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    November 17, 2008

    Prop 8 and common sense (II)

    Posted by: Andoni

    Dsc03905Last week I suggested some common sense reasons why the California Supreme Court should invalidate Prop 8. Here's one more they should consider.

    Conceivably pro-same sex marriage advocates could put the question on the ballot again in 2010. This time for numerous reasons, including that it is not a presidential election year, same sex marriage may win by the same narrow margin by which it just lost. Same sex marriage would once again be legal. That of course would provoke the anti-same sex marriage folks, including the Mormons, who would redouble their efforts in the presidential election year of 2012 to once again outlaw same sex marriage. They might be able to win again in 2012.

    I think you get the picture. With the margin of victory or loss being so close, there could be a ridiculous back and forth legal mess. The Supreme Court should consider the possibility of on again, off again civil rights and all that implies before they validate Prop 8. Civil rights by a simple majority that could change every couple of years would be a disaster.

    One final point. In its 4-3 decision to legalize same sex marriage in California, the court said there was a fundamental right in the constitution for gays to marry. They used sweeping language placing sexual orientation in the same category as race and gender. Going beyond marriage, they generalized that there was no legitimate basis in California to deny or withhold legal rights on the basis of sexual orientation . Here is just one quote from the decision (emphasis mine):

    Furthermore, in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation—like a person’s race or gender—does not constitute a legitimate basis upon which to deny or withhold legal rights.

    In my common sense law book, that 4-3 decision inserted the fact that gays are equal everywhere in the constitution of California. So by my simple minded thinking this has to be the starting point for all seven justices (even the three who voted against same sex marriage last May) as they deliberate the current lawsuit to invalidate Prop 8. Gays are now equal in every aspect in the constitution -- so said that 4-3 decision. We are equal in the marriage clauses, we are there in the equal protection clauses --we are everywhere in that constitution.

    So for the justices to conclude that defining marriage as between a man and a woman is a simple small change (an amendment - requiring only a simple majority) that doesn't fundamentally change or unbalance the whole constitution (a revision - requiring a 2/3 vote by the legislature before going to the people) would be a stretch and a dishonesty. You can't have gays along side blacks and women in the equal protection clause (everyone has to be equal in this state), and then strip gays of some rights a few paragraphs later. That would be an incompatible situation. That would also be a major change (revision) to the constitution and Prop 8 was not done properly to be a revision or major change.

    I can see the three justices who voted initially against same sex marriage want to vote that Prop 8 was done properly, but that would be dishonest. If truly a supreme court decision on constitutional matters becomes part of the constitution, then the marriage decision in May wove us quite deeply into that constitution and it would take more than a simple majority to take us out.

    I'm told the decision will come within six months. We'll see if the justices (especially the three who dissented in the original marriage case) are intellectually honest with themselves honoring stare decisis (prior decisions) or if they revert to their preconceived ideologies (don't approve of gay marriage, no matter what) and vote that Prop was simply a minor change to the constitution.



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    1. Kevin Norte on Nov 17, 2008 9:03:00 PM:

      The May 15, 2008 decision clearly holds that the definition of marriage is not subject to a voter initiative. On page 781 of the original mariage case, the Court held that marriage is "so integral to an individual's liberty and personal autonomy that they may not be eliminated by the Legislature or by the electorate through the statutory initiative process." 43 Cal.4th at 781. The revision argument was a pre-election challenge that I though up and wrote about. If I was suing I would use more than that for a post election challenge.

    1. Strict Scrutiny on Nov 17, 2008 11:11:35 PM:

      Wow. Hat tip to Kevin Norte for being such a punctilious and careful reader of the opinion. Excellent job.

      After reading this, I am now more hopeful that the Court will overturn Prop 8.

      To address Andoni's concern about a constant see-saw struggle for our marriage rights (we win, we lose, we win, we lose, etc.) ...

      I don't think that will happen. If we have to do another initiative in 2, 4, or 6 years, and if we win, it will stick. It is widely believed that there was a generational gap on this issue -- older people voted against us, younger people for us. This voter gap will resolve in our favor evetually. We're headed toward marriage equality, and once we cross the threshold, it ain't goin' back.

    1. cabana republicana on Nov 18, 2008 9:48:11 AM:

      I think Kevin Norte ghost wrote the opinion....not that there is something wrong with that. I hope Arnold makes him a judge. He deserves it.

    1. Hawyer on Nov 19, 2008 11:57:10 AM:

      Good idea, but California still has to deal with Justice Carol Corrigan. With lesbos like that, who needs Mormons ? Jeez!

      REMEMBER: http://citizenchris.typepad.com/citizenchris/2008/06/californias-dis.html

    1. Kevin Norte on Nov 21, 2008 2:23:53 AM:

      And one probable revision that the Yes side did not see falls under the category of unintended consequences. If an amendment unintentionally changes how California operates, it is a revision. Here is the kicker, Prop 8 removes LGBTS from Equal Protection. EP applies to everyone. Even if it could be done, it would have had to go to the legislature first (ergo violated separation of powers too).
      We might get a 7-0 decision without ever discussing marriage.

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