Prop 8

[pecunium]

If, God forbid, Prop 8 should pass, it might fail.

The argument to make is this... it's not an amendment to the costitution, it's a revision.

Because it, fundamentally, changes the relationship of a group of people and the state (since they have, per the constitution, discrimination such as this is prohibited)

Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 833-834:

For a revision to be found, “it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution. [Citations.]” (Legislature v. Eu, supra, 54 Cal.3d at p. 510, 28
6 Cal.Rptr. 283, 816 P.2d 1309, original italics.)

In re Marriages Cases (2008) 43 Cal.4th 757, the decision which affirmed the right of any two people to marry, the Calif. Supreme Court held:

In light of the fundamental nature of the substantive rights embodied in the right to marry—and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society—the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.

They went on to emphasize: In light of the fundamental nature of the substantive rights embodied in the right to marry—and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society—the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.

Since a host of other cases have made explicit rulings on the iherent rights of people to marry, this isn't a minor quibble.

So what does it take to revise the constitution?


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.

So, the California Supreme Court can be asked to consider if Prop 8 (should it, God forbid, pass) was properly presented as an amendement; because it changes, dramatically, one of the core values of the State's Constitution.

If, hope against hope we don't, this bastard passes; that's the place to put your time, effort and money. Because there is no way a revision will be passed out of the Legislature, much less be ratified by the people.

Comments

[tenderberry.livejournal.com]

I was wondering if there might be some grounds to void it if the hideous slime passed - I am hopeful that it will have died a gory death given OBAMA is our new Prez - damn - long time comin'!

[tenderberry.livejournal.com]

PS reposting that so others have hope - thanks Terry

[elf]

Have there been any precedents establishing the difference between an "amendment" and a "revision?"

I believe this would be a revision--because the protected-from-discrimination categories in CA include sex, race, religion, age, nationality etc. (and sexual orientation, but yeegods does that carry some baggage).

Imagine if the prop were phrased, "Only marriage between a [Christian person] and a [Christian person] is valid or recognized in California," or "Only marriage between a [white person] and a [black person] is valid or recognized in California," with same-race or other-religion partnerships having the option of "civil unions with the same legal rights" (but not, of course, federal recognition.)

There is no reason why "Only marriage between a [male person] and a [female person] is valid or recognized in California" is less discriminatory than those other two examples.

The Perez vs Sharp ruling in 1948 that struck down anti-miscegenation laws in CA has plenty of relevant notes.

# Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means.

# Legislation infringing such rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws.

# “It is a fundamental rule that no citizen should be deprived of his liberty for the violation of a law which is uncertain and ambiguous.” (And why would the law be ambiguous? For one thing, there is no legal definition of "man" or "woman" in CA; these are not fixed conditions. Prop 8 doesn't indicate what happens when one member of a married couple gets a sex change, nor how to deal with people whose gender doesn't neatly fit into a binary arrangement.)

# The freedom to marry the person of one’s choice has not always existed, and evidently does not exist here today. But is not that one of the fundamental rights of a free people?

[pdlloyd.livejournal.com]

Per Wikipedia, Arizona's Proposition 102 (http://en.wikipedia.org/wiki/Arizona_Proposition_102_(2008)) has passed. This is bad. Very, very bad. I am ashamed of my state.

[judith-s.livejournal.com]

The California Supreme Court rejected that argument, without comment, when it was raised as a reason to remove Prop 8 from the ballot. I doubt it'll win favor the 2nd time around.

Here is the article that gives you the initial analysis (http://www.metnews.com/articles/2008/legcomm061708.htm), and it's an interesting one.

As much as I hate Prop 8, I'm not sure it "necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution." It'll be an interesting legal argument to watch, though.

P.S. Here via pointer from Whump. And your post caused much fun legal research.

[rosefox]

More specifically, the California SC declined to hear the case, but they didn't reject it, and it's the first tactic being tried by equality supporters in hopes that the court was just saying "We only want to spend time on this bullshit if you people are actually stupid enough to pass it".

[pecunium.livejournal.com]

I've read that. I was unaware that the argument of revision was made.

Question, was that argument made before, or after, In re marriage was decided?

[judith-s.livejournal.com]

The argument was made after Proposition 8 was placed on the ballot, so well after the In re Marriages cases. Here (http://articles.latimes.com/2008/jul/17/local/me-gaymarriage17).

[fjm.livejournal.com]

I hope it will go to the SC under the "separate but equal" rubric.

[judith-s.livejournal.com]

Hope that it goes AFTER Obama has a chance to replace a couple of justices. Kennedy thinks gays are icky, and of course the Republican wing believes that the government should prohibit people's sex lives.

Separate but Equal

[lottalatte.livejournal.com]

Loving vs. Virginia's ruling anti-miscegenation laws were unconstitutional, for those who want to read more about the precedent for this argument in federal court.

There is also an obvious venue for an anti-establishment argument on first amendment grounds; since some religions recognize same sex marriages, this obviously establishes those that don't.

You have a third federal argument possible, since states cannot discriminate against the citizens of other states (under the privileges and immunities clause of Article 4), and at least one state recognizes gay marriage.

Re: Separate but Equal

[pecunium.livejournal.com]

The argument which gets made is, "no one is being discriminated against, everyone can marry someone of the opposite sex, no one can marry anyone of the same sex." It's arrant nonsense, but it's got lots of judicial support.

The religious grounds lose as well, if you have any doubt, look at the prohibition of polygamy in Utah.

The third, also loses, because the Defense Of Marriage Act (DOMA) allows states to refuse to recognise same sex marriages from other states. The Supremes have not heard a challenge to it, but there is/was precedent in the past with some states refusing to recognise marriages/divorces from Nevada.

Re: Separate but Equal

[judith-s.livejournal.com]

Ah but Loving & before it Perez addressed that exact question in overturning anti-miscegenation laws. The proponents said "not discriminatory, it applies to everyone equally." The court said that equality was a PERSONAL right, not a group right. Seriously, read Perez. It's a fabulous opinion. Or at least read its summary (http://en.wikipedia.org/wiki/Perez_v._Sharp).

Re: Separate but Equal

[pecunium.livejournal.com]

I agree, and yes, it's a good decision (I am not a lawyer, I do read the law... color me strange) the problem isn't the precedent, it's the interpretaion, and with this court (Alito... it's not unreasonable to strip search a 10 year old... WTF, as well as his/Scalia/Roberts/Thomas willingness to pay lip service to decisions, while gutting the actual rulings) it's not unreasonable to think they will find a way to uphold Perez, and Prop 8.

Better, if more painful, to wage the fight in-house, which a revision/amendment argument does; because that goes to the Supremes as a case about procedure, and they can't really pick it up, than to press a civil rights issue to this court.

Since they declined to hear it there is the possibilty they didn't think it an issue at the time (though I would think so, and the nature of Perez, and In re marriage, is such that the question does seem to me (as already evident) to touch on fundamental issues of the relationship of the state to people, and to rights which the constitution guarantees, so it's more than just adjusting how we pay our property taxes.

Re: Separate but Equal

[judith-s.livejournal.com]

I completely agree, hence my comment upthread about waiting until Obama has appointed a few more liberal justices.

Re: Separate but Equal

[pecunium.livejournal.com]

God forbid. The present court is more likely than not to rule it's perfectly fine; that it's perfectly equal, everyone who wants to marry someone of the opposite sex is allowed to.

Re: Separate but Equal

[fjm.livejournal.com]

It can be done in terms of the rights of the child, because thank god, the US finally signed up to that portion of the Geneva convention.

[kengr]

and even if it's found to not be a revision and actually takes effect, the reasoning given for allowing same sex marriage in the first place still applies.

http://kengr.livejournal.com/671627.html

[judith-s.livejournal.com]

I don't think I've seen the question addressed of what happens if two portions of the Constitution contradict each other. But you're right, there is one way of making those two portions of the Constitution match. And that is by prohibiting all marriage.

I'm very curious what the Supreme Court will do.

And remember that the marriage decision was a split 4-3 decision. I'm not sure that all of the majority would go along with the more radical view that this prohibits all marriage.

But I'm willing to support a legal challenge that pushes them in that direction.

[cynthia1960.livejournal.com]

As I said in my own lj a little while ago, there's an evil snarky part of me that would love to see that happen, just to see the proponents heads explode.

[kengr]

Well, the bit about the alternative to allowing same sex marriage being eliminating marriage is actually part of the decision (I'd quote it but all the old links no longer work).

So unless something changes the mind of one of the 4 who where in favor of the ruling, I don't see them *not* ruling that way again.

[pecunium.livejournal.com]

Yep, I think I said something to that effect a few weeks ago.

A consistent would hold that way; to prevent the contradiction, but the chaos which would ensue (because civil unions are not identical to marriage, and taxes, custody, guardianship, inheiritance, etc. all become problematic in the extreme if all of California's married couples are suddenly not more than civilly joined.

The court isn't likely to be willing to do that, esp. since all of them are married.

[silmaril.livejournal.com]

My ignorance is showing: I'm looking at the sentence "Delegates to a constitutions convention shall be voters elected from districts [etc.]" and I cannot see how that leads to the California Supreme Court. Do you mind explaining a little more?

[pecunium.livejournal.com]

It gets there because (though if the comment that the argument was made on the question of removing it from the ballot is true that makes for some interesting problems in bringing it again), the procedures for revising are very different from amending.

To revise requires that a proposal to revise be voted out of the legislature, with a 2/3rds majority, and then a committee is empanelled, and the revision is hammered out.

That becomes a proposal, which is submitted to the people for ratification.

An amendmet requires a few thousands of signatures, and a simple majority vote.

Which means that, should this be an actual revision, the proper process for doing it wasn't followed, and it ought be in effect.

[pkmorrison.livejournal.com]

Not to rain on the righteous, since I am totally in agreement that this is a subversion and denial of civil rights to a segment of the population, but isn't President-elect Obama opposed to gay marriage rights?

[clynne.livejournal.com]

Obama's position is ... nuanced. He is against prop 8, but is against gay marriage. I *think* it's analogous to someone saying "well, I personally don't like abortion but I think women should have the choice to make themselves."

[judith-s.livejournal.com]

No. It's closer to "messing with the Constitution to put in things which are not necessary is a bad idea."

I think the rules on changes to the constitution need to be updated to require a 2/3 majority. We really don't want to clutter it up with stupid things, or discriminatory things.

[clynne.livejournal.com]

You're right:
http://www.queerty.com/obama-prop-8-unnecessary-but-doesnt-believe-in-gay-marriage-20081103/