PROP 8 CHALLENGE UPDATE: From today's L.A. Times

[Zomby Woof]

Put on your constitutional scholar caps, because this requires some deft mental maneuvering. The gist is that California AG Jerry Brown's legal brief filed recently requesting that the state Supreme Court overturn Prop 8, contains some points that could be used as arguments against the reversal. One of the major legal arguments that has been presented against Prop 8 is that it calls for such a major revision of the constitution, that the voter-approved initiative alone is insufficient to carry it out. Rather, a traditional amendment process via the legislature is the only way to enact such a major change (and negation of a civil right upheld by the state court earlier this year). However, Brown may be presenting this as a preemptive strike against Prop 8 supporters and the legal arguments Ken Starr and his pack will likely have in their arsenal. I want to trust Brown will do what is best, and that just because he believes the 'initiative vs. amendment' argument is possibly insufficient for his case, it doesn't mean there aren't plenty of arguments which are effective. A good attorney will always be prepared to know the full strengths and weaknesses of their arguments beforehand, so as to better prepare their case. I believe if he goes to the heart of the very argument the SC used in their affirmative decision earlier this year - that California's liberties include the right to marry - it could set up a positive outcome. Expect the usual howling and whining from conservatives about "legislating from the bench", if Brown should prevail for the Overturn 8 cause. Get thee to a civics class, wingnuts.


Here are some highlights from the article and a link for your perusal:


California Atty. Gen. Jerry Brown’s decision to ask the Supreme Court to overturn the state’s ban on same-sex marriage has been widely hailed as a victory in the fight for gay rights.

But far less attention has been paid to Brown’s lengthy written rejection of some of the principal legal theories put forth by gay marriage advocates in their bid to roll back Proposition 8. In his brief filed on Friday, Brown said he believed a ban on same-sex marriage undermined fundamental liberties enshrined in California’s Constitution.

But the larger chunk of his 111-page legal filing was devoted to shooting down a more technical legal argument used by gay marriage supporters. Brown said attorneys challenging the measure had “failed” to prove their point that the ballot measure offers such a major revision to the state Constitution that it cannot be enacted by a voter-approved initiative alone.

Brown’s decision to throw the weight of his office behind gay marriage has sparked debate over whether his arguments will actually do more harm than good for those hoping to overturn the initiative. Some opponents of gay marriage say they are relieved that Brown, who personally supports gay marriage, did an about-face and will not be offering a half-hearted defense of the initiative before the Supreme Court. At the same time, they say, Brown’s legal position helps undermine a key claim that voters alone cannot decide an issue that makes such a major change to the state’s Constitution.

More: http://latimesblogs.latimes.com/lanow/2008/12/california-atto.html

[NYC_SKP]

1. Jerry Brown is a Great American....I wanted him as president, but I'm still happy

He may make another run at governor.

Here is his official gubernatorial portrait, it hangs in the gallery in the state capitol in Sacramento.



:patriot:

[tuvor]

6. Looks like a subdued Philip Burke caricature.

I likes it.

[rug]

11. I love Jerry but he's turning into a muppet.

[NYC_SKP]

12. At least he's Blue! nt

[AntiFascist]

2. Again the LA Times glosses over some important issues...

Prop 8 merely attempts to change the definition of marriage, neither it nor the arguments presented in the ballot materials addressed eliminating a Fundamental Right, or addressed any of the issues related to Article 1 of the State Constitution (which is equivalent to the Federal Bill of Rights). The reason for this is simple: Prop 8 was drafted before the California gay marriage ruling.

[boppers]

3. So, some arguments could be used, against some reversal tactics...

It seems fairly well thought to me.

[TheWraith]

4. While they're at it, can they change the amendment system?

I hate to keep belaboring the point, but 50% plus one is a DUMBFUCK way to amend your constitution.

[AntiFascist]

5. The supreme court can start by upholding the Revision clause...

even though according to Jerry Brown it predates the amendment clause.

[Zomby Woof]

14. Not only that...

But it takes a legislative supermajority of 67% to pass tax increases. They have it backwards. California is perpetually broke (thanks in no small part to Prop 13), and it is extremely difficult to get 67% approval for any kind of revenue vote. But the passions of the mob (as Hamilton warned us about) can allow knee-jerk emotional/bigoted/superstitious-based votes that curtail civil liberties and affect real lives with just a simple 50.01% majority.

If most school bonds usually need a 60% supermajority, why not have ALL ballot initiatives in California require 60% (or 67% for that matter) of the vote to pass, and allow a simple majority (or smaller supermajority) to pass tax and fee hikes to face down very serious budget shortfalls?

[No Elephants]

7. Massachusetts went through something similar. The SJC (our state supreme court) held

in favor of gay marriage. The neo theos were very well organized and very well funded and started pounding on the state citizenry and the state lagislature. It was RELENTLESS. But, here, any Constitutional Amendment has to begin in the State Lagislature. (or is it that only an amendment overruling the Supreme Court has to begin in the State lagislature?)

Anyhoo,, the neo theos just tried to make it impossible for the Legislature to be passive. However, the LGBT community was very well organized too and they had a lot of hetero supporters. (Hey, it's Massachusetts!)

So, the Legislature stonewalled for one session. Next session, same thing. Our rule is two sessions of inactivity and the court decision stands. Several years later, you never hear anything about it, except sadly, a story when the first couple divorced. No big deal, though.

Thing is, no matter what happens, too many states already have amendments. The next focii have to be: (1) making sure Stevens stays alive for at least another month, even if we have to repeat the movie Dave for him; and (2)get started on lobbying Obama and influential Democrats for pro GLBT SCOTUS Justices. Identify them and then lobby for them. And that's the ball game.

It may also be a good thing to work in states to make overruling a state supreme court decision in a constitutional matter, especially civil rights, hard to impossible to overrule. On gay rights and other things, we are in danger of losing the protestion the judiciary was intended to give.

[-..__...]

17. That's not quite accurate...

there was no inactivity by the legislature.

There were two votes by the state legislature (ordered by the same state supreme court that ruled the ban on gay marriage was unconstitutional).

A vote to amend the state constitution to ban gay marriage was successfully passed in the first session, but was defeated (narrowly), in the second session.

Had it passed the second time, it would have been left to the voters to decide...


"First Constitutional Convention vote

The first Constitutional Convention vote on the petition amendment was scheduled for July 12, 2006,<11> but was postponed until November 9, 2006 to take place after the next state elections.<12> On November 9th, 2006 the Legislature voted to recess the Constitutional Convention until January 2.

On November 19, 2006, Gov. Mitt Romney led a rally against the tactics that the Massachusetts legislature used to delay and possibly prevent a vote on the same-sex marriage ballot initiative in front of the Massachusetts State House. Romney said he would ask a justice of the state Supreme Judicial Court that week to put the initiative on the ballot in case the legislators failed to vote on the initiative on the last day of the Joint Session, January 2, 2007 as required by the Massachusetts Constitution Amendments Article XLVIII (The Initiative, IV. Legislative Action on Proposed Amendments, Section 2. Joint Session)<13> Romney said, "The issue before us is not whether same-sex couples should marry. The issue before us today is whether 109 legislators will follow the constitution."

On December 27, 2006, the Massachusetts Supreme Judicial Court agreed unanimously with Gov. Mitt Romney's repeated assertion that Article 48 of the Massachusetts Constitution explicitly and unambiguously requires that the Massachusetts Legislature take a final vote on any and all voter initiatives placed before them. That includes the marriage amendment. The court, though, also stated that it had no legal remedy that it could enforce upon the Legislature due to laws that separate the judicial and legislative branches of government.<14> The legislature voted on the measure on January 2, 2007, shortly before its 2005-2006 session ended. The amendment received 62 "for" votes in Constitutional Convention and thereby cleared its first hurdle toward ratification.<15> However, a second vote during the 2007-2008 session was needed to put the amendment to the voters."

http://en.wikipedia.org/wiki/Same-sex_marriage_in_Massachusetts#Attempts_to_amend_the_state_constitution

[TexasObserver]

8. The Supreme Court of California will act as it chooses, irrespective of Brown's brief.

His support of the key issue helps, and his other positions will not affect the ruling on the main issue. I've said since the passage of Prop 8 I believe the California Supreme Court will rule against Prop 8, because it is a denial of a fundamental, constitutionally protected right based upon a mere majority vote.

The job of an attorney in an appeal is to give the court a way to get where he or she wants them to go, by providing a legal theory they can follow. The Lesbian group which filed the action has done that, other organizations have done so, and Brown has done so. If the Cali SC wants to rule against Prop 8, they have the briefing before them to do so.

Prop 8 is going down. I'd wager heavily on it, if I were a betting man.

The next big battle will be an attempt by the forces of hatred to remove the justices who have voted correctly, after the ruling is issued, IMO.

[davidpdx]

9. Hopefully this is a step in the right direction and will get it overturned

What a rebuke it will be for the Mormons who poured funds into getting it passed.

[Clio the Leo]

10. kick NT

[NYC_SKP]

13. kicking your kick, and....

I love Jerry Brown...

Happy Holidays, Clio the Leo!

:toast:

[xchrom]

15. kick

[Zomby Woof]

19. xchrom!

I don't see enough of you around here these days. Your welcome presence always reminds me of the early GD days, where we had to fend off the anti-choicers. Everything old is kind of new again, sad to say.

:hi: :toast:

Happy New Year to you!

[xchrom]

20. Peace and Joy to you and to All in your House!

it's always nice to see you zomby!:hi:

[DCBob]

16. It is too bad they could not have kept this off the ballot in the first place.

Was there a fight to keep it off the ballot?

[Starry Messenger]

18. There was legal opposition but it got shot down.

http://en.wikipedia.org/wiki/California_Proposition_8_(2008)#Petition_to_remove_proposition_from_ballot