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.

One comment

  1. […] but verify: “Will California uphold the will of the people” – about the legal struggle for overturning the decision in […]

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