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

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  •  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.

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