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> Prop 8 and the California State Constitution, Should the CSC invalidate Prop 8?
entspeak
post Nov 16 2008, 06:26 PM
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A suit has been filed with the State Supreme Court by the government of the city of San Francisco to invalidate the amendment created by the passage of Prop 8.

Now, to be clear, this debate is not about the nature of homosexual relationships, but about a question of constitutional law.

Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?
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CruisingRam
post Nov 16 2008, 06:51 PM
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QUOTE(entspeak @ Nov 16 2008, 10:26 AM) *
A suit has been filed with the State Supreme Court by the government of the city of San Francisco to invalidate the amendment created by the passage of Prop 8.

Now, to be clear, this debate is not about the nature of homosexual relationships, but about a question of constitutional law.

Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?


Question for clarity-

when an amendment is passed to actually amend the constitution, as in Prop 8- isn't the constitutionality of the Prop moot? I would think only the USSC could now strike down Prop 8?
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DaytonRocker
post Nov 16 2008, 07:06 PM
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QUOTE(entspeak @ Nov 16 2008, 01:26 PM) *
A suit has been filed with the State Supreme Court by the government of the city of San Francisco to invalidate the amendment created by the passage of Prop 8.

Now, to be clear, this debate is not about the nature of homosexual relationships, but about a question of constitutional law.

Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?

No.

Instead, this needs to go to the Supreme Court. Even if the California courts said gay marriage is ok, you still have 41 states saying they don't exist. This has now become more than a states issue. All states have rejected gay marriage when brought to the voters. But we have individual courts trying to override the will of the American people - just like what is happening with Prop 8.

Let the Supremes settle it.
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Blackstone
post Nov 16 2008, 07:08 PM
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QUOTE(CruisingRam @ Nov 16 2008, 01:51 PM) *
Question for clarity-

when an amendment is passed to actually amend the constitution, as in Prop 8- isn't the constitutionality of the Prop moot? I would think only the USSC could now strike down Prop 8?

As this article explains:

QUOTE(Tucson Observer)
The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works. Through the initiative process, voters can make relatively small changes to the constitution. But any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters.

Since Proposition 8 was not submitted to the state legislature before passage, the question that remains is whether or not the amendment fundamentally changed the underlying principles of the state constitution. I would argue that it did not. It merely enshrined what for generations in California had already been understood to be the definition of marriage.

True it is that the state's official legal definition ("a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary") did not mention gender, so you could take it literally and say that it was open to both same-sex and opposite-sex relations. But by the same logic, you could also hold that it was unlimited as to the number of spouses, since it mentions nothing about number either. As it was, it was universally interpreted, up until very recently, to mean exactly what Proposition 8 said it means, and exactly what it had meant everywhere else in the country: one man, one woman. Therefore, Proposition 8 doesn't really change anything, and does not violate the terms of the initiative process.
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entspeak
post Nov 16 2008, 07:09 PM
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QUOTE(CruisingRam @ Nov 16 2008, 12:51 PM) *
Question for clarity-

when an amendment is passed to actually amend the constitution, as in Prop 8- isn't the constitutionality of the Prop moot? I would think only the USSC could now strike down Prop 8?


No. According to the Article 18 of State Constitution, California has two ways in which to change its constitution, via amendment and revision. The State Supreme Court would be interpreting that Article of the Constitution. Their determination could invalidate the passage of Prop 8.

QUOTE
the question that remains is whether or not the amendment fundamentally changed the underlying principles of the state constitution. I would argue that it did not. It merely enshrined what for generations in California had already been understood to be the definition of marriage.


It has been determined by the California Supreme Court that homosexuals are suspect class with protected under the Equal Protection Clause of the State Constitution and that, according to the Equal Protection Clause, the right to marry can't be restricted solely based on sexual orientation. And - as I stated in the other thread, Blackstone - in California, the right to marry is the right to join in marriage with the person of one's choosing. This means that the choice can't be restricted based solely on sexual orientation.

It has long been held that it is within the jurisdiction of the courts to make determinations regarding the Equal Protection Clause in order to protect an unpopular minority from the will of the majority. Allowing the restriction of rights for a suspect class via a bare majority undermines the Equal Protection Clause itself and is, therefore, a substantial change. It would mean, for example, that the people of California who voted - via a simple majority - for the interracial marriage ban could have passed - via a simple majority - an amendment to the State Constitution to keep the interracial ban despite the Equal Protection Clause which is intended to protect suspect classes from the will of a simple majority.

To allow this would mean that the Courts, essentially, have no jurisdiction when it comes to the Equal Protection Clause. That is a rather substantial change.

This post has been edited by entspeak: Nov 16 2008, 07:22 PM
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Blackstone
post Nov 16 2008, 07:29 PM
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QUOTE(entspeak @ Nov 16 2008, 02:09 PM) *
It has been determined by the California Supreme Court that homosexuals are suspect class with protected under the Equal Protection Clause of the State Constitution and that, according to the Equal Protection Clause, the right to marry can't be restricted solely based on sexual orientation.

But since Proposition 8 doesn't actually do that, there's no legitimate reason for overturning it.
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entspeak
post Nov 16 2008, 07:34 PM
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QUOTE(Blackstone @ Nov 16 2008, 01:29 PM) *
QUOTE(entspeak @ Nov 16 2008, 02:09 PM) *
It has been determined by the California Supreme Court that homosexuals are suspect class with protected under the Equal Protection Clause of the State Constitution and that, according to the Equal Protection Clause, the right to marry can't be restricted solely based on sexual orientation.

But since Proposition 8 doesn't actually do that, there's no legitimate reason for overturning it.


If Proposition restricts the choice of who you marry based solely on sexual orientation then it most certainly does do that, Blackstone.

If marriage is only valid and recognized between a man and a woman, then the choice of who one marries is restricted based on sexual orientation - a homosexual can't choose to marry an individual of the same sex.

This post has been edited by entspeak: Nov 16 2008, 07:42 PM
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CruisingRam
post Nov 16 2008, 08:02 PM
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QUOTE(DaytonRocker @ Nov 16 2008, 11:06 AM) *
QUOTE(entspeak @ Nov 16 2008, 01:26 PM) *
A suit has been filed with the State Supreme Court by the government of the city of San Francisco to invalidate the amendment created by the passage of Prop 8.

Now, to be clear, this debate is not about the nature of homosexual relationships, but about a question of constitutional law.

Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?

No.

Instead, this needs to go to the Supreme Court. Even if the California courts said gay marriage is ok, you still have 41 states saying they don't exist. This has now become more than a states issue. All states have rejected gay marriage when brought to the voters. But we have individual courts trying to override the will of the American people - just like what is happening with Prop 8.

Let the Supremes settle it.


I agree DR, I think that is where this is going- it is one of the last civil rights movements in this country, certainly the main battle ground for equal civil rights- as pointed out, the USSC had to over-ride the will of the people many times to obtain equal rights for blacks, if it were a "majority rules" type scenario, blacks would still be second class citizens.

For minorities, the USSC is pretty much always the last hope for the downtrodden. YOu can't depend on the good will of a hateful majority to obtain equal rights for the minority.
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entspeak
post Nov 16 2008, 08:10 PM
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QUOTE(CruisingRam @ Nov 16 2008, 02:02 PM) *
I agree DR, I think that is where this is going- it is one of the last civil rights movements in this country, certainly the main battle ground for equal civil rights- as pointed out, the USSC had to over-ride the will of the people many times to obtain equal rights for blacks, if it were a "majority rules" type scenario, blacks would still be second class citizens.

For minorities, the USSC is pretty much always the last hope for the downtrodden. YOu can't depend on the good will of a hateful majority to obtain equal rights for the minority.


While I agree that this may be where this is headed eventually, legal recognition of marriages is still a power left to the states and not the federal government. To argue that this should not be decided by the State Supreme Courts is to argue that states do not have the power under the US Constitution to regulate marriage - that is not the case. California, through the courts, overturned interracial bans long before the USSC had anything to say on the subject.

If an amendment such as this was allowed via a vote by a simple majority, the California Supreme Court could easily have had that decision overturned as well. It is within the power of the Courts to interpret the Equal Protection Clause specifically to prevent the restriction of the rights of the unpopular minority over the will of the majority. That is the job of a State Supreme Court justice.
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Blackstone
post Nov 16 2008, 08:15 PM
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QUOTE(entspeak @ Nov 16 2008, 02:34 PM) *
If Proposition restricts the choice of who you marry based solely on sexual orientation then it most certainly does do that, Blackstone.

Except it doesn't restrict the choice of whom you marry based solely or even at all on sexual orientation. The rules are the same regardless of the sexual orientation of the spouses. The law simply mentions nothing about sexual orientation.
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CruisingRam
post Nov 16 2008, 08:19 PM
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QUOTE(entspeak @ Nov 16 2008, 12:10 PM) *
QUOTE(CruisingRam @ Nov 16 2008, 02:02 PM) *
I agree DR, I think that is where this is going- it is one of the last civil rights movements in this country, certainly the main battle ground for equal civil rights- as pointed out, the USSC had to over-ride the will of the people many times to obtain equal rights for blacks, if it were a "majority rules" type scenario, blacks would still be second class citizens.

For minorities, the USSC is pretty much always the last hope for the downtrodden. YOu can't depend on the good will of a hateful majority to obtain equal rights for the minority.


While I agree that this may be where this is headed eventually, legal recognition of marriages is still a power left to the states and not the federal government. To argue that this should not be decided by the State Supreme Courts is to argue that states do not have the power under the US Constitution to regulate marriage - that is not the case. California, through the courts, overturned interracial bans long before the USSC had anything to say on the subject.

If an amendment such as this was allowed via a vote by a simple majority, the California Supreme Court could easily have had that decision overturned as well. It is within the power of the Courts to interpret the Equal Protection Clause specifically to prevent the restriction of the rights of the unpopular minority over the will of the majority. That is the job of a State Supreme Court justice.



Thanks for the clarification entspeak- the Cali constitution is fundamentally different than the very, very libertarian Alaskan constitution, which is very, very hard to amend to take away rights, and very easy to interpret to guaruntee rights ( it has such a strong privacy clause, all attempts to make marijuana illegal have failed) You can not amend our constitution through referendum, so I was misunderstanding the differences in the Cali constitution.

Blackstone's argument obviously has no merit, no need to belabour the point that DTOM made, and I believe the USC will probably strike down the ATTEMPT to ammend the state constitution, based on the arguments you have laid out, and on the, which decision was it? Perez vs somebody?
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entspeak
post Nov 16 2008, 08:21 PM
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QUOTE(Blackstone @ Nov 16 2008, 02:15 PM) *
QUOTE(entspeak @ Nov 16 2008, 02:34 PM) *
If Proposition restricts the choice of who you marry based solely on sexual orientation then it most certainly does do that, Blackstone.

Except it doesn't restrict the choice of whom you marry based solely or even at all on sexual orientation. The rules are the same regardless of the sexual orientation of the spouses. The law simply mentions nothing about sexual orientation.


The law does not have to explicitly mention sexual orientation in order to impact the choice of who a homosexual marries. For a homosexual, a choice based on sexual orientation would be a choice to marry an individual of the same sex. In California, the Equal Protection Clause protects that choice.

QUOTE(CruisingRam)
and I believe the USC will probably strike down the ATTEMPT to ammend the state constitution, based on the arguments you have laid out, and on the, which decision was it? Perez vs somebody?


Perez v. Sharp.

The first step is to have the challenge to the CSC. If that wins, then those who disagree with that decision can take it to the USC. In my opinion, the USC is required to determine whether or not the CSC made any mistakes in it's interpretation regarding Article 18. If the USC upheld the CSC's decision, it would have no affect on the illegality of same-sex marriage in other states.

This post has been edited by entspeak: Nov 16 2008, 08:33 PM
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Blackstone
post Nov 16 2008, 08:56 PM
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QUOTE(entspeak @ Nov 16 2008, 03:21 PM) *
The law does not have to explicitly mention sexual orientation in order to impact the choice of who a homosexual marries.

It doesn't even mention it implicitly, and it impacts the choice of whom a heterosexual marries just as much as it impacts the choice of whom a homosexual marries.

QUOTE
For a homosexual, a choice based on sexual orientation would be a choice to marry an individual of the same sex.

In other words, a homosexual would want to choose to do something that the law forecloses. Lots of people would choose to do something that the law forecloses. That doesn't meant they're being discriminated against.

QUOTE
In my opinion, the USC is required to determine whether or not the CSC made any mistakes in it's interpretation regarding Article 18.

Federal courts generally do not review how state courts interpret state laws. It's really only when federal law is invoked that federal courts review the interpretation.
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entspeak
post Nov 16 2008, 09:49 PM
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QUOTE(Blackstone @ Nov 16 2008, 02:56 PM) *
It doesn't even mention it implicitly, and it impacts the choice of whom a heterosexual marries just as much as it impacts the choice of whom a homosexual marries.


Not in regards to sexual orientation. A heterosexual is allowed to use their sexual orientation in their choice of who they marry... it is not impacted. It is only the homosexual whose choice is based on sexual orientation that is impacted.

QUOTE
Lots of people would choose to do something that the law forecloses. That doesn't meant they're being discriminated against.


Yes, like blacks wanting to marry whites, right? wacko.gif I mean, that was something that the law "forclosed" in California until Perez v. Sharp, right? Oh, but you have that whole suspect class thing to deal with, that's right - the whole Equal Protection Clause aspect of the thing. So, sometimes, it does mean you are being unconstitutionally discriminated against.

QUOTE
Federal courts generally do not review how state courts interpret state laws. It's really only when federal law is invoked that federal courts review the interpretation.


Oh, right... my bad. I was thinking of Romer v. Evans, but that did deal with an interpretation of the US Constitution because, while a State may afford more protections to its citizens than those afforded by the US Constitution, it can't give them less... the US Constitution is the foundation.

This post has been edited by entspeak: Nov 16 2008, 10:10 PM
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JohnfrmCleveland
post Nov 17 2008, 04:19 AM
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Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?

As far as the long-term viability of such an amendment to a state constitution - states are free to expand rights and liberties past what is granted in the U.S. Constitution. If, however, they try to pare down those rights past the level granted by the U.S. Constitution, the law or amendment in question will be found unconstitutional by the USSC.... eventually. It can happen fast, or it can be ignored for years, and the agenda is set by the Chief Justice, who decides what cases to look at. So even an unconstitutional (U.S. Constitution, I mean) amendment to a state constitution might sit on the books for years.

Amendments to constitutions trump precedent. So it does not matter what the CSC has ruled in the past on this issue. The only problem with adding an amendment is when it directly conflicts with other, still valid, parts of the constitution. If the CSC finds that this amendment is in conflict with, say, their equal protection clause, they might bounce it. (I admit up front that I haven't read through the Cal. constitution.) I think that in practice, the effect of the amendment is discriminatory if, as Entspeak has said, the CSC has already given homosexuals protected group status. But that does not necessarily mean that the amendment will be in such conflict with the rest of the constitution that it will fail. And the matter will end with the CSC for now, because homosexuals do not yet have protected status in the eyes of the USSC. That is to say, if the people of California see fit to pare down this right to the level of the USSC rulings, there is nothing to prevent them from doing so.

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entspeak
post Nov 17 2008, 05:11 AM
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QUOTE(JohnfrmCleveland @ Nov 16 2008, 10:19 PM) *
That is to say, if the people of California see fit to pare down this right to the level of the USSC rulings, there is nothing to prevent them from doing so.


Not when dealing with a State Constitution's Equal Protection Clause. Again, a State Constitution can afford more protection than the federal Constitution. This does not mean that the people of the state can violate the State's Constitution in favor of the federal.
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droop224
post Nov 17 2008, 05:21 AM
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QUOTE(entspeak @ Nov 17 2008, 12:11 AM) *
QUOTE(JohnfrmCleveland @ Nov 16 2008, 10:19 PM) *
That is to say, if the people of California see fit to pare down this right to the level of the USSC rulings, there is nothing to prevent them from doing so.


Not when dealing with a State Constitution's Equal Protection Clause. Again, a State Constitution can afford more protection than the federal Constitution. This does not mean that the people of the state can violate the State's Constitution in favor of the federal.



But if the voter have voted to amend the constitution how does the state supreme court find it unconstitutional?
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Bikerdad
post Nov 17 2008, 05:26 AM
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Based on the provisions of the California State Constitution, should the California State Supreme Court invalidate the amendment created by Prop 8?

No, and there's two reasons why. The first is simply that the provisions of the California Constitution explicitly recognize that all political power belongs to the people. Second, others states have already been down this road, and thus the legal arguments and precedents have already been played out. Oregon played this tune already, complete with functionally identical Constitutional amendment provisions, and a challenge based on the same rationale as this challenge. It failed.
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Victoria Silverw...
post Nov 17 2008, 05:49 AM
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I have to agree. As painful as the results of this election are to me, I must accept them. Instead of a court battle, the only route to take towards the goal I share is a long and hard one. The infamous Proposition 8 must be destroyed by the voters themselves. I am confident that they will have the wisdom and decency to do so, but it may not be for several years.
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JohnfrmCleveland
post Nov 17 2008, 06:11 AM
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QUOTE(entspeak @ Nov 17 2008, 01:11 AM) *
QUOTE(JohnfrmCleveland @ Nov 16 2008, 10:19 PM) *
That is to say, if the people of California see fit to pare down this right to the level of the USSC rulings, there is nothing to prevent them from doing so.


Not when dealing with a State Constitution's Equal Protection Clause. Again, a State Constitution can afford more protection than the federal Constitution. This does not mean that the people of the state can violate the State's Constitution in favor of the federal.


Entspeak, they wouldn't be violating the state constitution, they would be changing it. The Equal Protection Clause has no higher standing than any other clause. If there is a direct conflict, then you have to make a change or throw out the proposed amendment. But when I talk about direct conflict, I'm talking about something like Prohibition - you can't just add the 21st (repealing Prohibition) without repealing the 18th. They can't stand together in direct conflict. But it would be a stretch to find direct conflict between the words of Cal's Equal Protection clause and Prop 8. The old rulings would just be disregarded as precedent, and new rulings would have to fit in with the new amendment. And that is possible, especially if you remove protected group status from homosexuals.

Look, if enough states got together and decided to overturn the 14th Amendment, they could do that. Nothing is sacred. Amend the Constitution, and change the rules. It's the only set we have, and we are allowed, by it's own mechanisms, to make such changes.

This post has been edited by JohnfrmCleveland: Nov 17 2008, 06:14 AM
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