Posts Tagged ‘gay marriage’


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.



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.


California Supreme Court to Determine Constitutionality of Amendment to its Constitution

November 19, 2008

The voters of the state voted to amend the Constitution to ban same sex marriages and now the California Supreme Court is going to see if that decision by the people was Constitutional: The AP Reports:

California’s highest court agreed Wednesday to hear several legal challenges to the state’s new ban on same-sex marriage but refused to allow gay couples to resume marrying before it rules.

The California Supreme Court accepted three lawsuits seeking to nullify Proposition 8, a voter-approved constitutional amendment that overruled the court’s decision in May that legalized gay marriage.

All three cases claim the measure abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.


The court directed Brown and lawyers for the Yes on 8 campaign to submit their arguments for why the ballot initiative should not be nullified by Dec. 19. It said lawyers for the plaintiffs, who include same-sex couples who did not wed before the election, must respond before Jan. 5. Oral arguments could be scheduled as early as March, according to court spokeswoman Lynn Holton.


But they also agreed that the cases present the court’s seven justices – six of whom voted to review the challenges – with complex questions that have few precedents in state case law.

Depending on how the California Supreme Court treats this, we may be seeing gay marriage get to the Supreme Court. By “depending,” I mean that the California Supreme Court has to consider very carefully which cases it is going to use in its decision. If the Supreme Court interprets federal law such as Romer v. Evans or Lawrence v. Texas, we will see a state interpreting shaky federal precedents which is pretty much a green light straight to the Supreme Court.

If oral arguments occur in March and we assume that PE-BHO won’t have to replace Justice Stevens or Breyer until the end of the year, we might actually ssee him put in a position where he will have to moderate his choice for next justice and maybe skip Judge Sotomayor.  Gay marriage as a national issue will not be goo for PE-BHO, especially among African-Americans. In California, African-Americans, who came out in numbers greater than ever before due to the presence of BHO on the ballot, were the deciding votes in getting Prop 8 passed.

UPDATE: The professors have an interesting take regarding whether or not the initiative itself to ban gay marriage was legal in the first place. 


Proposition 8 Protestors Getting Out of Control

November 18, 2008

This video is via hotair. Stories and videos like this have been coming out since election day and rather than dying down, they have only been escalating.  It’s as if all these angry liberals who wanted to vent at a McCain victory needed to put their hopechange frustration elsewhere. Michelle has a description of what happened:

After just singing and worshiping God for a while, Roger decided that we should all hold hands in a circle and continue singing. So we did.

Someone (Actually a person who came up and hugged and kissed some of us who he knew from the past) convinced some people that we were there to protest against the no on 8 campaign.

Then some guy who was dressed up like one of the sisters (The sisters of perpetual indulgence is a group of men who dress up like nuns and call themselves the spiritual authority of the Castro.) took a curtain-type thing (Which I think they use to curse people) and wrapped it around us.

Then a crowd started gathering. We began to sing “Amazing Grace”, and basically sang that song the whole night. (At some points we also sang “Nothing but the Blood of Jesus” and “Oh the Blood of Jesus”.) At first, they just shouted at us, using crude, rude, and foul language and calling us names like “haters” and “bigots”. Since it was a long night, I can’t even begin to remember all of the things that were shouted and/or chanted at us. Then, they started throwing hot coffee, soda and alcohol on us and spitting (and maybe even peeing) on us. Then, a group of guys surrounded us with whistles, and blasted them inches away from our ears continually. Then, they started getting violent and started shoving us. At one point a man tried to steal one of our Bibles. Chrisdene noticed, so she walked up to him and said “Hey, that’s not yours, can you please give it back?”. He responded by hitting her on the head with the Bible, shoving her to the ground, and kicking her. I called the cops, and when they got there, they pulled her out of the circle and asked her if she wanted to press charges. She said “No, tell him I forgive him.”

Afterwards, she didn’t rejoin us in the circle, but she made friends with one of the people in the crowd, and really connected heart to heart. Roger got death threats. As the leader of our group, people looked him in the eyes and said “I am going to kill you.”, and they were serious. A cop heard one of them, and confronted him. (This part is kinda graphic, so you should skip the paragraph if you don’t want to be offended.) It wasn’t long before the violence turned to perversion. They were touching and grabbing me, and trying to shove things in my butt, and even trying to take off my pants – basically trying to molest me. I used one hand to hold my pants up, while I used the other arm to hold one of the girls. The guys huddled around all the girls, and protected them.

The LA Times has discussed the issue going to the Supreme Court and getting decided by one man pretty much, Justice Anthony Kennedy. If such a thing were to happen, it would be the ultimate testament to overturning Marbury v. Madison (no, not all of us advocate that). The will of one man would override the majority of voters of the state of California who amended their Constitution.

To touch briefly on the subject itself, I (Yossarian, speaking for himself and no others on this site) don’t have strong feelings either way towards giving same sex couples visitation and inheritance rights beyond joint tenancy. What I do care about is keeping this as a state issue and not making it federal by amending the US Constitution or having a federal court make national law on the issue. We can cross that “full faith and credit” bridge when we get there. The best way to win over an idea is to change hearts and change minds. You can’t win concensus through fear by sending white powder to Mormon churches or attacking old ladies. I seriously doubt that Californians want this made into a law borne out of violent coercion.

Some ardent prosecutor can make a good political case for himself or herself out in Cali by getting on these protestors

Michelle has more on the escalating violence here, here, here and here.