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View Diary: Anti-Prop 8 backlash changes minds (419 comments)

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  •  a court ruling would be pretty narrow too (0+ / 0-)

    Any ruling at this stage is likely to be an obscure technical issue about the meaning of a "revision" versus an "amendment", which already has a mostly incoherent set of precedents that this won't do a whole lot to clear up either way.

    "See a world of tanks, ruled by a world of banks." —Sol Invictus

    by Delirium on Mon Nov 24, 2008 at 02:47:31 PM PST

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    •  That's not the sole issue before the Court (4+ / 0-)

      To find that it's a revision they must necessarily find that it is because equal protection anlaysis can only be borne out of judicial analysis. This is the heart of their second question about separations of powers that they asked the parties to answer. It is the most powerful part of the case. You could argue that fundamental rights maybe abridged if there is some kind of analysis that requires majority input like the death penalty cases-- since "cruel and unusual" is a product of community standards. But, equal protection analysis- again the heart of the second question the court asks- is exactly the issue I raised: who gets to decide equal protection- the voters or the Court. It's a fundamental question about how Constitutiions are suppoed to work.

      •  not necessarily (1+ / 0-)
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        To find that it's a revision they don't necessarily have to do any equal-protection analysis; the only standard set by precedent is that a revision is either quantitatively or qualitatively a "substantial" change to the Constitution. Obviously here it isn't quantitatively (as in one 1948 initiative that was struck down for being 50% as long as the entire constitution it was amending), so the question before the court is whether Prop 8 is qualitatively a "substantial" change to the constitution, as opposed to a relatively minor one. The outcome of that is basically subjective, and the rest will be a bunch of hand-waving to cover up the fact that California's constitution is broken, and has no principled way to distinguish amendments from revisions.

        "See a world of tanks, ruled by a world of banks." —Sol Invictus

        by Delirium on Mon Nov 24, 2008 at 03:06:15 PM PST

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        •  there is no reasonf or them to have asked the (2+ / 0-)
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          chiefscribe, joehoevah

          separation of powers question if you were right. One of the reasons I am a little bit more optimistic (although only by a hair) is that second question. It's a huge hurdle for the Yes on 8 supporters to overcome.  It's what make 8 clearly indicate the heart of judicial anlaysis under the CA Constitution. The courts most sacred responsibility is EPC anlaysis. To ask who gets to decide EPC analysis is to put a bullseye on the Yes on 8's case. How do they argue that it's not the courts here without arguing that there are not wider implications for separations of powers? I don't see how they do it. I am not a Constitutional law person, but I still thought as a lawyer that question was telling.

        •  you also wrong by the way (2+ / 0-)
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          homogenius, chiefscribe

          they already did EPC analysis in the first case. So  i have no idea what your post means on that front. They already found gays to be a suspect class. The only question is whether there analysis can be overturned by the majority vote under Prop 8.

          Again, that's why the separation of powers matters. The EPC analysis already happened. The only question is who gets to decide whether the court is the final determiner on EPC analysis. Not whether EPC analysis should be applied. It already has been. It's a different question than the one you make.

          •  well, sure (0+ / 0-)

            It was applied in the first case, yes, but based on a part of the Constitution that now no longer exists, if this initiative is valid. The question before them is precisely whether the initiative is valid. The only way it can be invalid is if it constitutes a "revision", which is a crapshoot as far as any principled ruling goes.

            Past cases have gone both ways, for reasons that I can't really fathom. For example, the California Supreme Court overturned the death penalty on Constitutional grounds, and it was reinstated by initiative, which they ruled wasn't a revision, despite overturning their original equal-protection argument. But other things have been struck down as revisions for bizarre reasons, like having too many words.

            "See a world of tanks, ruled by a world of banks." —Sol Invictus

            by Delirium on Mon Nov 24, 2008 at 03:17:36 PM PST

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            •  That's again wrong (1+ / 0-)
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              I don't want to go back and forth with you here over what seems to be arguments you are making up on the fly rather than basing it on what the questions the Court has asked are. The fact is that the second question is exactly as I decribe it. You can look it up. The Court asks:

              At issue

              What is before the state high court:

              1. Does Proposition 8 make such a far-reaching change to California's Constitution that it amounts to a constitutional revision, which requires a two- thirds vote of the Legislature to be placed on the ballot?

              2. Does Prop. 8 violate the constitutional separation of powers by restricting judges' authority to protect the rights of same-sex couples?

              1. If constitutional, does Prop. 8 invalidate the 18,000 same-sex marriages that took place in California between June 16, when the court's ruling legalizing gay and lesbian unions took effect, and the election?

              I am referring to the second question. That directly addresses EPC analysis in the first case.


              •  Not only that... (1+ / 0-)
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                But it's not a done deal whether Prop 8 actually invalidates the EPC. There's an opening there for the CSC to rule that Prop 8 didn't actually invalidate the EPC, or if it did, that that would constitute a revision.

                The Court was very deliberate in the majority opinion in its language in In re Marriage . I'm going to be very interested to see if they really will walk it back to find a way to uphold Prop 8. They may well do it, but I think it will take a contortion on par with the SCOTUS decision in Dale (which I think is a piece of shit).

                "Troll-be-gone...apply directly to the asshole. Troll-be-gone...apply directly to the asshole."

                by homogenius on Mon Nov 24, 2008 at 04:59:41 PM PST

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                •  In Re Marriage is one o the reasons (0+ / 0-)

                  I am hard pressed to see this court overturning its own recent ruling, especially when the full facts are considered. They were asked to hold off on making this decision until Prop 8 was voted on, and elected not to do so. They wrote an opinion, including Kennard (spelling?) in her concurrence that used EPC analysis and fuandmental right analysis. In theory, not always practice, Justices are suppose to limit decisions to only what is necessary to decide the case. If this were merely a technical issue, then why write such a sweeping opinion? I am looking at this in terms of larger judicial decision making principles. I don't understand the Court, should they decide to do so, deciding to so broader EPC when it was completley unncecessary given they could have punted for political reasons in In Re Marriage. They had to have known the implication of their language.

              •  right. and in an interesting twist... (1+ / 0-)
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                one of the petitions argues that the 1911 (?) initiative that amended the constitution to allow the people to amend the constitution by initiative because it was itself an amendment and not a revision cannot touch on the fundamental rights mentioned in Article 1.

                And marriage, included as part of the fundamental rights to privacy, liberty, and equal protection, could therefore not be touched by an initiative amendment.  

    •  I don't think so. This will be major precedent. (1+ / 0-)
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      Once the CA Supreme Court rules that Prop 8 would be an illegal revision and a violation of separation of powers, never again will the rights of a suspect class be subject to majority vote--any such initiative would never be allowed on the ballot (would get challenged in advance and rejected by the court).  

      LGBT citizens have already been declared a suspect class.

      Marriage to the person of one's own choosing has already been ruled a fundamental right.

      The questions before the court have wide-ranging implications.

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