# Is Proposition 8 unconstitutional? **URL:** \ **Category:** Great Debates\ **Created:** [December 21, 2008, 2:58pm UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191 "2008-12-21T14:58:22Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Strassia](https://avatars.discourse-cdn.com/v4/letter/s/e8c25b/32.png) [@Strassia](https://boards.straightdope.com/u/Strassia)\ **Post date:** [December 22, 2008, 4:57am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/21 "2008-12-22T04:57:40Z")
> [@jtgain](#): > > 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.. As I said it looks like it could be interpreted that way if a small change fundamentally affects the rest of the Constitution. Consider the two following changes: First to Article 1 Section 4, which reads: > [@California Constitution](#): > > SEC. 4. Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of > conscience does not excuse acts that are licentious or inconsistent > with the peace or safety of the State. The Legislature shall make no > law respecting an establishment of religion. > A person is not incompetent to be a witness or juror because of > his or her opinions on religious beliefs. we add a section 4.5 which reads “Religious freedom is only guaranteed to those who accept Jesus Christ as their lord and savior.” Second, to Article 1 Section 1: > [@CA Constitution](#): > > SECTION 1. All people are by nature free and independent and have > inalienable rights. Among these are enjoying and defending life and > liberty, acquiring, possessing, and protecting property, and pursuing > and obtaining safety, happiness, and privacy. We add a section 1.1 that says “The term ‘People’ shall refer only to white males, all others are not protected by this or any other portion of this Article.” The first, like Prop 8’s Article 1 Section 7.5 addition, only affects one section (although in a much broader way), but the second clearly affects the whole constitution, even though it is only one small sentence. It could be argued that any change to Article 1 (California’s Declaration of Rights), affects the whole document as it is the Article that sets the limits on what the rest of the Constitution, and the government can do to us, the citizens. Jonathan ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 22, 2008, 11:53pm UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/22 "2008-12-22T23:53:15Z")
> [@BrightNShiny](#): > > It doesn’t matter how you read the term. What matters is how the California courts read the term. Really? I thought I had absolute power in California :rolleyes: > [@BrightNShiny](#): > > Can you provide some support from California court cases that aligns with your view? No. I am just using the English language that we have all agreed upon and saying that a validly passed amendment regarding gay marriage, a “right” before 2008 unheard of in California, is not a revision of the entire constitution. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [December 23, 2008, 12:03am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/23 "2008-12-23T00:03:50Z")
> [@jtgain](#): > > No. I am just using the English language that we have all agreed upon and saying that a validly passed amendment regarding gay marriage, a “right” before 2008 unheard of in California, is not a revision of the entire constitution. Good for you. But the terms aren’t general language terms. They are legal terms.:rolleyes: ---
**Author:** ![Enola\_Gay](https://avatars.discourse-cdn.com/v4/letter/e/3ab097/32.png) [@Enola\_Gay](https://boards.straightdope.com/u/Enola_Gay)\ **Post date:** [December 23, 2008, 12:49am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/24 "2008-12-23T00:49:33Z")
> [@BrightNShiny](#): > > Good for you. But the terms aren’t general language terms. They are legal terms.:rolleyes: And even legal experts disagree as to how they should be interpreted. It will be interesting to see how the Supreme Court rules on this, but I feel almost certain (almost) that they will not nullify the 18k marriages that were entered into prior to prop 8’s passage. I can’t imagine how they could justify doing that since that wasn’t even part of prop 8. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [December 23, 2008, 12:56am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/25 "2008-12-23T00:56:34Z")
**jt** , as **BrightNChiny** makes clear, terms of legal art don’t necessarily have the same meaning as they might in common English usage. But it doesn’t matter, because yours is an absurd definition of “revision” anywayf. –Cliffy ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [December 23, 2008, 12:57am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/26 "2008-12-23T00:57:37Z")
Oops. That should read “an absurd definition of ‘revision’ _anyway_.” Now THAT is a revision. –Cliffy ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [December 23, 2008, 1:07am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/27 "2008-12-23T01:07:42Z")
> [@Enola\_Gay](#): > > And even legal experts disagree as to how they should be interpreted. Of course legal experts disagree. So I don’t think it’s unreasonable to ask someone to provide at least some semblance of a legal argument if they want to make an assertion about how the California constitution should be interpreted. Simply saying, “I looked the word up in a dictionary,” which is essentially what **jtgain** has done, is meaningless. Since we have court cases that define the language, then any argument about what the language means needs to start with those court cases. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [December 23, 2008, 1:10am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/28 "2008-12-23T01:10:39Z")
As to the jurisdictional issues, **Enola** and others are correct that if the California Supreme Court rules that Prop 8 violates the U.S. Constitution, that decision is reviewable by the U.S. Supreme Court (and would there be struck down), because it turns on the interpretation of federal rights, and the U.S. Court is the supreme arbiter of those rights. (But this won’t happen, because the California Court won’t rule in that way.) If the California Court overturns Prop 8 because it was an improperly passed change to the state constitution (turning on the amendment/revision distinction discussed here), then this ruling is final, as it, not any federal court, is the supreme arbiter of _California_ law. (So long as that law doesn’t run afoul of U.S. constitutional guarantees, which state-sanctioned gay marriage does not.) From what little I understand of the question under California law, it seems like Prop 8 should be overturned. However, as I am not a member of the California Supreme Court, I have no duty to either study the issue closely nor endeavor strongly to separate my personal feelings about the matter from the constitutional question at issue, and I have done neither. I also happen to believe that gay marriage is required by the U.S. Constitution, but this is as yet a minority position. –Cliffy ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 23, 2008, 1:18am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/29 "2008-12-23T01:18:10Z")
Are laws not supposed to be written in language that a “reasonable person” can understand? Otherwise they are unconstitutionally vague, no? ---
**Author:** ![Enola\_Gay](https://avatars.discourse-cdn.com/v4/letter/e/3ab097/32.png) [@Enola\_Gay](https://boards.straightdope.com/u/Enola_Gay)\ **Post date:** [December 23, 2008, 1:27am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/30 "2008-12-23T01:27:26Z")
> [@BrightNShiny](#): > > Of course legal experts disagree. So I don’t think it’s unreasonable to ask someone to provide at least some semblance of a legal argument if they want to make an assertion about how the California constitution should be interpreted. Simply saying, “I looked the word up in a dictionary,” which is essentially what **jtgain** has done, is meaningless. Since we have court cases that define the language, then any argument about what the language means needs to start with those court cases. No I wasn’t disagreeing with you at all but was implying that it is no surprise that lay persons are confused because not even legal experts can agree on how the language should be interpreted. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [December 23, 2008, 1:35am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/31 "2008-12-23T01:35:38Z")
> [@jtgain](#): > > Are laws not supposed to be written in language that a “reasonable person” can understand? Otherwise they are unconstitutionally vague, no? No, that’s not what the void for vagueness doctrine says, and in any case the doctrine applies to criminal laws, not to constitutional interpretation. ---
**Author:** ![Enola\_Gay](https://avatars.discourse-cdn.com/v4/letter/e/3ab097/32.png) [@Enola\_Gay](https://boards.straightdope.com/u/Enola_Gay)\ **Post date:** [December 23, 2008, 1:39am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/32 "2008-12-23T01:39:07Z")
> [@jtgain](#): > > Are laws not supposed to be written in language that a “reasonable person” can understand? Otherwise they are unconstitutionally vague, no? The constitution is vague and/or silent on many issues. That’s what courts are for…to interpret the language. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 23, 2008, 2:01am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/33 "2008-12-23T02:01:04Z")
So, a constitution is only for lawyers? Mere mortals shouldn’t even read the document because these strange words are far above our understanding? Where do you get that idea? From your fellow lawyers, or from judges who assumed the power to decide constitutional questions on their own? (Marbury v. Madison) ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [December 23, 2008, 2:05am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/34 "2008-12-23T02:05:52Z")
> [@jtgain](#): > > So, a constitution is only for lawyers? Mere mortals shouldn’t even read the document because these strange words are far above our understanding? Strawman. Why don’t you try responding to something anyone has actually said in this thread? > [@](#): > > Where do you get that idea? From your fellow lawyers, or from judges who assumed the power to decide constitutional questions on their own? (Marbury v. Madison) Instead of lecturing us about what the law is, why don’t you ask questions about how these things work? You might actually learn something. ---
**Author:** ![Enola\_Gay](https://avatars.discourse-cdn.com/v4/letter/e/3ab097/32.png) [@Enola\_Gay](https://boards.straightdope.com/u/Enola_Gay)\ **Post date:** [December 23, 2008, 2:13am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/35 "2008-12-23T02:13:02Z")
> [@jtgain](#): > > So, a constitution is only for lawyers? Mere mortals shouldn’t even read the document because these strange words are far above our understanding? > > Where do you get that idea? From your fellow lawyers, or from judges who assumed the power to decide constitutional questions on their own? (Marbury v. Madison) You need to understand that when the Constitution was drafted many of the issues we face today were not directly addressed since they didn’t exist. So what does the Constitution say about downloading music videos or copying dvds? Nothing, so when those issues arose a court had to interpret the Constitution. Same applies to gay marriage. The Constitution does not address it and I doubt our founding fathers ever imagined it would be an issue. But it is and the Constitution is silent on the issue. Hence the courts must decide how to interpret it. ---
**Author:** ![Enola\_Gay](https://avatars.discourse-cdn.com/v4/letter/e/3ab097/32.png) [@Enola\_Gay](https://boards.straightdope.com/u/Enola_Gay)\ **Post date:** [December 23, 2008, 2:49am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/36 "2008-12-23T02:49:18Z")
> [@Polycarp](#): > > A **validly passed** amendment to a constitution cannot be in violation of that constitution. > > But there are three factors entering into account here: > > 1. 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.** That’s absolutely true right now, but with some turnover and Obama appointments I can see this changing in a few years. As I interpret the US Constitution, gay marriage should be a right and any state law prohibiting it would thus be unconstitutional. If you look back at court rulings in history…we’ve come a long way. Think [Dred Scot](http://en.wikipedia.org/wiki/Dred_Scott), [Korematsu v US](http://en.wikipedia.org/wiki/Korematsu_v._United_States) or [Bowers v Hardwick](http://en.wikipedia.org/wiki/Bowers_v._Hardwick). Maybe I’m just a cockeyed optimist, but I feel certain that eventually the SCOTUS will rule that gay marriage is a Constitutional right. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 23, 2008, 4:12am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/37 "2008-12-23T04:12:14Z")
> [@Enola\_Gay](#): > > That’s absolutely true right now, but with some turnover and Obama appointments I can see this changing in a few years. I doubt it. Who, specifically, is going to “turn over” in a few years and affect the vote on SSM in the SCOTUS? Thomas? Alito? Scalia? Roberts? Those guys are the young ones. The more liberal members are the ones who will “turn over”, and that won’t make any difference at all. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [December 23, 2008, 4:12am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/38 "2008-12-23T04:12:59Z")
> [@jtgain](#): > > Are laws not supposed to be written in language that a “reasonable person” can understand? Otherwise they are unconstitutionally vague, no? The fact that something is expressed in technical terms doesn’t make it vague. I’m reminded of the people who complained that 0.999… shouldn’t equal 1 because they’re convinced “0.999…” should mean what they _think_ it means, not what it’s formally defined to mean. ---
**Author:** ![Enola\_Gay](https://avatars.discourse-cdn.com/v4/letter/e/3ab097/32.png) [@Enola\_Gay](https://boards.straightdope.com/u/Enola_Gay)\ **Post date:** [December 23, 2008, 4:28am UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/39 "2008-12-23T04:28:34Z")
> [@John\_Mace](#): > > I doubt it. Who, specifically, is going to “turn over” in a few years and affect the vote on SSM in the SCOTUS? Thomas? Alito? Scalia? Roberts? Those guys are the young ones. The more liberal members are the ones who will “turn over”, and that won’t make any difference at all. Well the odds of course are on John Paul Stevens, but I can dream can’t I? ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [December 23, 2008, 10:28pm UTC](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191/40 "2008-12-23T22:28:05Z")
> [@BrightNShiny](#): > > Strawman. Why don’t you try responding to something anyone has actually said in this thread? That’s not his style. –Cliffy [Previous page](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191.md?page=1) [Next page](https://boards.straightdope.com/t/is-proposition-8-unconstitutional/478191.md?page=3)