Honest Prop 8 question - relax

[sandnsea]

Was this challenged based on pure civil rights, voters cannot institute an unConstitutional law.

OR was it challenged on the the revision vs. amendment basis, that the voters cannot revise the constitution and Prop 8 was a revision. That argument didn't make it through the Oregon Supreme Court either, which is why we have domestic partnerships instead of gay marriage or even civil unions.

Did anyone in Oregon, California or any other of these states with Constitutional Amendments make a legal argument directly against putting discrimination into a Constitution? If so, which case. If not, why not.

[pup_ajax]

1. re: Prop 8

It was challenged on the revision vs. amendment basis.

[AntiFascist]

4. It was also challenged under a separate argument by the state AG Jerry Brown...

who claimed that it was an unconstitutional amendment based on Article 1 Secton 1 of the state constitution which mentions inalienable rights of liberty and happiness. In fact, his argument stated that it WAS to be considered an amendment, just an unconstitutional one. The justices seemed to dismiss this as being too novel and "quaint" of an argument. Protection of civil liberties is now considered quaint.

[sandnsea]

5. That argument wasn't brought by plaintiffs

Right? The plaintiffs didn't argue that it was an unConstitutional amendment based on civil rights, Jerry Brown did. Is that right? Just trying to get my facts clear here.

There is still room for someone to make a strong argument on pure civil rights because it really hasn't been done, right?

[AntiFascist]

6. The attorney representing Jerry Brown was allowed to give his argument before the Court...

the question of whether Prop 8 affected the separation of powers (3rd question considered by the court) I believe was added after Jerry Brown made his decision. His decision rested on the issue of inalienable rights, which is clearly mentioned in Article 1 Section 1 of the state constitution (unlike the Federal Constitution, where rights are spelled out in the Bill of Rights). He seemed to be making the argument that the inalienable rights of liberty and happiness were at issue, and that the Fundamental Right of marriage spelled out in the CA marriage decision fell out from these. The only case law he could cite was from long ago, which the justices considered to be "quaint" and possibly outdated in light of other CASC decisions.

[sandnsea]

7. Thanks, I'll look at that part

So, we've got the revision vs amendment question, the separation of powers question - and what other question?

I stupidly thought they were just challenging the equality of it, should have known nobody goes to court like that.

[AntiFascist]

8. The other question involved the status of the existing gay and lesbian marriages n/t

[sandnsea]

9. Right. But the court upheld all the legal rights inferred

It only removed the "designation" marriage. There will be some sort of civil unions and all of those protections in California, see page 7.

http://www.scribd.com/doc/15825222/Prop-8-Decision-California-Supreme-Court

So that's something anyway.

[AntiFascist]

12. Couldn't there be a lawsuit filed....

against the issuance of "marriage" licences and civil marriage ceremonies performed by the state as being discriminatory, in light of this?

[sandnsea]

13. Right, they will have to be termed something else

So maybe California will just go to civil unions for all. Something will be done, so that's a tiny step anyway.

[sandnsea]

16. Here's more from the decision

Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
By clarifying this essential point, we by no means diminish or minimize the significance that the official designation of “marriage” holds for both the proponents and opponents of Proposition 8; indeed, the importance of the marriage designation was a vital factor in the majority opinion’s ultimate holding in the Marriage Cases, supra, 43 Cal.4th 757, 845-846, 855. Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess properly the constitutional challenges to the proposition advanced in the present proceeding. We emphasize only that among the various constitutional protections recognized in the Marriage Cases as 8 available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure.

[AntiFascist]

17. This statement is ridiculous:

"we by no means diminish or minimize the significance that the official designation of “marriage” holds for both the proponents and opponents of Proposition 8"

The official designation of "marriage" now holds nothing for the opponents of Proposition 8 except discrimination and bigotry. If they are "by no means diminishing or minimizing its significance", then it can only mean that they are upholding and endorsing state bigotry in all of its ugliness.

[onenote]

2. my understanding is that both the revision/amendment argument and inalienable rights

arguments were made

[tekisui]

3. It was the State Supreme Courts way of saying,

we are done with the issue, let the voters fight it out with years of ballot initiative. The Court ruled on the validity of the proposition, not on the discrimination.

[sandnsea]

10. Or have the legislature revise the Constitution n/t

[NYC_SKP]

11. There were three questions:

I don't think this is over by a long shot, we need a new Proposition and a better campaign in 2010.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Proposition 8 Cases

Background
California voters approved Proposition 8, a state ballot initiative, at the November 4, 2008, statewide election. Proposition 8 added a new section to the state Constitution which provides that "Only marriage between a man and a woman is valid or recognized in California." The day after the election, three lawsuits challenging Prop. 8 were filed directly in the California Supreme Court.

On November 19, 2008, the Supreme Court agreed to hear those cases. The court directed the parties to brief and argue the following issues:
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

In the order accepting the cases for review, the Supreme Court also denied a request to stay the operation of Proposition 8 pending the court's resolution of the cases, granted the motion of the official proponents of Proposition 8 to intervene in the action, and established an expedited briefing schedule. Briefing in the Supreme Court was completed on January 21, 2009. All briefs are available online on the Prop 8 page.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Eastern. http://www.courtinfo.ca.gov/courts/supreme/

The full copy of the opinion is available here: http://www.courtinfo.ca.gov/opinions/

:patriot:

[sandnsea]

14. No, you need the legislature to revise the Constitution

And be done with it.

[NYC_SKP]

15. Works for me.

Whatever it takes, sandnsea. :thumbsup:

[RetiredTrotskyite]

18. The bottom line here, I think...

that in the eyes of the court, the only thing that counts is that those straights who want marriage to be a straight monopoly be accomodated. If we are not able to have the same ceremony and name for our committments that everyone else is able to have, that is "separate but equal" and the Supreme Court of the US threw it out in the 1950s. But what wouldn't be accepted by others is supposed to be accepted by LGBTQ people--and they are supposed to be grateful to be discriminated against!