# Did the Cali SC Really Just Take the Teeth Out of Prop 8? **URL:** \ **Category:** Great Debates\ **Created:** [May 26, 2009, 7:57pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725 "2009-05-26T19:57:19Z")\ **Posts on this page:** 12\ **Page:** 5
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 28, 2009, 4:30pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/81 "2009-05-28T16:30:28Z")
> [@BrightNShiny](#): > > This is an important point that’s being glossed over in this thread. Under California constitutional jurisprudence (primarily due process jurisprudence), you can’t simply wipe out people’s vested property rights. I don’t understand this assertion. First, because a lot of laws do exactly that. Outlaw fireworks or .50 cal rifles. My property rights in fireworks and .50 cal rifles just were taken away. No making moonshine in the back yard? My still is pretty much worthless. Any law making X illegal interferes with my previously legal property right to X. Second, this is an amendment, a change, to the California Constitution, and with it the jurisprudence has to change as well. Are you going to say that a part of the Constitution is unconstitutional because it conflicts with another part? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 28, 2009, 7:09pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/82 "2009-05-28T19:09:35Z")
> [@alphaboi867](#): > > I know a constitutional _revision_ needs a 2/3rds majority in both house before going to the voters, but what’s a threshold for another _amendment_? The California Constitution may be _amended_ two ways: 1. A majority vote of the voters on an amendment which has been passed out of the Legislature by a 2/3ds majority of both houses, and 2. A majority vote of the voters on an amendment which was the subject of a petition signed by a number of voters equivalent to 8% of those who voted in the last gubernatorial election. So the only way the Legislature can do it is with a 2/3ds vote in both House and Senate. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 28, 2009, 7:13pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/83 "2009-05-28T19:13:28Z")
> [@BrightNShiny](#): > > This is an important point that’s being glossed over in this thread. Under California constitutional jurisprudence (primarily due process jurisprudence), you can’t simply wipe out people’s vested property rights. And when you get married, you get vested property rights. This is an incorrect statement of law. More correctly, it cannot be done without “due process of law.” Generally speaking, legislating something is considered “due process of law.” And no, it doesn’t mean that it will be necessarily considered a “taking” requiring compensation. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [May 28, 2009, 8:03pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/84 "2009-05-28T20:03:21Z")
> [@DSYoungEsq](#): > > This is an incorrect statement of law. > > More correctly, it cannot be done without “due process of law.” Generally speaking, legislating something is considered “due process of law.” And no, it doesn’t mean that it will be necessarily considered a “taking” requiring compensation. Nope, you’re the one making an incorrect statement of law. Simply passing legislation is not enough to meet due process requirements (and I specifically never mentioned takings, so I don’t know why you bring that up): > [@](#): > > …\*n determining whether a retroactive law contravenes the due process clause, we consider such factors as the significance of the state interest served by the law, the importance of the retroactive application of the law to the effectuation of that interest, the extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would disrupt those actions. In re Marriage of Bouquet (1976) 16 Cal.3d 583, 592 Perhaps my statement was oversimplified, but it’s not incorrect. You don’t get to simply wipe out vested property rights just by legislating. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [May 28, 2009, 8:09pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/85 "2009-05-28T20:09:45Z")
> [@jtgain](#): > > I don’t understand this assertion. First, because a lot of laws do exactly that. Outlaw fireworks or .50 cal rifles. My property rights in fireworks and .50 cal rifles just were taken away. No making moonshine in the back yard? My still is pretty much worthless. Any law making X illegal interferes with my previously legal property right to X. See my post above. > [@](#): > > Second, this is an amendment, a change, to the California Constitution, and with it the jurisprudence has to change as well. Are you going to say that a part of the Constitution is unconstitutional because it conflicts with another part? No, nothing has been rendered unconstitutional. What I’m saying is that you have to look at the entire constitution as a whole in determining an issue that is not explicitly covered by Prop 8. ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [May 28, 2009, 8:29pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/86 "2009-05-28T20:29:36Z")
> [@alphaboi867](#): > > I think we’re a generation away from a **gay Loving** v. Virignia. Sure, it’s always about sex isn’t it? 😃 ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [May 28, 2009, 9:24pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/87 "2009-05-28T21:24:54Z")
I’m going to clarify a bit here, since I think my posts have been unclear. The original point I was trying to make is that since Prop 8 didn’t clearly state that those 18,000 marriages were null and void, the court had to do a due process analysis, because you can’t simply ignore one part of the constitution. If Prop 8 had clearly stated that those 18,000 marriages were null and void, then the court might not have done a CA due process analysis at all, since that statement rendering the marriages null and void would have been part of the constitution. They might have done a Federal due process analysis, but I’m not sure that the result would have been the same as under CA’s due process clause. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 28, 2009, 9:31pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/88 "2009-05-28T21:31:59Z")
> [@BrightNShiny](#): > > Nope, you’re the one making an incorrect statement of law. Simply passing legislation is not enough to meet due process requirements (and I specifically never mentioned takings, so I don’t know why you bring that up): > > Perhaps my statement was oversimplified, but it’s not incorrect. You don’t get to simply wipe out vested property rights just by legislating. I didn’t say you could. But your statement was an assertion that you couldn’t legislate in a way that removed property rights. That’s incorrect, as a matter of law. You can. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 28, 2009, 9:39pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/89 "2009-05-28T21:39:10Z")
In addition, I’ll note that the case you cited resulted in the Court retroactively applying the law in question to terminate the nominal property rights acquired by the wife in the case. So I wouldn’t be bandying that case around if I were you in support of your position. 😉 ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [May 28, 2009, 9:40pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/90 "2009-05-28T21:40:52Z")
> [@DSYoungEsq](#): > > I didn’t say you could. But your statement was an assertion that you couldn’t legislate in a way that removed property rights. That’s incorrect, as a matter of law. You can. No, that wasn’t my statement. I never said you couldn’t legislate in a way to remove property rights. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [May 28, 2009, 9:42pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/91 "2009-05-28T21:42:01Z")
> [@DSYoungEsq](#): > > In addition, I’ll note that the case you cited resulted in the Court retroactively applying the law in question to terminate the nominal property rights acquired by the wife in the case. So I wouldn’t be bandying that case around if I were you in support of your position. 😉 I think it supports my position fine. If you want to remove vested property rights, you have to do a DP analysis. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [May 28, 2009, 11:04pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/92 "2009-05-28T23:04:31Z")
> [@Voyager](#): > > Garriage, here we come. > > (Shmarriage?) I’m calling it “Nighleose” |'nai li oʒ| until I get a better suggestion. [Previous page](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725.md?page=4)