    Will your side win in 50 years and succeed in getting state-sanctioned same-sex marriage? Time will tell. It has not won so far at the polls, and hasn’t really even tried, knowing what the results would be. Even Obama, Hillary, and Kerry have stated on the record they oppose same-sex marriage. Your side has succeeded in three states with confused, and inconsistent, 4-3 decisions of liberal, activist state supreme courts. So liberal judges are willing to legislate from the bench. What’s the news there?

    This is it from me. If you or anyone else writes back, you won’t be hearing from me.

  30. James Davidson ,
    I don’t know what anyone else thinks, but I in fact would move to, as you put it, end “state-sponsored and state-recognized marriage, and let people sort out their relationships as they want, without state intervention.” I think this would actually be the best solution.

  31. James Davidson’s analysis and historical details related in the discussion are impressively accurate and too often forgotten. Nice job, James. Thanks to Kral for stimulating the debate and staying on topic.

    Something rarely discussed in this debate is the effect marriage laws have on adoption, school curriculum, health insurance costs, public health, etc. And, despite the emphasis on same-sex marriage, the implications go far beyond a single segment of society.

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