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

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  •  Yup! (1+ / 0-)
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    Judge Moonbox

    Frankly, it was poorly explained and (because the sane people overestimated the intelligence of voters) poorly campaigned.

    I believe that Gloria Ahlred's lawsuit has a reasonable chance of success.

    •  please explain (0+ / 0-)

      I don't follow these by person-names, but by the concepts in play.

      What's Gloria Ahlred's lawsuit about?  

      •  She's Nancy Grace's mother (1+ / 0-)
        Recommended by:
        Judge Moonbox

        and a celebrity wanna be.

        But the argument is a valid one; you can't amend a constitution by writing a proposition that is designed to legislate. The rules are different.

        And since the LDS church had this prop written before the CA SC ruled that discrimination was unconstitutional, Prop B may be much ado about nothing.

        Or so I pray!

        •  what you just said is that (0+ / 0-)

          (I'm a geek, I don't care about celebrity this and that)

          You said that the proposition was designed to legislate and thus is not qualified as an amendment.  

          What's your basis for that?, or hers?  That is, it seems that all amendments to a constitution have legislative impact, so how do you differentiate this from those?  

          I'm going to keyword search and see what I come up with but if you can post something, that would be helpful.  

          •  Read about the date it was written (0+ / 0-)

            and it pre-dated the court decision

            •  date isn't critical, absence of detail is... (1+ / 0-)
              Recommended by:
              Seneca Doane

              What's important about the date is, it demonstrates that 8 failed to take into account the reasoning used by the court, and any additional conditions granted by the court.

              The elements that 8 failed to take into account, exceed the scope of 8, and thus can be used to invalidate 8.  

              By analogy, planning to have enough gas in the tank to drive a given distance doesn't help you if you discover that your car is missing a wheel.  

        •  NOTE: Spelling is ALLRED (1+ / 0-)
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          For anyone wanting to keyword search this.

          Here's something:

        •  Historically (0+ / 0-)

          the CA SC has been very reluctant to consider initiative amendments passed by the voters as substantial revisions. They have allowed a number of them to stand even when they had major impacts on state government, e.g. Prop 13.

          I would not put money on the probability that they will overturn prop 8.  

          •  Will SCOTUS (1+ / 0-)
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            burrow owl

            If the decision goes to SCOTUS, they will consider the very narrow question of whether the procedure was correct, not the broader question of civil rights. (Trust me; Roberts always goes for the narrow decision)

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

            Only religion that includes a single deity is valid or recognized in California.

            Notice that this has the same structure as 8, and almost exactly the same language: "Only (consitutional right X) that (meets condition Y) is valid or recognized in California."

            However, in order for it to take effect, it must do at least two things:

            1.  It must reach back and redefine a fundamental right (freedom of religion).
            1.  It must reach back and exclude certain minorities from equal protection, for example Hindus who are polytheistic, and pagans who are pantheistic.  

            So, what arguement can you make that both (1) and (2) taken together amount to an amendment rather than a revision?  

          •  in fact i think i've just found the FATAL flaw (0+ / 0-)

            in 8.

            It says:

            "Only marriage between a man and a woman is valid or recognized in California."

            Note that it does not actually create a definition of marriage.  It only says that marriage is between a man and a woman, and leaves aside the question of what exactly constitutes marriage.  

            The fatal flaw is this:

            The Court has already established a definition of marriage, as a fundamental right that is subject to equal protection, in which GLBT couples are a protected category, and so on.  

            Prop 8 as written, can be read as attempting to add a conflicting element of definition, without first undoing the element that conflicts with it.  However, the conflicting element is subordinated in the very wording of the proposition to the superordinate element, the word "marriage."  

            By analogy, "Only persons having predominantly Caucasian ancestry are recognized as citizens in California."

            The problem is that the structure of the above sentence does not actually change the legal definition of "person," it merely adds an additional subordinate condition onto the recognition of some persons as citizens.

            Legally, the category "persons" remains unchanged; the hypothetical proposition merely picks out a subcategory of persons to which it assigns the legal status  of citizens.  

            Since the category "persons" has not been altered, it still has full legal force, including a claim of an equal protection right.  Since that right remains in force, it supersedes the subordinate clause in the sentence that selects out a subset of persons (whites) to obtain a given right (citizenship).  

            Thus, the Court's definition of marriage as an equal right, including the protected category of GLBTs, remains in effect.  The subordinate condition that is in conflict with that definition, is thereby invalidated.

        •  I just checked Wikipedia (1+ / 0-)
          Recommended by:
          Seneca Doane

          She is not Nancy Grace's mother.  However, she is the mother of another CourtTV host, Lisa Bloom.

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