Comments on: California Supreme Court to Review Prop. 8

By: Craig R

Craig R — Sun, 23 Nov 2008 12:00:26 +0000

From what I gather, the challenge is that this is not a simple amendment to the CA Constitution, but a structural revision. And in California structural revisions can only be put on the ballot by the legislature

This amendment, if allowed to stand, voids two previous provisions in the CA state Constitution — Equal protection, and (because the amendment declares that previously recognized same-sex marriages would not be recognized (the language of the amendment specifically precludes recognition)) it violates the CA state Constitution ban on ex-post facto laws regarding *contracts*

And settled California case law specifically recognized a marriage as a valid legal contract that arises from the personal relationship between two people.

By: FundamentallyFlawed

FundamentallyFlawed — Fri, 21 Nov 2008 06:06:41 +0000

You’re right, Alexa—thanks for the clarification. I should have said that the MAIN reason we’re not banking on this is that the CA Supremes have traditionally been reluctant to make this sort of ruling; in eight previous cases, only two have been overturned based on this type of argument.

By: Alexa

Alexa — Fri, 21 Nov 2008 02:21:36 +0000

FF, they threw it out before the election because courts don’t like taking up cases where a law hasn’t taken effect and therefore have no basis for the suit to begin with. It had nothing to do with the merits ot the argument that was presented, and therefore no conclusions can be drawn about what the court might do based on the previous ruling.

By: FundamentallyFlawed

FundamentallyFlawed — Fri, 21 Nov 2008 01:52:58 +0000

Sean, this same challenge was brought to the CA Supreme Court before the election, and they threw it out; that's one reason we're not placing a tremendous amount of hope in this suit. Also, the "no on 8" folks aren't the ones talking about removing judges; that's the "yes" people, threatening to recall the justices if they do indeed void Prop 8. And the process of placing a measure on the 2010 ballot to repeal the new amendment is well underway. You can get up to speed here and here. Gruntled atheist, the current feeling among legal scholars who work for marriage equality is that taking this to the SCOTUS would be far too risky at this point, and could end up setting gay rights back by decades. Jill, just FYI, it was a 4-3 decision (not 5-4). Aren't I just a pedant today? Yuck. Sorry. I've been immersed in this stuff for much too long now (and still not long enough!).

By: Sean

Sean — Thu, 20 Nov 2008 18:03:42 +0000

I find it rather irritating that these activists are taking to the streets and launching protests AFTER passage. Had they done all this before the election–when it mattered–then maybe they wouldn’t be in this situation.

My very limited understanding of the underlying legal claim is that proper procedures were not followed to enact the amendment (something along the lines of an amendment cannot be put on the ballot by referendum–only the legislature has that authority). If that’s the case, fine the Court can void it. If not, the proper response is not to try to remove the judges. The proper response (and something I’ve heard surprisingly little about) is to put an amendment to repeal this amendment on the ballot in the next election. And then maybe do something to encourage it’s passage.

By: marilove

marilove — Thu, 20 Nov 2008 16:08:14 +0000

Gruntled — this would be a pretty great precedent, at least. I’m of the mind that we have to start small, at the state level, and move our way up. If we start at the national level too soon, we run the risk of gay marriage being banned nationally, as someone above said. That is scary and worse than the way things are now. Steady as she goes!

By: cy

cy — Thu, 20 Nov 2008 15:54:54 +0000

Let’s hope they go the right way on this.

Setting aside our preference for the ultimate outcome, is anyone familiar with the legal analysis in distinguishing between a constitutional revision and a more limited amendment? Does this line of argument have more teeth than a federal equal protection claim?

By: gruntled atheist

gruntled atheist — Thu, 20 Nov 2008 05:00:49 +0000

Cara and Rebecca, thanks. I’ve been wondering since the subject and surely you are right since that is the route being taken. But it is so unjust that even if the correct side wins in California, there are forty seven states to go to achieve a right that everyone should have without question. Anyway, thanks.

By: Hugo

Hugo — Thu, 20 Nov 2008 04:34:34 +0000

It’s a mostly Republican appointed court (six of the seven are GOP appointees, but only a couple of ‘em are real ideologues.) And I like their chances in a recall — I don’t think Mormon lighting strikes twice. Chief Justice of California Rose Bird was recalled in 1986, but she was a difficult figure and took a very unpopular anti-death penalty stance at a time when the state was 75-25 in favor of capital punishment. With the state this divided, no way the justices get recalled today if they throw out 8.

By: SunlessNick

SunlessNick — Thu, 20 Nov 2008 03:16:57 +0000

As Cara said, fingers crossed big time.