Starting in 2.5 hours from now, the California Supreme Court will hear arguments on whether or not Proposition 8 will be overturned. The legislature, the governer, and the attorney general all say that it should, along with many other groups. Their argument is that it amounted to a revision of the California Constitution (since it was the first time rights had been taken away from a minority via amendment), and needed to go through the revision process, which requires legislative approval as well as popular approval.
Those who disagree say that it was a simple amendment and was properly passed. Arguing for the defense is Kenn Starr (Yes, that Kenn Starr) on behalf of the Alliance Defense Fund, a religious legal organization who argued against granting marriage rights to same-sex couples a year ago. Last year they were joined by an attorney for the Governator, and an attorney from the Attorney Generals office. This year they are there by themselves.
The court has 90 days to rule, but the LA Times has suggested that we may have a ruling as early as this afternoon.
IANAL, but personally, I think that Prop 8 should be overturned, because it represents such a large change in constitutional thinking that it is equivalent to a revision. It will be hard to convince me otherwise since this affects me personally, but I am willing to hear arguments on why it would be better to try and fix this via the initiative process (the only other way it can be changed. The legislature is essentially powerless at this point.)
I don’t think you’ll get much in the way of GQ answers. Personally, I think it should be overturned sharpish. However, I suspect it will take more than one afternoon.
ETA: …and you’re not in GQ, so that would make perfect sense. Whoops.
I’m not that knowledgeable on California constitutional law, but the whole thing seems like a clusterfuck to me. The idea in the first place of amending the consitution without a super majority is problematic. But then to back door in overturning it also seems worrying.
The California legislature isn’t powerless in this by the way. While they cannot recognize gay marriage, there are multiple other possibilities, which could have similar effects. They could, for example, derecognize all marriage in California and shift the rights attached to civil unions, It would create an almighty nationwide explosion, but it might be what we need.
I wish 8 had never been passed. I also could be wrong and the right legal decision might be overturning it as claimed. But doing it that way makes me very suspicious.
I don’t think it should be overturned. Well, let me clarify. I think it was a bad amendment, a discriminatory amendment, and one that never should have been passed. But, that being said, it was an amendment and not a revision. See Raven v Dekmejian (that a revision occurs when it causes a “far reaching, fundamental changes in our governmental plan”, but that it’s an amendment if it grants or takes away an individual right). See also In re Lance W. (a provision reducing California’s exclusionary rule was an amendment) and People V Frierson (a provision limiting the definition of “cruel and unusual” punishment in capital cases to the more restrictive federal definition rather than a more generous California one was an amendment and not a revision).
Actually, the Attorney General’s office is not arguing that it is a revision. It is defending the notion that it is indeed an amendment. However, their argument for overtuning 8 is based on the Article 1 provision having to do with the deprivation of “liberty” in the state constitution, which they’re asserting is violated by the proposition. So anti-8 advocates have the same goal, but different legal tactics today.
Can someone cite the precedent that they are using, I believe it is some sort of Amendment that owuld hav allowed housing discrimination that the court ruled was not legitimate. Form the sixties I beleive.
I’ll be happy if it’s overturned, but I think in the long run it’s better for human rights advocacy that it is overturned by initiative rather than by the judiciary. If it’s overturned now, we’ll have endless complaints from its supporters that judges are acting against the public will, and they’ll be right. If Prop 8 gets revoked by popular mandate, then it will be a true victory.
Of course, it will be disturbing if a simple majority vote is sufficient to remove rights from people. Would it be possible to make a “due process” complaint in federal court against Prop 8?
We had a good discussion on that question here a few months ago. Personally I want to say that should be possible but the legal route on that question seems murky at best.
I do not think it changed from the EP arguments. I forget. I was sloppy in my response because they are both in the 14th Amendment and I conflated the two.
The problem is, the US Supreme Court hasn’t found an equal protection or due process protection for gays in the federal constitution. So, if the California Supreme Court find that the proposition violates federal rights, that would be overturned by the federal courts before the ink is dried on their decision.
And it can’t violate California equal protection or due process rights for gays, because a constitution can’t violate itself. So this isn’t a question of the merits of gay marriage. It’s just a question of whether the way California changed their constituion to ban gay marriage was proceedurally correct. So any argument against Prop. 8 at this point has to be a proceedural argument.
I wasn’t able to watch the arguments, but what I heard was that it didn’t look good for the anti-prop 8 side. The next step is to get an initiative on the ballet restoring marriage equality in California. I imagine that we will see one in 2010 or 2012. Of course, if it passes, then there will be a counter ballot 2-4 years afterwards. Due to the CA constitution being ridiculously easy, this could go on for awhile.
Less clear to me was what the status of existing CA SSMs will be. It seems that the justices were less eager to declare them void, since there was no language to that effect on the ballot. On the other hand, it seems like a ridiculous conclusion that those 18,000 marriages are valid, but ones from other states aren’t. What if you got married in a state like Massachusetts or in Canada while they were valid in CA?
What about the legality of the 18,000 same-sex marriages performed between June and November last year? I only managed to listen to part of the arguments on Out Q, and didn’t hear that discussed. The Prop-8 sponsers are still arguing that those marriages are no longer to be recognized, aren’t they?
The Prop-8 sponsors did indeed argue that, but from what I read the justices weren’t as sympathetic on that point. The problem for me is that if prop-8 stands, letting the marriages stand seems like a ridiculous contradiction.
