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View Diary: Why was Prop. 8 Unconstitutional? - Brainstorm! (88 comments)

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  •  Prop 8 conflicts with Equal Protection Clause (4+ / 0-)

    My argument would be that Prop 8 conflicts with the Equal Protection Clause of the California Constitution.

    I don't think you can amend the California Constitution in such a way as to cherry pick which rights/freedoms are protected by the Equal Protection Clause.

    I don't think you can argue that the Equal Protection Clause states that everyone must be treated equally without regard to race, skin color, ethnicity, sex, age, and so forth and then argue except gay people who because of Prop 8 must now be treated UNEQUALLY and not be allowed to marry.

    The basic concept of Prop. 8 which is to treat gay people differently from heterosexual people violates the very core concept of Equal Protection under the law. So I believe that Prop 8 and the Equal Protection Clause of the California Constitution are in direct conflict with each other.

    In such a case I do believe that the older established Equal Protection Clause takes precedence over Prop 8 which becuae of this conflict must be rule unconstitutional.  

    Please correct me if I'm wromg but I think this is a pretty simple point that cannot be argued away by Prop 8 supporters.

    In my opinion, the only way to do away with gay marriage rights, in fact, the only way to do away with complete equality in every legal way imaginable for all gay people is to abolish the Equal Protection Clause itself.  Good luck trying that. It's not ever going to happen.

    •  I totally agree but (1+ / 0-)
      Recommended by:
      Judge Moonbox

      some sane people are not arguing this in a scientific and legally defensible way.

      By insisting on using the term "sexual preference" rather than relying on the very clear scientific evidence of normal variations in sexuality, reasonable people risk a muddying of the constitutional waters.

      In my view, the "equal protection clause" requires that the government back out of the business of defining marriage (a religious term) at all, and simply define legal partnerships--with absolutely equal rights for every citizen.

    •  equal protection: here's how that works.... (2+ / 0-)
      Recommended by:
      burrow owl, Bensdad

      The Court gave us three things:

      1. right to marry, based on equal protection.
      1.  "suspect category" status, same as race (genetic) and religion (chosen).  Note here that regardless of the righties' claims that sexuality is chosen, suspect category status moots their point because it includes religion which is chosen.  
      1.  "strict scrutiny" standard as a watchdog over violations of (1) and (2)

      Prop 8 claims to be a simple definition.  However, it fails as follows.

      In order for Prop 8 to take effect, it requires as a logical precondition, reaching back and creating an exception to equal protection.  By analogy, in order to say you are going to build a house, first you have to build a foundation.  A foundation is required in order for there to be a house.  

      Equal protection is all-or-none.  A precedent that one could take a bite out of it for a particular instance, would invalidate it altogether.  For example, "In California, religion is defined as any belief system that includes a singular unitary deity."   That definition reaches back and undoes equal protection for religions that believe in other types of theology such as polytheism, pantheism, and so on.  

      Undoing equal protection would then have impermissible consequences that far exceed the scope of an amendment and become a revision, since much of the structure of California government is predicated on equal protection applying as an undiminished whole.  

      Logically the chain of causality is this:  Definition Y requires precondition X, and precondition X creates consequence Z.  Therefore definition Y creates consequence Z, though indirectly.  If consequence Z is impermissible, then the causes of Z are also impermissible: in this case X, and through it, Y.  

      Further, Prop 8 did not explicitly rescind the suspect category status or alter the strict scrutiny requirement, so both of those elements of the ruling remain in effect.  A proposition would have to remove those elements in order to even have a chance of removing GLBTs from equal protection.  But it did not do so, thus it fails.  By analogy, in order to drive a car, the car has to have all of its wheels.  If it is missing a wheel, it goes nowhere.  

      •  That's a very precariously built structure. (2+ / 0-)
        Recommended by:
        G2geek, Richard Lyon

        Undoing equal protection would then have impermissible consequences that far exceed the scope of an amendment and become a revision, since much of the structure of California government is predicated on equal protection applying as an undiminished whole.  

        I don't see why that should be the case.  If the court upholds Prop 8, it just means that the equal protection clause is applicable to everything except for gay marriage.  That may be an irrational design for governance, but so much the worse for rationality.

        The tall people want what the short people's got - The Shaggs

        by burrow owl on Tue Nov 11, 2008 at 06:43:17 PM PST

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        •  It would mean overturning the earlier decision (0+ / 0-)

          which precisely rejects the notion "that the equal protection clause is applicable to everything except for gay marriage."  They could do that, if they want the ignominity.

          I spent the week before Election Day in Nevada and all I got is this great President!

          by Seneca Doane on Tue Nov 11, 2008 at 08:50:58 PM PST

          [ Parent ]

        •  here's a hypothetical (0+ / 0-)

          Using exactly the same sentence structure and wording as 8, with one obvious exception:

          Only religion including a singular deity is valid or recognized in California.

          Religious minorities are afforded equal protection and are a suspect class, and religious discrimination falls under strict scrutiny.  

          Are you also asserting that my hypo version of 8 can automatically undo a) equal protection for religious minorities, b) their suspect class status, and c) the strict scrutiny requirement?

          I'm asserting that equal protection is superordinate with respect to definitions that attempt to diminish it.  Where there is a conflict, the attempted diminishment fails, not the equal protection.  

          I think the reply below yours found a hole in my reasoning with respect to which elements of the original court ruling are critical here, I'll check that out next... but plus or minus that, I'm interested in your response to my hypo.

      •  Flaw in your reasoning (1+ / 0-)
        Recommended by:
        G2geek

        "Prop 8 did not explicitly rescind the suspect category status or alter the strict scrutiny requirement, so both of those elements of the ruling remain in effect."

        Actually, that's irrelevant. If you accept the "proposition" that being a suspect class offers protection against even discrimination that is voted in as a constitutional amendment, then the point you make above is irrelevant.

        A suspect class is a suspect class is a suspect class, etc....

        No ballot initiative could change that fact. Rather, the very existence of such a proposition only serves to reinforce the correctness of the designation.

        So, the fact that Prop 8 doesn't explicitly refer to the court's reasoning, and explicitly invalidate it -- that's irrelevant.

        Either the amendment survives without regard to those points, or it doesn't.

        It seems to me that the question is whether an implicit exception to the Constitution can be carved out in this one respect. Is a constitutional amendment per se invalid because it conflicts with the Equal Protection right -- or can that be modified by constitutional amendment?

        There is a subset of that question and that's whether this particular amendment survives scrutiny...In other words, is there a judicial review of the statute that requires meeting the strict scrutiny because the Proposition is aimed at a suspect class? SO, it may be possible to make some changes to Equal Protection rights -- such as the rather amusing amendment regarding school busing, if the disfavored class is not protected by strict scrutiny -- but still be possible to invalidate provisions that do not meet strict scrutiny.

        Coming Soon -- to an Internet connection near you: Armisticeproject.org

        by FischFry on Tue Nov 11, 2008 at 07:05:02 PM PST

        [ Parent ]

        •  OK, let's go there... (0+ / 0-)

          While the system was down for maintenance I read the document by Allred et. al. Tyler & Olson v. CA.  

          From your posting above I thought you meant that suspect class and strict scrutiny supersede any attempt to amend the constitution to the contrary, and I was skeptical of that interpretation.

          Turns out that what the case document asserts is similar with an added piece:  the reason that suspect class and strict scrutiny should supersede a contrary amendment is that they are attached to equal protection, which in turn is so fundamental that it and its associated effects trump an amendment.  

          Further, the document asserts "an irreconcilable constitutional conflict" between prop 8 and the above.  I have a hunch that this phrase "irreconcilable constitutional conflict" is going to be cited by the court as a reason to support the plaintiffs and throw out prop 8.  

          OK so far, I think I follow your reasoning and it seems sound.

          Though, I'm still skeptical about what I interpret is another of your claims here, that voter-approved discrimination reinforces the strength of suspect class designation.   That would seem to get near to calling for second-guessing the voters, e.g. "if you vote for X, that strengthens the case for !X."  I don't think the court is going to go there because it would at minimum offer a handle for hostile populists to grab onto, that is not essential to the purpose of overturning 8.  

    •  asdf (1+ / 0-)
      Recommended by:
      FischFry

      So I believe that Prop 8 and the Equal Protection Clause of the California Constitution are in direct conflict with each other.

      True, and when laws conflict the later one prevails.  eg, they do conflict, and the loser is equal protection.  

      The tall people want what the short people's got - The Shaggs

      by burrow owl on Tue Nov 11, 2008 at 06:45:04 PM PST

      [ Parent ]

      •  Well later enactments... (1+ / 0-)
        Recommended by:
        Seneca Doane

        ...are presumed to be aware of previous enactments but Prop 8 cannot vitiate the equal protection clause, thereby wiping out a century of equal protection jurisprudence.

        Tonight I'm going to party like it's 1929.

        by Bensdad on Tue Nov 11, 2008 at 08:52:31 PM PST

        [ Parent ]

      •  This is balderdash (0+ / 0-)

        Let's use a federal example.  If Congress said that women could not longer work outside the home, it would have passed a "law," and that "later" law would be pulverized by the earlier one, viz., the Constitution.  You don't seem to get the concept of what a "fundamental right" is.

        I spent the week before Election Day in Nevada and all I got is this great President!

        by Seneca Doane on Tue Nov 11, 2008 at 08:53:25 PM PST

        [ Parent ]

      •  Incorrect (0+ / 0-)

        Th e question before the court is whether the correct procedure for overturnning its decision on EPC analysis can be done by bare majority. If the answer is yes, then EPC ananlysis is turned on its head (as per the 40 legislators who filed a friend of the court brief) and would invalidate Ct rulings in any other EPC case since they would have so set up a precedent here. That's the case in a nutshell. Does EPC analysis becoming meaningless or not. The only real questions are those of politics. Not law since there are no precedents and this is a case of first impression.

    •  It's a good argument (0+ / 0-)

      but until the court buys it, it is not yet a winning argument.

    •  Excellent... (0+ / 0-)

      Yes. That is the problem:

      1. The Equal Protection clause says that the state cannot discriminate against gays without a compelling reason to do so.
      1. This constitutional provision discriminates against gays.
      1. One of these two constitutional provisions cannot stand.
      1. Guess which one will go.

      Tonight I'm going to party like it's 1929.

      by Bensdad on Tue Nov 11, 2008 at 09:00:17 PM PST

      [ Parent ]

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