Earlier today, proponents of Prop 8 filed motions with the California Supreme Court to invalidate the 18,000+ marriages performed for homosexual couples here over the Summer of Love after the court had overturned a previous ban on same-sex marriage, and before the passage of Prop 8 on Nov. 4th stripped marriage away from same-sex couples.
And a few hours later, California State Attorney General Jerry Brown filed motions with the California Supreme Court asking them to invalidate Prop. 8 because it is, among other things, “inconsistent with the guarantees of individual liberty” as dictated by California’s governing charter.
Although I opposed it and never wanted to see Prop 8 passed, it was written to specifically amend the Constitution of California, unlike the earlier Prop which simply passed as a law that the court struck down. But if the U.S. Constitution is the highest law of the land that the SCOTUS bases all its decisions on, how can the California Supreme court rule that the California Constitution is… unconstitutional?
Apparently the California Constitution allows for two different kinds of “changes”. Ballot initiatives are amendments, and “changes” through the legislative process are revisions. The key thing is that the Constitution only allows amendments to make certain kinds of changes. I believe that the principle is the amendments can only add things to the Constitution, whereas revisions are allowed to both add and remove things from the Constitution. So the legal argument is that the Constitution was amended in violation of the rules of amendments: only a revision can take the right to marry away from gays.
Edit: Ironically, this legal argument is helped a lot by the fact that the Supreme Court already overturned the law banning gay marriage. Without that precedent, the question of whether the Constitution gave gays the right to marry would have been up in the air.
As much as I despise Prop. 8, I haven’t been able to find anything in the California constitution that distinguishes an amendment from a revision. Article 18 covers amendment and revision. It says (in so many words) that amendment can be done by the voters or the legislature, and that revision may be done by the legislature or by a constitutional convention. I can’t find a definition of either term.
Here’s an anti-8 article that covers the main arguments of the amendment/revision distinction (from the anti-8 side). It lists the relevant court cases, so you might want to read those.
Or to criticize anybody for redefuckingfining marriage. I used to be live and let live, but I just cannot freaking stand the Mormon Church- founded by a charlatan (the church has paid afortune in recent years to cover up some of his shenanigans) who couldn’t keep his dick in his pants or even out of 14 year olds, based on a plagiarized holy book disproven by every single archaeologist who’s ever picked up a brush in the Americas, led by senile old farts who tend to get visions from God (or at least their keepers say they did) about the time that court orders and public opinion turns full force against them, racist to the core of their teachings, and an entire history predicated on getting as far away from the US government as possible and living in isolation yet now they want to dictate policy–
Just how the fuck do these Jesus Underroo wearing/Geronimo was an Israeli believing/Garden of Eden was in Missouri thinking/ephebophile con artist revering/“God believes polygamy is holy and absolutely mandatory for those who can enter it and non-whites get the deformed souls from Tattooine that no white folks would have— oops, God changed his mind on both [but then he’s just a man]” “I’m gonna be a god one day on a planet far far away” rationalizing doorknocking discriminatory Danite dangling desert dwelling dogooder dumbass fucktards get off causing people to lose legal rights?
But please don’t get me wrong: I love the people, I just hate their actions, beliefs, smugness, stupidity, complete negation of critical thinking, selective history, theological idiocy, Grand Canyon sized cognitive dissonances, racism, self-exoneration, and wholly undeserved sense of smug superiority. (Well, love may be an overstatement, but I definitely think some of their missionaries are hot.)
You aren’t the only one, and I derived some quiet satisfaction from the fact that, during the week after Prop 8 passed, I passed a Mormon missionary boy in the metro who cruised the living daylights out of me.
Leaving that aside, I have two legal questions:
Does the 14th Amendment not supersede this measure in any event? How is it not a “law which shall abridge the privileges or immunities of citizens of the United States”? I mean say what you will about SSM, Californians had the right to it once the state Supreme Court ruled, and the ballot measure takes that right away, unlike in the other states where same-sex marriage did not yet exist.
Even if the ballot measure were valid, why would it nullify existing marriages? After all, a same-sex marriage contracted outside the state would not be “valid or recognized” in California, but they can’t argue that the marriage is dissolved or annulled simply because the spouses enter, or move to, California. I would argue that the marriages in question may not be recognized, but California is unable to dissolve them as though they never took place. This would be relevant a) when California comes to its senses and b) for Californians who were married during legality and who move to other jurisdictions where it is recognized.
Because under the US Constitution, homosexuals are not a suspect class entitled to strict scrutiny. When the CA Supreme Court legalized gay marriage, they first found that under the CA Constitution, homosexuals were a suspect class entitled to strict scrutiny, and from that it reasoned that the gay marriage ban was unconstitutional.
That’s a question that has to be decided. Essentially, two parts of the constitution are now in conflict. CA can’t recognize gay marriages, but it can’t just simply wipe out vested property rights either. The wording of Prop 8 doesn’t clearly address this issue, so the court is going to have to decide.
I’m surprised this didn’t happen sooner, really. Still: fuckers. Hateful, meddling, presumptuous, conceited motherfuckers. What kind of diseased, spiteful heart does it take to tell thousands of committed loving couples “No, your love isn’t as worthy as mine, and now I’m going to take away the happiest day of your life”? Where do they get the fucking nerve?
So the 14th amendment only applies to privileges and immunities as relate to specific types of differences, not to citizens in general? Is there a list?
