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pecuniumIf, 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.
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.
no subject
Date: 2008-11-05 05:16 am (UTC)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?