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

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  •  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

      [ Parent ]

      •  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.  

          •  Cool find (0+ / 0-)

            I have to admit at the time when I read that I did not appreciate the nature of the argument. So that goes again to the separation of powers?

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