Archive for November 20th, 2008


Amendment vs. Revision: The Impact on Prop-8

November 20, 2008

The anti Prop-8’ers are attacking the new amendment the only way it can.  Three lawsuits have been brought to the California Supreme Court regarding the process of the Prop-8 initiative.  The opponents of Prop-8 contend that the language defining marriage as between a man and a woman is actually a revision to the Constitution and not an amendment.  Why is that a big deal?  Let me explain:

Via The Volokh Conspiracy:

Under the California Constitution, an initiative can be used for “amendments” but not “revisions”:

[Art. XVIII, § 1.] The Legislature …, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution ….

[§ 2]. The Legislature …, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution….

[§ 3]. The electors may amend the Constitution by initiative.

[§ 4]. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.

Ergo: Comparing section 1 with section 3 shows that, while the legislature may either propose an amendment or a revision, the initiative process may only propose an amendment and not a revision. I.e., if Prop-8 is an amendment then a simple majority by the voters is legitimate.  If Prop-8 is a revision then it should never have been put on the ballot; a 2/3 vote by the state legislature would be required.  This is confirmed in Raven v. Deukmejian, 52 Cal. 3d 336 (1990). 

In Raven, the California Supreme Court held that an “amendment” and a “revision” of the state Constitution is defined by a sliding scale hinging on two different factors: Quantitative Change and Qualitative Change to the Constitution.  The larger the change the more likely it is a revision.

1-Quantitative: A large change to the state Constitution would require commissions to “rewrite” portions of the state Constitution.  For example, in the 1960’s the California Constitution was almost 50,000 words; longer than any other state Constitution.  The California legislature commissioned a group to cut it down, which it did.  After the commission, the Constitution was cut down to 21,000 words.  The legislature had to vote on the change because it was so large and was deemed a revision and not an amendment.  In this case, Prop 8 only requires the edition of 14 words to the California Constitution.  It is not a large change and therefore should be seen as an amendment and not a revision.

2-Qualitative: This issue is much more difficult than quantitative. The opponents of Prop 8 make the argument that Prop 8 is discrimination of a “fundamental right” to a “suspect class” of citizens; because the “change” is so important to the Constitution, it should only be revised through legislative avenues.

(a)      Fundamental Right:  I cannot find the case, but marriage in California has been deemed a fundamental right (Loving v. VA) UNLESS stated otherwise. The 9th Circuit left the door open for an abridgment to the fundamental right of marriage; i.e., if otherwise stated.  The people of California stated otherwise on November 4th by a 52/48 margin.


(b)      Suspect Class: I have never found a case which said homosexuals, as a class, are suspect. The closest the Supreme Court has come to calling homosexuals a suspect class was in Romer v. Evans (the Colorado Prop II initiative). In that case, the Supreme Court told the Colorado legislature it could not write a law which disallowed legislation to specifically protect homosexuals (man is that a convoluted sentence). Even though the law was overturned, the Supreme Court admitted to using a rational basis test; most scholars suggest that the Supreme Court used some sort of scrutiny between rational basis and intermediate scrutiny. Rational basis judicial review, the lowest of all judicial reviews, has always been reserved for classes of people which are not suspect in the eyes of the judiciary.  In other words, homosexuals have never been deemed a suspect class by the Supreme Court.  If this case gets to the Supreme Court, it would have to overturn precedence and ignore stare decisis in the process if the Court wanted to call homosexuals a suspect class.

3-Another Argument:  However, the opponents of Prop 8 may make the argument that homosexuals are a “political unpopular group” like the hippies were in US Dept. of Agriculture v. Moreno. However, with the amount of legislation which has passed concerning hate crimes for beating up homosexuals (etc.), I do not know how that argument could be made.  Homosexuals are not a political unpopular group like the hippies or the Black Panthers in the 1960’s. 

Homosexuals are not a suspect class as they argue because very recent precedent cases in which the Supreme Court used a rational basis test when scrutinizing laws regarding homosexuals says so. (Romer and Lawrence).

In Conclusion:  Prop 8 is an amendment because it is both a minor quantitative and qualitative change to the California Constitution; marriage is only fundamental unless otherwise stated, and homosexuals are not a suspect class.

Either way, this is going to be a crazy year or so.



eHarmony Settles Lawsuit and Now Forced to Individuals Seeking Same Sex Relationships

November 20, 2008

The Wall Street Journal reports that online dating service, eHarmony has settled a lawsuit asserting that eHarmony violated New Jersey’s Laws Against Discrimination by not offering services to individuals interested in the same sex:

In what seems like a novel claim to our ears, the Garden State asserted that eHarmony violated the state’s Law Against Discrimination by not offering a same-sex matching service. New Jersey got involved following a complaint by Eric McKinley, a gay match-seeker in the state.

eHarmony has denied violating the law, claiming that its business model has been based on its expertise to date. The company says it has researched thousands of opposite-sex marriages to understand what makes opposite-sex couples compatible.

But, as a result of the settlement, eHarmony next year will launch a same sex matching service called Compatible Partners, which will be marketed in gay and lesbian media outlets, according to a FAQ that the company released today. The document makes clear that users of will not be matched with users of the new site,

As you can see, eHarmony, through this settlement, is being forced to enter into a new economic playing field that is already crowded. There is, and host of other niche sites which specifically cater to gay men and women. Forcing this sort of econmic undertaking is akin to forcing Wal-Mart to maintain a stock of foie gras and beluga caviar or as Michelle puts it, a meat eater suing a vegetarian restaurant because they don’t serve meat. This governmental intrusion by the Jersey AG is an affront to the basic tenets of economic liberty in this country.

It is unfortunate that eHarmony bowed to this pressure. I would have loved to see this work its way through the court system for determination regarding how much the government can interfere in a business model. In order to compete with established same sex dating sites, eHarmony is going to have to sink major funds into research and maintenance of this site which may very well be a financial sinkhole.

What’s next? If some adulterer who can’t find someone to cheat on his wife with at Ashley Madison (online dating for married peope) gets angry that eharmony doesn’t condone cheating, will he sue?

– Yossarian


California to Uphold the Will of the People?

November 20, 2008

As we posted yesterday (skip down one or two posts), the California Supreme Court is taking up the issue of the legality of Proposition 8, which 52% of Californians voted for. The issue appears to be whether or not the Proposition was an amendment (which is cool) or a revision (less cool):

All the suits argue that Prop. 8, drafted as a state constitutional amendment, makes such drastic changes that it amounts to a revision of the Constitution.

Unlike constitutional amendments, which can qualify for the ballot with signatures on initiative petitions, revisions can be placed on the ballot only by a two-thirds vote of the Legislature or a state constitutional convention.

The state’s high court has defined a constitutional revision as a fundamental change in government structure and has struck down only two initiatives as revisions.

The last time was in 1991, when the court overturned provisions of a measure that would have required California courts to follow federal standards on criminal defendants’ rights rather than relying on the state Constitution to grant broader rights.

Opponents of Prop. 8 argue that it is a revision because it deprives a historically persecuted minority of fundamental rights and leaves courts powerless to intervene.

The article notes that Justice Kennard was the only justice who voted to deny review of Proposition 8 and it may be  bad sign for opponents of the bill:

While both sides cheered the court’s decision to take up the cases, Kennard’s lone vote to deny review could spell trouble for opponents of Prop. 8.

Kennard is the court’s longest-serving justice, having been appointed in 1989, and has been one of its foremost supporters of same-sex couples’ rights. Without her vote, the May 15 ruling would have gone the other way. But she wrote Wednesday that she would favor hearing arguments only about whether Prop. 8 would invalidate the pre-election marriages, an issue that would arise only if the initiative were upheld.

“It’s always hard to read tea leaves, but I think Justice Kennard is saying that she thinks the constitutionality of Prop. 8 is so clear that it doesn’t warrant review,” said Stephen Barnett, a retired UC Berkeley law professor and longtime observer of the court.

For those seeking to overturn Prop. 8, “I would not think it would be encouraging,” said Dennis Maio, a San Francisco lawyer and former staff attorney at the court.

It will be interesting to see how this develops. Because it appears that validation or invalidation of prop 8 will turn on the technicality of revision vs. amendment, I don’t foresee this going federal. It is pure interpretation of state law.  There goes my theory of moderating an Obama Supreme Court appointee.


Franken Celebrates His Undereducated Voting Base

November 20, 2008

In this article, Angry Al’s lawyer pays homage to ACORN and the uneducated voter.

“People who voted for Coleman are more likely to have taken the SAT in their lifetime,” he said. “They’ve filled in circles. Franken voters are probably not college-educated. They’re new voters and immigrants. They’ve been brought in by groups like ACORN, from the inner cities. They’re more likely to make mistakes. I’ve bounced this off of minority people, and they agree with me.”

This celebration of the uninformed, coupled with the lack of awareness of Obama voters speaks volumes in a negative way about the future of the American voter. You can’t win a battle of ideas if the people you are trying to win over aren’t paying attention to the battlefield.

– Yossarian