Top 5 reasons why Prop 8 will (or should) be stricken

[t0dd]

Source: Philadelphia Examiner

With all the doom and gloom surrounding the expected upholding of Proposition 8 by the California Supreme Court tomorrow, I thought it might brighten your day a little to look at my collection of the top 5 reasons the court will (or should) strike Prop 8.

1. Upholding Proposition 8 will make the California Supreme Court irrelevant.

Byron Williams wrote a brilliant article back in March that presents possibly the strongest argument for striking Prop 8. Williams said that upholding Prop 8 would mean the majority, however slim, becomes the ultimate arbitrator for what is just in the state; or as Ken Starr argued, it allows for the people to make bad decisions. Williams raises the very important question that if, by upholding Prop 8, the CA Supreme Court becomes selectively subordinate to the will of the people.

He says upholding Prop 8 makes the state Constitution inherently contradictory--equal protection, except in those cases when the majority objects. This is a dangerous possibility for any democracy, especially one that holds such a slim majority (Prop 8 passed by a measly 52%). But the margin of the majority is irrelevant if the court assumes its role.

2. Proposition 8 oversteps the limits of amending the state Constitution.

Calitics provides a thorough analysis of the limits of amending the California Constitution. It says,

"Imagine if a majority of the voters passed an initiative that amended the California Constitution to prohibit people of a minority faith from practicing their religion. We would not stand for this change because the fundamental purpose of our Constitution is to protect minority rights from being trampled by the majority. Proposition 8 is similarly flawed."

In the case of Livermore v. Waite (1894), the CASC ruled that an initiative can effect a change only if it is "within the lines" of the existing Constitution. In McFadden v. Jordan (1948), the court ruled that it may not “substantially alter the purpose” of the Constitution or attempt to “attain objectives clearly beyond the lines of the Constitution as now cast.”

An initiative is a revision rather than an amendment if it changes the underlying principles of the existing Constitution. The express purpose of Proposition 8 is to take away a person’s right to marry someone of the same gender. The implicated right —- the right to marry the person of one’s choosing —- is protected by California’s Constitution as fundamental and inalienable. Although it is not an expressly enumerated in our Constitution, the right to marry is embodied in the right to privacy and it is a component of the right to liberty protected by the due process clause (as right to privacy is similary emodied in the United States Constitution).

...

3. Striking Proposition 8 will help put the brakes on the runaway ballot initiative process that has ruined California's politics and economy.


Ballot initiatives like Proposition 8 have stripped California of representative government. The majority is allowed to make crucial decisions they are not qualitifed to make. What is the point of electing legislators if they never make any decisions on our behalf?

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4. The language of Proposition 8 is too ambiguous.

Prop 8 does not deny the existence of same-sex marriage, it merely says they are not recognized in California. Article 1 Section 7.5 of the state Constitution now simply reads "Only marriage between a man and a woman is valid or recognized in California" and took effect November 5, 2008.

What of the 38.000 legal marriages performed in California before November 5th? What about same-sex marriages performed elsewhere? Prop 8 does not call for the eradication of these marriages (although Ken Starr argued for that in oral arguments), and it doesn't prevent them from being performed in California in the future.

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5. Striking Prop 8 will put the final nail in the coffin of right-wing religious extremism control over the GOP.

The right wing is desperate. It has no clear leader, it has lost the White House and Congress, and it is losing on gay rights issues. Paul Krugman says "the GOP has been driven mad by lack of power".

Striking Prop 8 will be a heavy blow to the right wing extremists who were so instrumental in getting the ballot initiative passed. In fact, it could be a fatal blow.

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Read more: http://www.examiner.com/x-4107-Gay--Lesbian-Issues-Examiner~y2009m5d25-Top-5-reasons-why-Prop-8-should-be-overturned

[Ioo]

1. as one of the 18000. I hope this is right. but we will see.

[bluedawg12]

2. Our thoughts and prayers to everyone of the couples in California

who were married UNDER LAW and just happen to be gay.

The Court must do the right thing!

[t0dd]

3. Some analysis (because I have too much time on my hands)

1) Uphold Prop 8
2) Strike Down Prop 8

Assumptions
* Chin and Baxter vote to uphold prop 8 in every outcome
* Werdegar and Moreno vote to strike down prop 8 in every outcome
* Corrigan, Kennard, and George are equally unpredictable (Kennard and George both voted to legalize same-sex marriage last year, but Corrigan did not. However, she pointed out that she personally believes same-sex marriage should be legal and also said in her dissent last year that she would override the will of the people if the Constitution compelled her to do so)

Outcome 1
1) Corrigan, Kennard, George, Chin, Baxter
2) Werdegar Moreno

Outcome 2
1) Chin, Baxter
2) George, Corrigan, Kennard, Werdegar, Moreno

Outcome 3
1) George, Chin, Baxter
2) Corrigan, Kennard, Werdegar, Moreno

Outcome 4
1) Corrigan, Kennard, Chin, Baxter
2) George, Werdegar, Moreno

Outcome 5
1) Corrigan, Chin, Baxter
2) George, Kennard, Werdegar, Moreno

Outcome 6
1) George, Kennard, Werdegar, Moreno
2) Corrigan, Werdegar, Moreno

Outcome 7
1) Kennard, Chin, Baxter
2) George, Corrigan, Werdegar, Moreno

Outcome 8
1) George, Corrigan, Chin, Baxter
2) Kennard, Werdegar, Moreno

I personally believe Corrigan was leaning towards striking down proposition 8 based off of what I heard during oral arguments. She never made any suggestion that she'd be opposed to extending what the court defines a revision as, among other indicators. Let's assume she votes to strike it down. That leaves us with 4 possible outcomes.

Outcome 2
1) Chin, Baxter
2) George, Corrigan, Kennard, Werdegar, Moreno

Outcome 3
1) George, Chin, Baxter
2) Corrigan, Kennard, Werdegar, Moreno

Outcome 6
1) George, Kennard, Werdegar, Moreno
2) Corrigan, Werdegar, Moreno

Outcome 7
1) Kennard, Chin, Baxter
2) George, Corrigan, Werdegar, Moreno

Next, Kennard was very tough on the petitioners (those seeking to overturn the same-sex marriage ban) during the hearing. Let's assume she votes to uphold it.

Outcome 6
1) George, Kennard, Werdegar, Moreno
2) Corrigan, Werdegar, Moreno

Outcome 7
1) Kennard, Chin, Baxter
2) George, Corrigan, Werdegar, Moreno

George seemed reluctant to adopt the revision theory. He made several comments about the CA constitution being just too easy to amend, and that, maybe, the best way to resolve proposition 8 would be for the voters to establish a new initiative process. However, he also seemed concerned when Ken Starr advanced his theory that the people are sovereign no matter what. That the equality clause may be enforced only when the majority say so. That freedom of speech, freedom to marry, whatever, are subject to the whims of the political process.

If I had to guess, I'd go with Outcome 7 :shrug: But it should definitely be one of these 8.

[ColbertWatcher]

4. Interesting analysis. n/t

[TimesSquareCowboy]

5. I wasn't aware of #2, I thought it was wide open for referendums.

That's interesting, now I have some hope it will be struck down.

[LeftHander]

6. I believe that the constitutional argument will prevail....

Equal Protection under the law is fundamental of any states constitution.

I can't imagine legal minds throwing that away in favor of mob rule.