CA Supreme court asked to go both ways on Prop 8

[BrightNShiny]

@kaylasdad99

But that carve-out, as you put it, appears to have been done on an ad hoc basis, rather than accomplished via duly-passed legislation. Can it be attacked on those grounds?

There’s an argument being made that this type of constitutional modification must come through the legislature (the amendment/revision argument we discussed above). If the CA Supreme Court accepts this argument, then that effectively ends the gay marriage debate in CA, since the political/ideological composition of the CA legislature makes it extremely unlikely that it will put a gay marriage ban on the ballot.

However, if the court rejects that argument, then things become a lot more complicated, because once that happens, Prop 8 is part of the California Constitution.

It’s a traditional rule of interpretation that you try to give maximum effect to all parts of a law or constitution. If there are provisions that seem to conflict, you try to read them in such a way that they don’t conflict. Just crossing out a part of the law or constitution is a last resort method to use, and courts really try to avoid this. If the CA Supreme Court rules that Prop 8 was validly passed, then it’s going to try to give as much effect to Prop 8 as possible.

[Polycarp]

Starving Artist – Lots of good constitutional scholars are not Originalists. Textualists, for example, to avoid the “activist liberal judges” issue.

I would consider it highly ironic if SCOTUS upheld 5-11/08 California gay marriages using the “sanctity of contract” doctrine from the White/Taft era.

[straight_man]

@Northern_Piper

We don’t have the distinction which you have between the federal Constitution and the state constitutions. We have the Constitution of Canada, which created the federal government and most of the provincial governments, assigns the legislative authority to each, and also puts exactly the same constitutional restrictions on both levels of government, via the Canadian Charter of Rights and Freedoms. In particular, the equality clause applies equally to the federal and provincial governments. There are no separate entrenched provincial constitutional documents equivalent to a state Bill of Rights, giving different equal protection rights than in the federal Bill of Rights.

[HIJACK]
There’s actually an interesting story behind the establishment of equality here. It’s covered by Section Fifteen, and sexual orientation is very specifically excluded from the list of protected classes. Trudeau just didn’t think Canada was interested, so he left it out. But the Supreme Court ultimately ruled in [URL=“Vriend v Alberta - Wikipedia”] that sexual orientation was covered under the term “sex”, an implausible justification at best. Needless to say, conservatives were not impressed, and it’s still cited as evidence of court supremacy and judicial activism in Canada. On the other hand, Premier Klein didn’t decide to use the Notwithstanding Clause to get around the decision, so it was partly a matter of legislature not using its power.
[/HIJACK]

[RickJay]

@straight_man

… that sexual orientation was covered under the term “sex”, an implausible justification at best.

That’s not precisely the decision. What the Court found was that the wording of section 15 was such that it primarily required equal treatment, not just on the grounds mentioned. Here’s the text:

15. Every individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

As you can see, if you parse the sentence, the primary clause simply says all persons have the right to equal treatment. Specific kinds of discrimination are noted as being particularly targeted, but there’s nothing there that says Sec. 15 is LIMITED to those grounds.

The court has ruled on more than one occasion that “Analogous” grounds of discrimination can be reasonably presumed to be prohibited by Section 15. In Andrews vs. Law Society of British Columbia, Mr. Andrews won a claim of discrimination based on his not being a Canadian citizen - you’ll note “Citizenship” is not mentioned in Section 15, but in the estimation of the Court it was, in that instance, discrimination analogous to the discrimination intented by Sec. 15 to prohibit.

[matt_mcl]

@straight_man

But the Supreme Court ultimately ruled in [ that sexual orientation was covered under the term “sex”, an implausible justification at best. [/HIJACK]

No, you’re thinking of Egan v. Canada, with the corrections RickJay made (IIRC, it was pregnancy that was ruled to be covered under ‘sex’, in Brooks v. Safeway). The decision in Vriend was that a government could discriminate by what it omitted from a law (in this case the Alberta Human Rights Act, which had intentionally omitted sexual orientation), and that relief from this could be granted under the Charter.

@RickJay

As you can see, if you parse the sentence, the primary clause simply says all persons have the right to equal treatment. Specific kinds of discrimination are noted as being particularly targeted, but there’s nothing there that says Sec. 15 is LIMITED to those grounds.

The court has ruled on more than one occasion that “Analogous” grounds of discrimination can be reasonably presumed to be prohibited by Section 15. In Andrews vs. Law Society of British Columbia, Mr. Andrews won a claim of discrimination based on his not being a Canadian citizen - you’ll note “Citizenship” is not mentioned in Section 15, but in the estimation of the Court it was, in that instance, discrimination analogous to the discrimination intented by Sec. 15 to prohibit.

Yes. Analogous grounds have also been found to include marital status (Miron v. Trudel) and the condition of being an Aboriginal living off-reserve (Corbiere v. Canada). Several other grounds have been found not to be analogous, such as a taste for marijuana, employment status, province of residence, membership in the military, etc.

Furthermore, Canadian jurisprudence is simply different from the traditions in the US; the “[URL=“Living tree doctrine - Wikipedia”]living tree](Vriend v Alberta - Wikipedia)” doctrine, which has existed since the Persons Case, says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times. As the Supreme Court said: “The ‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”

[Northern_Piper]

Just to add to RickJay’s excellent summary, in addition to citizenship and sexual orientation, the SCC has also held that marital status is a similar analogous ground, and also the category of Indian band members living off reserve, in certain situations relating to band governance. All four analagous grounds have been determined by the same analytical system, and in fact the principle that s. 15 is not limited to the enumerated grounds was set out in the very first Supreme Court decision on s. 15, the Andrews decision mentioned by RickJay. So the conclusion that sexual orientation is protected by sexual orientation is not an outlier, but part of a well-established area of interpretation of s.15 and the equality principle.

[ETA: I see matt got here before me.]

[Miller]

@jtgain

I would bet that, if left alone, in 10 years, SSM would have gradually become legal without much of a fuss. Since you all pushed the issue, now states are making the bans concrete in their constitutions…

You mean the laws would just sort of appeared on the books all by themselves, without anyone writing them or lobbying for their creation? That’s certainly a… novel… approach to legal theory, but I don’t think that’s quite how it works.