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Many of us are now familiar with the argument that Prop 8 was ineffective because it purported to amend the California constitution to remove equal protection rights from LGBT people.  Such a change is a fundamental restructuring of the California constitution that it has to follow the revision process (instead of the amendment process) of the California Constitution.  Otherwise, any minority group could have its equal protection rights stripped away by the majority.

We need to think of other groups whose rights are protected by the California constitution (but not the federal constitution).  Then we can point to these groups and show that they would also be subject to mere majoritarian rule in California. Can you help me?

As far as I know, religious, ethnic, racial and other minorities are protected by both the California Constitution AND the US constitution. We need to find one or more groups which are protected by California, but not the US (at least not at the same level).  LGBT is one such group.  What about other groups?  

How about disabled people? How about Native Americans?  Does California protect freedom of speech more strongly than the US constitution so that we could strip a certain level of speech away from some group (e.g. Mormons) and the federal laws wouldn't care?

What about national origin, or alienage?  I want other minority groups to jump on the wagon with us and write amicus briefs to the court to agree that minority rights should not be put up for a vote.

Originally posted to Buster CT1K on Tue Nov 11, 2008 at 05:51 PM PST.

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Comment Preferences

  •  It's my impression (0+ / 0-)

    that the wording to Prop B was written before the court declared that the California constitution required equal treatment.

    So if they passed a proposition that had the weight of legislation, but did not jump the hoops for amending the constitution, it did nothing.

    Not a lawyer, but play one on TV.

    •  amend vs revise (3+ / 0-)
      Recommended by:
      burrow owl, Simplify, Seneca Doane

      The court language covered statutes but not amendments.

      Prop8 supporters claim they have an amendment.

      If we can demonstrate that it is not an amendment but goes far enough to be a revision, then it would need 66% to pass, and in that case if fails.  

      More on this topic below....

      •  Yup! (1+ / 0-)
        Recommended by:
        Judge Moonbox

        Frankly, it was poorly explained and (because the sane people overestimated the intelligence of voters) poorly campaigned.

        I believe that Gloria Ahlred's lawsuit has a reasonable chance of success.

        •  please explain (0+ / 0-)

          I don't follow these by person-names, but by the concepts in play.

          What's Gloria Ahlred's lawsuit about?  

          •  She's Nancy Grace's mother (1+ / 0-)
            Recommended by:
            Judge Moonbox

            and a celebrity wanna be.

            But the argument is a valid one; you can't amend a constitution by writing a proposition that is designed to legislate. The rules are different.

            And since the LDS church had this prop written before the CA SC ruled that discrimination was unconstitutional, Prop B may be much ado about nothing.

            Or so I pray!

            •  what you just said is that (0+ / 0-)

              (I'm a geek, I don't care about celebrity this and that)

              You said that the proposition was designed to legislate and thus is not qualified as an amendment.  

              What's your basis for that?, or hers?  That is, it seems that all amendments to a constitution have legislative impact, so how do you differentiate this from those?  

              I'm going to keyword search and see what I come up with but if you can post something, that would be helpful.  

              •  Read about the date it was written (0+ / 0-)

                and it pre-dated the court decision

                •  date isn't critical, absence of detail is... (1+ / 0-)
                  Recommended by:
                  Seneca Doane

                  What's important about the date is, it demonstrates that 8 failed to take into account the reasoning used by the court, and any additional conditions granted by the court.

                  The elements that 8 failed to take into account, exceed the scope of 8, and thus can be used to invalidate 8.  

                  By analogy, planning to have enough gas in the tank to drive a given distance doesn't help you if you discover that your car is missing a wheel.  

            •  NOTE: Spelling is ALLRED (1+ / 0-)
              Recommended by:

              For anyone wanting to keyword search this.

              Here's something:


            •  Historically (0+ / 0-)

              the CA SC has been very reluctant to consider initiative amendments passed by the voters as substantial revisions. They have allowed a number of them to stand even when they had major impacts on state government, e.g. Prop 13.

              I would not put money on the probability that they will overturn prop 8.  

              •  Will SCOTUS (1+ / 0-)
                Recommended by:
                burrow owl

                If the decision goes to SCOTUS, they will consider the very narrow question of whether the procedure was correct, not the broader question of civil rights. (Trust me; Roberts always goes for the narrow decision)

              •  here's a hypothetical for you: (0+ / 0-)

                Only religion that includes a single deity is valid or recognized in California.

                Notice that this has the same structure as 8, and almost exactly the same language: "Only (consitutional right X) that (meets condition Y) is valid or recognized in California."

                However, in order for it to take effect, it must do at least two things:

                1.  It must reach back and redefine a fundamental right (freedom of religion).
                1.  It must reach back and exclude certain minorities from equal protection, for example Hindus who are polytheistic, and pagans who are pantheistic.  

                So, what arguement can you make that both (1) and (2) taken together amount to an amendment rather than a revision?  

              •  in fact i think i've just found the FATAL flaw (0+ / 0-)

                in 8.

                It says:

                "Only marriage between a man and a woman is valid or recognized in California."

                Note that it does not actually create a definition of marriage.  It only says that marriage is between a man and a woman, and leaves aside the question of what exactly constitutes marriage.  

                The fatal flaw is this:

                The Court has already established a definition of marriage, as a fundamental right that is subject to equal protection, in which GLBT couples are a protected category, and so on.  

                Prop 8 as written, can be read as attempting to add a conflicting element of definition, without first undoing the element that conflicts with it.  However, the conflicting element is subordinated in the very wording of the proposition to the superordinate element, the word "marriage."  

                By analogy, "Only persons having predominantly Caucasian ancestry are recognized as citizens in California."

                The problem is that the structure of the above sentence does not actually change the legal definition of "person," it merely adds an additional subordinate condition onto the recognition of some persons as citizens.

                Legally, the category "persons" remains unchanged; the hypothetical proposition merely picks out a subcategory of persons to which it assigns the legal status  of citizens.  

                Since the category "persons" has not been altered, it still has full legal force, including a claim of an equal protection right.  Since that right remains in force, it supersedes the subordinate clause in the sentence that selects out a subset of persons (whites) to obtain a given right (citizenship).  

                Thus, the Court's definition of marriage as an equal right, including the protected category of GLBTs, remains in effect.  The subordinate condition that is in conflict with that definition, is thereby invalidated.

            •  I just checked Wikipedia (1+ / 0-)
              Recommended by:
              Seneca Doane

              She is not Nancy Grace's mother.  However, she is the mother of another CourtTV host, Lisa Bloom.

  •  Because constitutionally guaranteed rights (3+ / 0-)
    Recommended by:
    Tonedevil, Judge Moonbox, MsGrin

    should not be subjected to referendum by ballot initiative.

  •  Look at it this way: (7+ / 0-)
    1. The California Supreme held for the very first time that the state must demonstrate a compelling reason to discriminate against persons based on their sexual orientation.
    1. What was new in this? For the first time, the court held that for purposes of analysis, sexual orientation is like gender, race, or national origin -- the state can only discriminate on these (and certain other) bases if it has a damn good reason to do so.
    1. Nothing in Prop 8 changes this aspect of the ruling.
    1. The court also held that marriage is a fundamental right that cannot be taken away by the legislature or by "statutory initative".
    1. I don't know what the court meant by "statutory initiative" -- that is, I don't know whether they meant to refer to the initiative process which has a statutory (and constitutional) basis, or if they meant to refer to an initiative which changes a statute. The distinction could be inmportant.
    1. This initiative changed the constitution.
    1. It did so in a way that purports to rip away the right to marry from a group that is a "suspect class", that is, a group that the state cannot discriminate against without a really good reason.
    1. Imagine an initiative that says "marriage is between a man and a woman of the same race."
    1. Let's say people voted for it.

    10.Would the Supreme Court uphold it?

    1. Most certainly not, because you cannot deprive a suspect class of a fundamental constitutional right, even by way of an amendment to the constitution.

    That's how it could go.

    The additional argument is that YOU CAN write discrimination into the constitution, but you would have to REVISE it and not AMEND it. To Revise it, you would need a constitutional convention. Haven't had one of those for about a century. I'd love illiberal Utahns invoke a constitutional convention in California.

    So shaddup, sit down, don't grab any old ladies' crosses and let the most likely path to victory take its course.

    Tonight I'm going to party like it's 1929.

    by Bensdad on Tue Nov 11, 2008 at 06:14:37 PM PST

    •  This is a good summary ... (2+ / 0-)
      Recommended by:
      walkshills, Seneca Doane

      ...but I think a whole lot could depend on the interpretations of your #4 and #5. Unlike you, I read that "statutory initiative" as meaning an initiative that writes a statute, as opposed to a "constitutional initiative," which amends. Which means your additional argument is the one that will matter.

      Of course, neither of us knows for sure because the ruling didn't make the justices clear. And those who signed the ruling may have a different opinion about the meaning of "statutory initiative."

      Are there other opinions in which "statutory initiative" is used the way you say they meant or the way I did? Or both?

      I'm not a legal researcher, so I have no clue. I trust we will soon find out.

      We won. But we're not done. -- karateexplosions

      by Meteor Blades on Tue Nov 11, 2008 at 06:21:05 PM PST

      [ Parent ]

    •  key point #1: clarification of "statute"... (4+ / 0-)

      You said the court said their ruling could not be changed by "statutory initiative."

      A statute is a regular law, for example a law against murder, or the earlier anti-marriage proposition that passed in 2000.  

      A constitutional amendment is a higher level of law.  

      The court could not claim that its ruling precludes a future state constitutional amendment, because the court derives its power from the constitution, and the court does not have power exceeding that which it is granted by the constitution.  

      The supporters of Prop8 claim that it is an amendment.

      We are trying to build a case that it exceeds the scope of an amendment and is actually a revision, which would require a 2/3 majority vote, in which case prop8 fails and does not take effect.  

      More below, after I get off the phone...

      •  The brief filed by....I wanna say Lamda Legal (2+ / 0-)
        Recommended by:
        G2geek, Richard Lyon

        was stellar.  I think it was about as strong an argument as there is, and I think it's pretty clear that it's not a winning argument.  

        The court obviously supports gay marriage, so the real question is: can they overturn Prop 8 w/ plausible legal reasoning.  ie, the reasoning doesn't have to be great, and it doesn't even have to be right.  It just has to be remotely plausible, so that the court doesn't look like it's nakedly seizing power from the citizenry.

        IN that light, it's a close call.  

        The tall people want what the short people's got - The Shaggs

        by burrow owl on Tue Nov 11, 2008 at 06:38:23 PM PST

        [ Parent ]

        •  i hope you're right.... (0+ / 0-)

          BTW, typo: Lambda has a "b" in it there, in case anyone wants to keyword search.

          If you're right, then this is a slam-dunk.  I don't think we should take that for granted.  The court also has another constituency, which is the US Supreme Court.  So if the CA SC's ruling is sloppy in any way, the righties on the US SC will sieze the opportunity and skewer us.  

      •  The difference under Calif. law.... (1+ / 0-)
        Recommended by:
        burrow owl

        As I understand it, this is the only difference between a "statutory initiative" and an initiative that amends the Constitution: the number of petition signatures required.

        "An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election."

        And, of course, their relative status. Constitutions trump statutes. A statute can be unconstitutional. It's difficult to conceive of a Constitutional Amendment that would be unconstitutional.

        Coming Soon -- to an Internet connection near you:

        by FischFry on Tue Nov 11, 2008 at 06:43:12 PM PST

        [ Parent ]

        •  There's a major difference (0+ / 0-)

          A constitutional revision can only be sent to the voters by 2/3 approval of both houses of the state legislature.  That is not going to happen.

          Voters get their say on the revision only after it's placed on the ballot by the legislature.

    •  Confusion of language (1+ / 0-)
      Recommended by:
      Judge Moonbox

      There are fundamental rights and there are constitutionally-guaranteed rights.

      By definition, if you change a constitution to eliminate a right, even for a suspect class, it eliminates that constitutional protection. There may be some federal protection that prevents a state from doing that, but that's a separate question.

      Fundamental rights are those that are inherent -- sometimes called natural rights -- and they exist irrespective of the Constitution.

      I don't know much about California law, so I won't comment on specifics about what the Court meant by "statutory initiative".

      Coming Soon -- to an Internet connection near you:

      by FischFry on Tue Nov 11, 2008 at 06:22:50 PM PST

      [ Parent ]

      •  The right to marry.... (1+ / 0-)
        Recommended by:
        Seneca Doane

        ....does not exist explicitly in the California constitution. It is one of those fundamental rights that derives from the constitution. The court crafted a very careful and intricate argument in this regard. That is a key point because quite obviously Prop 8 did not rip the right to marry out of the constitution. That right exists through above and beyond the constitution.

        What Prop 8 did was eliminate that right for gays. And so the constitutional right to marry wasn't eliminated. What was eliminated was the right of gays to participate in that institution.  

        The court said that if you are going to rip away rights from gays, you have to have a compelling reason to do so.  That part of the ruling still stands.

        Tonight I'm going to party like it's 1929.

        by Bensdad on Tue Nov 11, 2008 at 07:19:51 PM PST

        [ Parent ]

        •  One argument that is being advanced (0+ / 0-)

          is that it does not deny gays the right to marry. They just have to marry a person of the opposite gender. Intuitively that seems silly, but it just might hold legal water.

          •  The court already nixed that canard in May (0+ / 0-)

            They said it won't hold constitutional water.

          •  No. That was addressed in the opinion. (1+ / 0-)
            Recommended by:
            Seneca Doane

            <<A statute that limits marriage to a union of persons of opposite sexes, thereby placing marriage outside the reach of couples of the same sex, unquestionably imposes different treatment <br>on the basis of sexual orientation. In our view, it is sophistic to suggest that this conclusion is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because
            making such a choice would require the negation of the person’s sexual orientation.>>

            They completely dismised this argument. They left no stone unturned, because the bigots left no stones unthrown.

            Tonight I'm going to party like it's 1929.

            by Bensdad on Tue Nov 11, 2008 at 07:35:30 PM PST

            [ Parent ]

        •  Sounds confused (0+ / 0-)

          Either it exists independent of or it derives from the Constitution. Can't be both.

          Coming Soon -- to an Internet connection near you:

          by FischFry on Tue Nov 11, 2008 at 07:33:48 PM PST

          [ Parent ]

          •  It is both. (0+ / 0-)

            It is regarded as "constitutionally based"...and also a natural right. Only former is language is used in the opinion. There is no mention of marriage in the Constitution (at least there wasn't before Prop 8).

            It is rooted in the fundamental liberty and privacy interests in the California constitution. It is in the penumbras if you will. It is a right that predated the Constitution and which is "embodied" in it.

            It is not mentioned in it anywhere except as noted above.

            Tonight I'm going to party like it's 1929.

            by Bensdad on Tue Nov 11, 2008 at 07:44:15 PM PST

            [ Parent ]

            •  I understand that it's not mentioned (0+ / 0-)

              And, I understand that doesn't mean it's not within the penumbras of undefined generic rights language -- so long as one accepts that there are rights that are found in such a document, even if not explicitly so.

              But, it can't derive from the Constitution or exist as an independent right. It's one or the other. It gets to whether rights can exist independently of a Constitution. If they do, and a right does exist independently of, then it does not derive from the Constitution. Hence any change to the Constitution could not impair such right. If it derives from the Constitution, then it's not independent of.

              "Derives from" has to mean something....

              Coming Soon -- to an Internet connection near you:

              by FischFry on Tue Nov 11, 2008 at 07:53:16 PM PST

              [ Parent ]

              •  Marriage is one of those fundamental rights.... (1+ / 0-)
                Recommended by:
                Seneca Doane

       procreation that have an existence independent of constitutional authority ("Oh, gosh -- honey, I forgot to tell you. We can't fuck. We might have a baby and the constitution doesn't mention our right to do that.").

                However, it is also "embodied" in the California constitution. That means the courts have "read" such a right into the constitution through legal legerdemain -- legerdemain so artful that it appears that the right to marry is actually mentioned in the constitution when it is not.

                The problem here is a constitutional provision that purports to deprive a suspect class of a right embodied in the constitution, but which right is not explicitly mentioned anywhere therein. That is to say, Prop 8 did not amend the consitutional right to marry. There was no language to amend. It changed the constitution to impair the right of certain people to marry.

                Theoretically you may be able to eliminate a right embodied in the constitution. The more difficult question presetned here is whether you can limit it for some, but not all.

                Tonight I'm going to party like it's 1929.

                by Bensdad on Tue Nov 11, 2008 at 08:14:46 PM PST

                [ Parent ]

    •  Judges must face reelection. (0+ / 0-)

      I want to point out that in California, judges have to face reelection, and the Conservatives out there have used the process to get rid of judges--like Supreme Court Justice Rose Bird--for political reasons.

      I think that we should be aware of this, and that the best way to deal with the pressure is to point out that:

      1. Prop H8 won a squeaker--52%; hardly a case of the people speaking with a united voice; and
      1. The bald lies of the campaign organizers was off the scale for an initiative campaign.

      If there's a chance that some court will overturn the referendum, we need to enlarge the judges' comfort zone by counteracting any notion that this was the people's decision.

      Proud Citizen of Barackopolis.

      by Judge Moonbox on Tue Nov 11, 2008 at 06:33:29 PM PST

      [ Parent ]

      •  As you may know..... (0+ / 0-)

        Chief Justice Ron George, Republican, is one of the most respected California justices in history. The Yes on 8 made one mistake: they had a commercial accusing activist "San Francisco judges" of making this decision, implying that the decision was made by someone other than the singlemost respected living jurist in California, and therefore, among the most respected in the nation, and the world.

        This can't sit will with the bar OR the bench.

        The bench will not be happy about this.

        Ron George is in NO danger whatsoever.

        Tonight I'm going to party like it's 1929.

        by Bensdad on Tue Nov 11, 2008 at 07:23:23 PM PST

        [ Parent ]

  •  I don't understand your point (0+ / 0-)

    IF the argument is that the California Constitution can't be changed this ways, it's completely irrelevant whether the federal document provides the same, lesser or greater protections to anyone.

    Honestly, you don't explain why you think:

    "We need to think of other groups whose rights are protected by the California constitution but not the federal constitution."

    And, it doesn't make any sense to me...

    Coming Soon -- to an Internet connection near you:

    by FischFry on Tue Nov 11, 2008 at 06:16:26 PM PST

    •  In a similar case (1+ / 0-)
      Recommended by:
      Seneca Doane

      The Raven case, the voters passed an amendment saying that convicted prisoners only had the rights granted by the US Constitution, and not all the rights granted by the CA constitution.  

      It was ruled a revision, because it denied prisoners a number of protections in the CA constitution.  In May, the CA justices named four specific fundamental rights in the CA constitution that Prop 22 violated.  There are both parallels, and precedent.

  •  Prop 8 conflicts with Equal Protection Clause (4+ / 0-)

    My argument would be that Prop 8 conflicts with the Equal Protection Clause of the California Constitution.

    I don't think you can amend the California Constitution in such a way as to cherry pick which rights/freedoms are protected by the Equal Protection Clause.

    I don't think you can argue that the Equal Protection Clause states that everyone must be treated equally without regard to race, skin color, ethnicity, sex, age, and so forth and then argue except gay people who because of Prop 8 must now be treated UNEQUALLY and not be allowed to marry.

    The basic concept of Prop. 8 which is to treat gay people differently from heterosexual people violates the very core concept of Equal Protection under the law. So I believe that Prop 8 and the Equal Protection Clause of the California Constitution are in direct conflict with each other.

    In such a case I do believe that the older established Equal Protection Clause takes precedence over Prop 8 which becuae of this conflict must be rule unconstitutional.  

    Please correct me if I'm wromg but I think this is a pretty simple point that cannot be argued away by Prop 8 supporters.

    In my opinion, the only way to do away with gay marriage rights, in fact, the only way to do away with complete equality in every legal way imaginable for all gay people is to abolish the Equal Protection Clause itself.  Good luck trying that. It's not ever going to happen.

    •  I totally agree but (1+ / 0-)
      Recommended by:
      Judge Moonbox

      some sane people are not arguing this in a scientific and legally defensible way.

      By insisting on using the term "sexual preference" rather than relying on the very clear scientific evidence of normal variations in sexuality, reasonable people risk a muddying of the constitutional waters.

      In my view, the "equal protection clause" requires that the government back out of the business of defining marriage (a religious term) at all, and simply define legal partnerships--with absolutely equal rights for every citizen.

    •  equal protection: here's how that works.... (2+ / 0-)
      Recommended by:
      burrow owl, Bensdad

      The Court gave us three things:

      1. right to marry, based on equal protection.
      1.  "suspect category" status, same as race (genetic) and religion (chosen).  Note here that regardless of the righties' claims that sexuality is chosen, suspect category status moots their point because it includes religion which is chosen.  
      1.  "strict scrutiny" standard as a watchdog over violations of (1) and (2)

      Prop 8 claims to be a simple definition.  However, it fails as follows.

      In order for Prop 8 to take effect, it requires as a logical precondition, reaching back and creating an exception to equal protection.  By analogy, in order to say you are going to build a house, first you have to build a foundation.  A foundation is required in order for there to be a house.  

      Equal protection is all-or-none.  A precedent that one could take a bite out of it for a particular instance, would invalidate it altogether.  For example, "In California, religion is defined as any belief system that includes a singular unitary deity."   That definition reaches back and undoes equal protection for religions that believe in other types of theology such as polytheism, pantheism, and so on.  

      Undoing equal protection would then have impermissible consequences that far exceed the scope of an amendment and become a revision, since much of the structure of California government is predicated on equal protection applying as an undiminished whole.  

      Logically the chain of causality is this:  Definition Y requires precondition X, and precondition X creates consequence Z.  Therefore definition Y creates consequence Z, though indirectly.  If consequence Z is impermissible, then the causes of Z are also impermissible: in this case X, and through it, Y.  

      Further, Prop 8 did not explicitly rescind the suspect category status or alter the strict scrutiny requirement, so both of those elements of the ruling remain in effect.  A proposition would have to remove those elements in order to even have a chance of removing GLBTs from equal protection.  But it did not do so, thus it fails.  By analogy, in order to drive a car, the car has to have all of its wheels.  If it is missing a wheel, it goes nowhere.  

      •  That's a very precariously built structure. (2+ / 0-)
        Recommended by:
        G2geek, Richard Lyon

        Undoing equal protection would then have impermissible consequences that far exceed the scope of an amendment and become a revision, since much of the structure of California government is predicated on equal protection applying as an undiminished whole.  

        I don't see why that should be the case.  If the court upholds Prop 8, it just means that the equal protection clause is applicable to everything except for gay marriage.  That may be an irrational design for governance, but so much the worse for rationality.

        The tall people want what the short people's got - The Shaggs

        by burrow owl on Tue Nov 11, 2008 at 06:43:17 PM PST

        [ Parent ]

        •  It would mean overturning the earlier decision (0+ / 0-)

          which precisely rejects the notion "that the equal protection clause is applicable to everything except for gay marriage."  They could do that, if they want the ignominity.

          I spent the week before Election Day in Nevada and all I got is this great President!

          by Seneca Doane on Tue Nov 11, 2008 at 08:50:58 PM PST

          [ Parent ]

        •  here's a hypothetical (0+ / 0-)

          Using exactly the same sentence structure and wording as 8, with one obvious exception:

          Only religion including a singular deity is valid or recognized in California.

          Religious minorities are afforded equal protection and are a suspect class, and religious discrimination falls under strict scrutiny.  

          Are you also asserting that my hypo version of 8 can automatically undo a) equal protection for religious minorities, b) their suspect class status, and c) the strict scrutiny requirement?

          I'm asserting that equal protection is superordinate with respect to definitions that attempt to diminish it.  Where there is a conflict, the attempted diminishment fails, not the equal protection.  

          I think the reply below yours found a hole in my reasoning with respect to which elements of the original court ruling are critical here, I'll check that out next... but plus or minus that, I'm interested in your response to my hypo.

      •  Flaw in your reasoning (1+ / 0-)
        Recommended by:

        "Prop 8 did not explicitly rescind the suspect category status or alter the strict scrutiny requirement, so both of those elements of the ruling remain in effect."

        Actually, that's irrelevant. If you accept the "proposition" that being a suspect class offers protection against even discrimination that is voted in as a constitutional amendment, then the point you make above is irrelevant.

        A suspect class is a suspect class is a suspect class, etc....

        No ballot initiative could change that fact. Rather, the very existence of such a proposition only serves to reinforce the correctness of the designation.

        So, the fact that Prop 8 doesn't explicitly refer to the court's reasoning, and explicitly invalidate it -- that's irrelevant.

        Either the amendment survives without regard to those points, or it doesn't.

        It seems to me that the question is whether an implicit exception to the Constitution can be carved out in this one respect. Is a constitutional amendment per se invalid because it conflicts with the Equal Protection right -- or can that be modified by constitutional amendment?

        There is a subset of that question and that's whether this particular amendment survives scrutiny...In other words, is there a judicial review of the statute that requires meeting the strict scrutiny because the Proposition is aimed at a suspect class? SO, it may be possible to make some changes to Equal Protection rights -- such as the rather amusing amendment regarding school busing, if the disfavored class is not protected by strict scrutiny -- but still be possible to invalidate provisions that do not meet strict scrutiny.

        Coming Soon -- to an Internet connection near you:

        by FischFry on Tue Nov 11, 2008 at 07:05:02 PM PST

        [ Parent ]

        •  OK, let's go there... (0+ / 0-)

          While the system was down for maintenance I read the document by Allred et. al. Tyler & Olson v. CA.  

          From your posting above I thought you meant that suspect class and strict scrutiny supersede any attempt to amend the constitution to the contrary, and I was skeptical of that interpretation.

          Turns out that what the case document asserts is similar with an added piece:  the reason that suspect class and strict scrutiny should supersede a contrary amendment is that they are attached to equal protection, which in turn is so fundamental that it and its associated effects trump an amendment.  

          Further, the document asserts "an irreconcilable constitutional conflict" between prop 8 and the above.  I have a hunch that this phrase "irreconcilable constitutional conflict" is going to be cited by the court as a reason to support the plaintiffs and throw out prop 8.  

          OK so far, I think I follow your reasoning and it seems sound.

          Though, I'm still skeptical about what I interpret is another of your claims here, that voter-approved discrimination reinforces the strength of suspect class designation.   That would seem to get near to calling for second-guessing the voters, e.g. "if you vote for X, that strengthens the case for !X."  I don't think the court is going to go there because it would at minimum offer a handle for hostile populists to grab onto, that is not essential to the purpose of overturning 8.  

    •  asdf (1+ / 0-)
      Recommended by:

      So I believe that Prop 8 and the Equal Protection Clause of the California Constitution are in direct conflict with each other.

      True, and when laws conflict the later one prevails.  eg, they do conflict, and the loser is equal protection.  

      The tall people want what the short people's got - The Shaggs

      by burrow owl on Tue Nov 11, 2008 at 06:45:04 PM PST

      [ Parent ]

      •  Well later enactments... (1+ / 0-)
        Recommended by:
        Seneca Doane

        ...are presumed to be aware of previous enactments but Prop 8 cannot vitiate the equal protection clause, thereby wiping out a century of equal protection jurisprudence.

        Tonight I'm going to party like it's 1929.

        by Bensdad on Tue Nov 11, 2008 at 08:52:31 PM PST

        [ Parent ]

      •  This is balderdash (0+ / 0-)

        Let's use a federal example.  If Congress said that women could not longer work outside the home, it would have passed a "law," and that "later" law would be pulverized by the earlier one, viz., the Constitution.  You don't seem to get the concept of what a "fundamental right" is.

        I spent the week before Election Day in Nevada and all I got is this great President!

        by Seneca Doane on Tue Nov 11, 2008 at 08:53:25 PM PST

        [ Parent ]

      •  Incorrect (0+ / 0-)

        Th e question before the court is whether the correct procedure for overturnning its decision on EPC analysis can be done by bare majority. If the answer is yes, then EPC ananlysis is turned on its head (as per the 40 legislators who filed a friend of the court brief) and would invalidate Ct rulings in any other EPC case since they would have so set up a precedent here. That's the case in a nutshell. Does EPC analysis becoming meaningless or not. The only real questions are those of politics. Not law since there are no precedents and this is a case of first impression.

    •  It's a good argument (0+ / 0-)

      but until the court buys it, it is not yet a winning argument.

    •  Excellent... (0+ / 0-)

      Yes. That is the problem:

      1. The Equal Protection clause says that the state cannot discriminate against gays without a compelling reason to do so.
      1. This constitutional provision discriminates against gays.
      1. One of these two constitutional provisions cannot stand.
      1. Guess which one will go.

      Tonight I'm going to party like it's 1929.

      by Bensdad on Tue Nov 11, 2008 at 09:00:17 PM PST

      [ Parent ]

  •  It creates 2nd class citizens , (1+ / 0-)
    Recommended by:
    Judge Moonbox

    one class can get married
    2nd class can not .

    There was once rules that said people from china could not get married .

    There is no such thing as straight or gay marriage ,
    there is only marriage , to say say some can and some can based on whats in their shorts is not going to fly . To base it on the contents of ones shorts , is to say a same sex couple can't get married until one of them goes under the knife . This is a gross intrusion on the private lives of law abiding citizens .
    Hermaphrodites are another 2nd class that will be denied , how can they ever get married unless they get "cut" ?

    "I don;t need to , because I don't give a shit who YOU are" MAORCA ***mean people suck***

    by indycam on Tue Nov 11, 2008 at 06:19:37 PM PST

  •  Prop 8 constitutes a sweeping revision (3+ / 0-)

    of the California Constitution and was therefore not handled properly.  The California Constitution cannot be amended to limit the rights of a minority group simply by a majority vote on a ballot measure.

    According to an article in the Los Angeles Times today:

    "Proposition 8 threatens the permanent and abiding nature of the requirement that laws must apply equally to all -- the most basic principle of democratic government," said the letter from the Anti-Defamation League, Asian Law Caucus, Bet Tzedek Legal Services, Japanese American Citizens League and Public Counsel.

    -4.75, -5.33 Cheney 10/05/04: "I have not suggested there is a connection between Iraq and 9/11."

    by sunbro on Tue Nov 11, 2008 at 06:35:10 PM PST

  •  The strongest argument for Prop 8's being (1+ / 0-)
    Recommended by:

    unconstitutional, in my opinion, is provided by the U.S. Supreme Court's decision striking down the Colorado anti-gay constitutional amendment in Romer v. Evans.

    I would imagine the same arguments based on the U.S. Constitution could be used against Prop 8.  But for those who are reluctant to base a case on the U.S. Constitution (because then the U.S. Supreme Court could take an appeal,) presumably CA courts could decide that the California Constitution can be used for the same reasoning.

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Tue Nov 11, 2008 at 07:40:18 PM PST

  •  Here's a simple solution: (1+ / 0-)
    Recommended by:

    Amend the California constitution so that no one can marry a Mormon.  This isn't discrimination against Mormons - anyone can marry whomever they like, as long as it isn't a Mormon.

    Good Christians fix themselves and help others, not the other way around.

    by skrekk on Tue Nov 11, 2008 at 07:48:38 PM PST

    •  Comical... (0+ / 0-)

      ...but your example is better than you may know. In that case we would be discriminating on the basis of religion -- a suspect class. It would clearly be struck down.

      Tonight I'm going to party like it's 1929.

      by Bensdad on Tue Nov 11, 2008 at 08:54:31 PM PST

      [ Parent ]

  •  Differences betwen Cali and U.S. (2+ / 0-)
    Recommended by:
    Seneca Doane, Buster CT1K

    Under the United States Constition as it has been interpreted by the U.S. Supreme Court, sex discrimination is examined under an intermediate level of scrutiny.     The California stanrdard for sex discrimination is much stricter - in California, sex discrimination is reviewed under the highest standard, strict scrutiny.

    thus, as with sexual orientation, sex/gender discrimination is taken more seriously in California.

    •  Thanks! (1+ / 0-)
      Recommended by:
      Seneca Doane

      At last, a concrete response! :-)

    •  The Supreme Court made clear... (0+ / 0-)

      ..that this was not sex discrimination (I'm sure you are aware of that) but discrimination on the basis of sexual orientation. The US Supreme Court has never held that discrimination on the latter basis was subject to strict scrutiny (and thus impermissible); the California Supreme Court has.

      Tonight I'm going to party like it's 1929.

      by Bensdad on Tue Nov 11, 2008 at 08:56:17 PM PST

      [ Parent ]

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