Skip to main content

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

Comment Preferences

  •  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.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site