Is Proposition 8 Toast?

[t0dd]

http://www.gather.com/viewArticle.jsp?articleId=281474977673561&grpId=3659174697244816&nav=Groupspace

Given recent developments concerning marriage equality, is it now likely that the California Supreme Court will invalidate Proposition 8? The hotly contested 'amendment' to the California Constitution removed the existing rights for same sex couples to marry in California when it passed in November. A recent blog posting by Kate Kendell, Executive Director of the Center for Lesbian Rights, noted that she now thought a ruling invalidating Proposition 8 is now more plausible than one upholding it. The ruling on the validity of the measure is due from the California Supreme Court by June 3. It's also interesting to note that the one year anniversary for the prior court decision that allowed same sex couples to marry legally is approaching on May 15. Could the Court use that anniversary to affirm the Constitution's promise of equal protection of all citizens?

This is a tremendously important case that has implications for all Americans. It is the first time in our country's history in which the existing rights of a minority were stripped using a state constitution amendment. Constitutions historically were intended to protect rights, not eliminate them. The use of an initiative constitutional amendment to overrule a previous court's ruling should be distressing to all Americans.

In the prior marriage case, which allowed same sex marriage to move forward, the court opinion was released approximately 30 days after oral arguments. It's now been over two months since the justices heard oral arguments in the Proposition 8 case, without any ruling so far. If the justices were leaning towards upholding Proposition 8, it would have been a simple ruling. The main arguments and prior case laws were already laid out by the proponents of the Proposition in their briefs.

The extended amount of time that it has taken to draft the opinion would seem to indicate a much broader opinion, which would seemingly bode well for those against the proposition. As I noted in a previous article, it's also possible that the justices could uphold the measure and instruct the legislature to come up with a new term for marriage. This would harmonize the Constitution's requirement for equal protection with the strict interpretation of the wording of Proposition 8. This was a suggestion brought up a number of times by the justices during oral arguments, and would necessarily require a more in depth opinion from the court.

Given the ruling from the Iowa Supreme Court, the movement by the Vermont legislature, and recent polls that show rapidly increasing support for marriage equality in the United States, it seems unlikely that the California Supreme Court would allow the rights of a minority to be abrogated by a simple majority vote.

The article makes an interesting point. Would a ruling to uphold the constitutionality of proposition 8 really take two months to write an opinion for? Anyway, I'm moving to CA in a month, so there are few words to describe how elated I would be if proposition 8 is struck down just in time for my arrival.. :) :hug:

[WillParkinson]

1. I wish you the best of luck, but...

I'm not holding my breath yet. I REALLY want them to invalidate it. I want people to learn you cannot legislate rights.

[jody]

13. "you cannot legislate rights" if those rights are enumerated in a Constitution or unenumerated but

protected like those by the Ninth Amendment, i.e. pre-existing rights.

PA (1776) and VT (1777) identified pre-existing rights as "natural, inherent, inalienable/unalienable" rights.

Those rights that SCOTUS calls pre-existing rights obligate government to protect against infringement by a simple majority vote by voters or voter's representatives. That protects those rights exercised by a minority against the tyranny of a simple majority.

If a pre-existing right is incorporated in the Fourteenth Amendment, then states are bound by that same protection.

That's why I've asked before have groups in California argued that same-sex marriage is an inalienable/unalienable right protected by CA's Constitution?

SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

[FreeState]

2. I really, really want believe that is the case but

I'm not allowing myself the liberty of duing so. It would be just too painful for me to lose believing we were going to win.

[Redwraithvienna]

3. Yes i think it could take 2 months maybe even longer.

I guess the judge want to get it right this time.
And that takes time.

[ProgressiveProfessor]

4. I don't think it will be struck down. It will have to be overturned via the ballot box

The California Supreme Court, Calif. Secretary of State, University of California, and the State AG have used some pretty tortured logic to down check or get around iniatives they don't like. Its the wrong approach and has led to new initiatives being written that are unassailable under current California law/precedent and there is no leeway in their implementation. That is exactly how Prop 8 was written.

The right approach is to have them overturned in a new initiative. With proper planning, they can be during a special election like the current approach is being done which will give them a higher chance of success.

Its not like I agree with Prop 8, 209, etc, but think we should be reversing them at the ballot box which makes future court challenges as untenable as they are with Prop 8.

[t0dd]

5. There is no tortured logic

A majority should not be able to strip a fundamental right away from an oppressed minority. Our founding fathers knew this. The CA Supreme Court can and should strike this down. Up until now, a revision has been defined as a far reaching change in overall government structure, but there is no reason why the CA Supreme Court can't broaden their understanding of what constitutes a revision. The rights of gays and lesbians shouldn't be a popularity contest. Of course, if it is struck down, gay marriage opponents will probably appeal to the SCOTUS.. but they might decide not to hear the case.

[ProgressiveProfessor]

6. I did not say the case against Prop 8 tortured logic, but there have been clear attemtps to

circumvent other propositions by pols and other groups unwilling to do the right thing and get it reversed at the ballot box. Case in point being Prop 209.

I like many others consider the "revision" approach weak and unlikely to succeed. The only way to lock this down permanently will be another initiative in 2010. Its already in the works. Because it will be an initiative and not a legal argument from justices who can be voted out etc, it will be much harder to attack.

[greeneyedboy]

18. Violation of separation of powers AND strips fundamental rights from a suspect class.

While the oral arguments were a bit harrowing (and the A.G. rep's performance abominable), I still think the petitioners' case is strong.

The court has quite a conundrum to deal with, but I take all the conclusive gloom-and-doom talk with a huge grain of salt.

Whatever happens, they are going to have to shed more light on what constitutes a revision, and what happens when two sections of the constitution completely contradict each other.

[tbyg52]

9. Ain't that the simple truth. nt

[donheld]

21. Have you studied Colorado's Amendment 2

And the court cases surrounding it?

[noiretextatique]

7. given the court's decision in last May

i don't see how it can possibly reverse its original decision by upholding Prop 8.

SAN FRANCISCO -- -- The California Supreme Court struck down the state's ban on same-sex marriage Thursday in a broadly worded decision that would invalidate virtually any law that discriminates on the basis of sexual orientation.

The 4-3 ruling declared that the state Constitution protects a fundamental "right to marry" that extends equally to same-sex couples. It tossed a highly emotional issue into the election year while opening the way for tens of thousands of gay people to wed in California, starting as early as mid-June.

http://www.latimes.com/news/local/la-me-gaymarriage16-2008may16,0,6182317.story

[tbyg52]

10. Sounds logical to me. Let's hope they *do* use logic. nt

[davidinalameda]

20. two separate issues

the issue before the court right now is whether or not the measure had to pass by simple majority or by a 2/3 vote


if it was an amendment to the constitution or a I believe a revision

amendment needs a simple majority but a revision takes a 2/3 vote

[Q3JR4]

8. Yes.

Maybe not because of a California Supreme Court ruling and maybe not because of a new ballot initiative, but eventually proposition 8 is doomed.

Q3JR4.

[joeybee12]

11. I don't think they'll invalidate it, but taking so long is actually a good sign...

...during oral arguments they seemed poised to uphold it, but now perhaps with recent developments, they are re-thinking this...

[Mike 03]

12. From what I've heard, the decision is imminent, and it should invalidate that toxic, poisonous and

unconstitutional proposition.

I just hope what I'm hearing is true.

Good luck to this precious community.

[ProgressiveProfessor]

14. All sides are hearing what they want to hear. The real solution will be another initiative in 2010

Though I disagree with it vehemently, I don't think it will be overturned.

[FreeState]

15. And then a final solution after that

the Constitution of California needs to be amended so a simple majority can not take away a minorities rights.

[ProgressiveProfessor]

16. That is what an initiative is in CA, a constitutional amendment

[FreeState]

17. Theres actually two types of initiatives in CA and two ways of Amending or revising the constitution

There are two subsets of initiative in California (only one is an amendment):

"California uses the direct initiative process, which enables voters to bypass the Legislature and have an issue of concern put directly on the ballot for voter approval or rejection. There are two types of initiatives that can be placed on the ballot: 1) statute revision, which requires signatures equal to five percent of the total votes cast for Governor in the preceding gubernatorial election, and 2) constitutional amendment, which requires signatures equal to eight percent of the Governor's total vote in the preceding gubernatorial election.
As new initiatives enter circulation or qualify for an election ballot, the Secretary of State's office will issue initiative status updates."

http://www.sos.ca.gov/elections/elections_j.htm

And then there is another way of amending the constitution (revision)

A Constitutional revision must originate in the legislature (thats what the No On 8 campaign is basing its case on)

Edit to add more info:

http://www.leginfo.ca.gov/.const/.article_18

CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION

SEC. 1. The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately.

CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION

SEC. 2. The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution. If the majority vote yes on that question, within 6 months the Legislature shall provide for the convention. Delegates to a constitutional convention shall be voters elected from districts as nearly equal in population as may be practicable.

CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION

SEC. 3. The electors may amend the Constitution by initiative.

CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION

SEC. 4. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.

[donco6]

19. I don't think they'll overturn it, unfortunately.

But I haven't given up hope completely.

[GodlessBiker]

22. This article gives me a little bit of hope. Thanks.