This article seems to be suggesting that Jerry Brown, among others, is making the argument that Proposition 8 is unconstitutional (under the California, not the US, constitution):
I was adamantly opposed to Prop 8 (though I’m not a California voter), but I don’t understand how Proposition 8 can be unconstitutional, since as a constitutional amendment, it is now part of the California constitution. So am I missing something? Is it possible Prop 8 will be declared unconstitutional and thrown out?
Well, just about anything could be ruled unconstitutional by the Supreme Court, even prior SCOTUS rulings. It’s just extremely unlikely.
So while Brown’s opinion may be out there I think it’s more likely to be informed by partisan preferences than by informed legal thought.
Mind you, I’d take a stab at appealing it because, you know, what the hell.
The point of law that Brown intends to use is a distinction apparently found in the Calfornia constitution as explicated in case law and appellate decisions, between amendments and revisions to the constitution.
One requires a 2/3 majority vote in both houses of the legislature as well as the electorate while the other requires only a simple majority vote by the electorate.
It will be Brown’s contention that Proposition 8 had the nature of the type of change that requires the much more difficult collection of votes and that it was, therefore, not a proper change to the constitution.
I only saw this argument raised yesterday and I have no idea what the text of the constitution or the various court decisions actually say, so I have no opinion regarding Brown’s efforts.
As I understand, there are two constitution changing methods. One is a revision, and one is an amendment.
Only revisions can remove rights. This was an amendment. The previous Supreme ruling was that marriage was a right.
I have friend whose expertise is constitutional law and he explained it to me this way:
There are 2 issues with the (un)constitutionality of Prop 8.
First it may violate the US Constitution which would render it “unconstitutional”. The example he used was that even if voters in the state of Alabama unanimously voted to amend their constitution to prohibit interracial marriage…that amendment to the state constitution would violate the US constitution and would thus be unconstitutional.
The other issue is whether or not a 2/3 majority is required to amend the California constitution as Tomndeb pointed out (prop 8 passed by a narrow majority).
So Prop 8 could potentially be thrown out for either of these reasons based on how the California SC interprets the language in our state’s constitution.
In the first case I would assume that such a question could go all the way to the US Supreme Court and I would expect the current court to say that Prop 8 does not violate the US Constitution (in a thread around here awhile ago I argued that I thought it clearly did but the justices do not consult me on these matters sadly).
On the second question however can that make it all the way to the US Supreme Court? If the California supreme court says it is a violation of the California constitution is there anything there for the US Supreme Court to take the case and (potentially) overrule it? I thought the US Supreme Court only hears issues relating to the US Constitution and that does not seem to fit the bill but I honestly have no idea what cases they ultimately can or cannot take.
Just read the link and it appears that Jerry Brown is opposing prop 8 based on the questionable practice of using the ballot measure amendment process to extinguish fundamental rights.
I personally have faith that the California Supreme Court will overturn prop 8 since they legalized same sex marriage in the past. I hope it’s not just wishful thinking on my part.
According to my constitutional guru, if (if,if,if) the California Supreme Court ruled that Prop 8 did indeed violate the US Constitution and was therefore null and void, the Protect Marriage bigots could then appeal to the SCOTUS. If the SCOTUS agreed to hear the case (a huge IF), they could then overturn the state court’s ruling.
As I understand it, if the California high court rules that amending the state constitution to deprive rights requires a 2/3 majority, then Prop 8 is null and void and the SCOTUS would not hear any appeals because it is not their job to interpret California’s constitution. If it turns out that way, the only recourse for the Anti-gay marriage proponents would be to start over and get it to pass by a 2/3rds majority.
Does anyone have a cite for this (that only revisions can remove rights)?
IANAL, but I was under the impression that revisions were only used to literally change the Constitution, and have nothing to do with removing rights.
(e.g., If I notice misspellings or grammatical problems in the Constitution, and want to correct them, I can try to change it via revisions. If I want to change the underlying substance of the text, I can try to change it via amendments.)
Your friend did not explain this as clearly as necessary, or he explained it clearly but you nonetheless failed to understand him correctly, or your friend’s expertise in constitutional law is not all that he’d have you believe.
A validly passed amendment to a constitution cannot be in violation of that constitution.
But there are three factors entering into account here:
A state constitutional amendment can be in violation of the Federal constitution. Perhaps the leading case is Romer v. Evans, in which Amendment 2 to the Colorado State Constitution was found to violate the “rational basis” test – the equivalent of getting a zero on a school exam where you get 10 points for writing your name correctly. While a few people have made arguments that Proposition 8 violates the Federal constitution, it seems unlikely that a SCOTUS majority would agree with them.
To be a valid constitutional amendment, a measure must be passed in accordance with the constitutionally specified procedure for amending that constitution. A proposed U.S. constitutional amendment which got a simple majority in both houses of Congress and was ratified by 26 states will not amend the Federal constitution – because it didn’t meet the criteria for passing such an amendment (2/3 majorities in both houses of Congress and ratifiction by 3/4 of the states). As several people have noted above, this is the key issue in California.
In short, Section 7.5 of the California State Constitution may or may not be a valid part of the state constitution. The issue is whether Proposition 8, which submitted it to the voters, was in fact a valid mode of enacting it, given its impacts on a right exercised by over 18,000 citizens.
Probably this. But can you clarify what I got wrong?
The question is whether Prop 8’s subject matter required an amendment or a revision. It’s not simply a question of the number of voters that voted in favor of the measure.
I understand that. I just didn’t bother restating it since tomndeb just did. Sorry it was confusing.
Here (warning pdf) is a detailed analysis of how to change the California Constitution published in 1991. It looks like the relevant part is here:
To me this does not explicitly answer the question. The court could interpret a change that removes a right as limited (the right is only enumerated in or affects only one provision) or broad(the article one rights directly affect all the following articles).
Jonathan
Prop 8’s sponsors are now trying to get the CA Supreme Court to invalidate the 18K marriages that already occured (does anyone remember them mentioning that part in their adds :rolleyes: ). How does that effect things? Does it make it more likely to be struct down?
IANACL…maybe one will stumble along… but my understanding is that all of this is really up to the California Supreme Court,…who can be very unpredictable. The pro 8 group says the ballot retroactively nullifies the 18,ooo same sex marriages in California (which the measure did not say explicitly) and the opposition says that even if prop 8 is upheld, it can’t be applied retroactively.
My hunch is that even if prop 8 is upheld, it will not be applied retroactively since the ballot measure was silent on that issue…and therefore voters didn’t vote for that.
I read the term “revision” to mean like 1787 in Philadelphia. Not just a change here or there, but a complete rewrite.
In other words, it prevents one ballot measure from saying, “The California Constitution is hereby deleted and replaced with the following…”
It seems like a stretch to say that this is a revision…
It doesn’t matter how you read the term. What matters is how the California courts read the term. Can you provide some support from California court cases that aligns with your view?
Here’s a blog page which has a link to Brown’s brief (pdf).
I just skimmed it, but it looks to me like he’s not making the amendment/revision argument. Rather, he is arguing that certain rights are so fundamental and inalieable, that they cannot be abridged by either amendment or revision, and may only be abridged through constitutional convention. Again, I just skimmed it, so if someone wants to read it and correct me, feel free.