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View Diary: Prop 8 legal challenge likely to fail (87 comments)

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  •  Seems fairly straight forward to me. (13+ / 0-)

    The issue before the Court is whether prop 8 constitutes an amendment or revision of the state constitution.  In May the Court found that there was a "fundamental constitutional right to form a family relationship"  and that "the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples"

    The right for same-sex marriage having been  established, the removal of that right constitutes a revision.  Prop 8 did not meet the requirements for revision of the constitution.  Prop 8 will not stand.

    •  I agree (0+ / 0-)

      but I don't think the court is going to have the fortitude to do its job.

    •  You're being conclusory (3+ / 0-)

      The right for same-sex marriage having been  established, the removal of that right constitutes a revision.

      That's the question for the court: is removal of a right a revision?  There are good arguments on both sides  The legal precedent, IMHO, suggests that it isn't a revision, but the area is gray and unlitigated enough that it could go either way.

      Sometimes I feed my cat dog food.

      by burrow owl on Wed Nov 19, 2008 at 05:22:53 PM PST

      [ Parent ]

      •  Yup (3+ / 0-)
        Recommended by:
        burrow owl, SallyCat, NearlyNormal

        Generally a revision is an amendment which fundamentally alters the structure of government.  Taking away a right, however odious, does not do so in the same way that say changing the powers of the state leg. might...

        "Polls are like crack, political activists know they're bad for them but they read them anyways."-Unknown

        by skywaker9 on Wed Nov 19, 2008 at 05:24:42 PM PST

        [ Parent ]

        •  That's my read, too. (1+ / 0-)
          Recommended by:

          OTOH, this post @ Volokh makes a pretty good case for the argument that it's a revision (and I say that as one that defaults to democracy, rather than the courts.  If there's a question, I think I'd rather democracy take its course)

          Sometimes I feed my cat dog food.

          by burrow owl on Wed Nov 19, 2008 at 05:30:55 PM PST

          [ Parent ]

        •  What about Raven? (0+ / 0-)

          That was a matter of taking away rights rather than a change to the structure of government.

          •  Rights were taken away, but that wasn't why (0+ / 0-)

            the initiative was found to be a revision, AFAIK.  Rather, the problem was that the structure of the government was changed by removing the powers of the CA court system and vesting them in the federal courts.

            IIRC, other parts of the initiative that removed rights were let stand as valid amendments.

            Sometimes I feed my cat dog food.

            by burrow owl on Wed Nov 19, 2008 at 06:01:18 PM PST

            [ Parent ]

            •  Prop 8 (1+ / 0-)
              Recommended by:
              burrow owl

              could be seen to interfere with the power of the California courts as well.

              Even though I like the result of Raven in terms of protecting rights, it seems a bit of a stretch to me. Changing the structure of government would be something like moving the power to issue pardons from the governor to the legislature.

              •  i have no idea what you post means (0+ / 0-)

                how does taking the pardon away affect the power of government more than equal protection analysis?

                •  The division of powers (0+ / 0-)

                  is an integral part of the structure and operation of government. Rights exist separate from particular forms of government.

                  •  I agree (1+ / 0-)
                    Recommended by:
                    Buster CT1K

                    Rights do exist separately generally, but here are theyare linked by who does what. The judiary traditionally has been responsible for EPC analysis because otherwise the analysis would not make much sense.

                    Just had this discussion at another site. They couldn't get how the separation of powers argument was in fact to me  a backdoor to the equal protection analysis. I kept pointing out until I gave up that they seem to be asking who has the right to determine equal protection analysis- the courts or the people acting as legislature.

                    Once you answer that question, only then can you can go to the question of amendment versus revision if you find that the voters in fact did change the fundamental structure of the separation of powers by performing a role reserved to the Courts.

                    The reason why I think this matters is the case law regarding the death penalty. That would appear to be contra to overturning Prop 8 until you realize that the death penalty as a punishment is not solely left to the Courts to determine like equal protection. The former has, as I remember, had a community standard. Whereas the later is specifically to avoid community standards by assigning the decision making powers solely to the Courts.

                    This is all just  my guess based on my understanding of what they asked.

    •  A revision is required if you're trying to (6+ / 0-)

      fundamentally alters the structure of the Constitution.

      Prop 8 removes a fundamental right from a specific minority group, and interferes with the court's power as final arbiter of the equal protection clause.

      That is clearly a revision.

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