Originally Posted By Hans Reinhardt Most of you know where I stand on this issue, and this topic has been discussed pretty much to death here. With that said, I wanted to share the news that the California Supreme Court will decide on whether or not to overturn Prop 8 on Tuesday. I'm keeping my fingers crossed. <a href="http://latimesblogs.latimes.com/lanow/2009/05/proposition-8-decision-will-occur-tuesday-california-supreme-court-says.html" target="_blank">http://latimesblogs.latimes.co...ays.html</a>
Originally Posted By SingleParkPassholder I'm not holdig my breath. The arguments presented to the court to overturn it were not very coherent. A lot would have to be inferred from them to make it work.
Originally Posted By Dabob2 <The arguments presented to the court to overturn it were not very coherent. A lot would have to be inferred from them to make it work.> That's disappointing. There was certainly a case to be made, i.e. that prop 8 constitutes a revision rather than an amendment. Did the "against" forces just kind of blow it and not mount a good case?
Originally Posted By SingleParkPassholder "That's disappointing. There was certainly a case to be made, i.e. that prop 8 constitutes a revision rather than an amendment. Did the "against" forces just kind of blow it and not mount a good case?" Yeah. IIRC, they didn't go much near equal protection, which I couldn't understand, as neither did a lot of others.
Originally Posted By SingleParkPassholder As good a summation as any: <a href="http://www.latimes.com/news/printedition/front/la-me-prop8-supreme-court6-2009mar06,0,2781358.story?page=2" target="_blank">http://www.latimes.com/news/pr...y?page=2</a>
Originally Posted By SuperDry <<< There was certainly a case to be made, i.e. that prop 8 constitutes a revision rather than an amendment >>> I think the whole revision vs amendment argument was specious at best. I think it's pretty clear that the anti-Prop8 folks didn't like the results of the election and were grasping at a way to get it overturned, working backward from the desired outcome back to the revision/amendment argument. Note that I'm not saying that I support Prop 8, but the place to fix it is to overturn it at the ballot box next time around.
Originally Posted By Hans Reinhardt I think that's debatable since the premise (taking away established civil rights) was what got the anti-prop 8 folks riled up. Had this passed BEFORE the courts granted same sex marriage, I don't think there would be as much of an uproar. The new debate should be whether or not voters in California can continue to weigh in on civil rights decisions or should such matters be left up to the legislature.
Originally Posted By SuperDry One of the functions of a constitution is to define what the civil rights are, and constitutions get amended from time to time.
Originally Posted By Dabob2 Yeah, I don't think it's such a bad argument (and not only for this matter) to say that certain things - like denying equal protection under the law - aren't a mere amendment of the constitution and do represent something more serious that shouldn't be subject to popular whim. Having said that, part of me knows full well that if the court reverses this, the folks who scream about "activist judges" will just scream louder than ever. Maybe it WOULD be better to overturn it at the ballot box, which must happen eventually. Fairly soon in California, one would think.
Originally Posted By SuperDry <<< like denying equal protection under the law - >>> Well, Prop 8 can't possibly be in violation of any equal protection clause in the CA constitution, as the assumption would be made that it overrides any and all previous conflicting text. So, the argument would have to be that it violated the equal protection clause in the US constitution. Could a state court make a determination that the state constitution is in violation of the federal constitution?
Originally Posted By Hans Reinhardt "One of the functions of a constitution is to define what the civil rights are, and constitutions get amended from time to time." Well, yes, but aren't they typically amended by people who are entrusted to enact laws? One of the tenants of a stable democratic society is ensuring that a constitution can't be changed willy nilly based on the whims of the ever changing attitudes of the masses. Does anyone know if there are other states' constitutions that permit constitutional amendments by a vote of the people in a general election?
Originally Posted By Dabob2 <<< like denying equal protection under the law - >>> <Well, Prop 8 can't possibly be in violation of any equal protection clause in the CA constitution, as the assumption would be made that it overrides any and all previous conflicting text.> Really? So California could outlaw interracial marriage, say, by proposition and that would overrule existing law? <So, the argument would have to be that it violated the equal protection clause in the US constitution. Could a state court make a determination that the state constitution is in violation of the federal constitution?> I don't know. Hans' question is a good one. A constitution by definition, even a state one, is something that sets certain bedrock principles. It seems to me that California's is awfully easy to amend by popular whim... which is maybe why the stricter "revision" classification exists. Surely SOME principles must exist to which "revision" would apply rather than "amend" - otherwise, why have the two categories? California's constitution is easier to amend than most states', and I understand that... but surely there are certain things the populace can't vote in, and isn't a function of the courts to determine what those things are?
Originally Posted By SuperDry <<< Well, yes, but aren't they typically amended by people who are entrusted to enact laws? One of the tenants of a stable democratic society is ensuring that a constitution can't be changed willy nilly based on the whims of the ever changing attitudes of the masses. >>> I totally agree. The fact that the CA constitution can be amended by a simple majority of the voters in a single election provides no protection from "heat of the moment" or as you put it willy-nilly whims of the electorate. But, recognizing that doesn't suddenly make the CA constitution not that way. For whatever reason, the voters are allowed to amend the state constitution with a simple majority vote. That puts most things defined by the state constitution, including state-originated civil rights, at the whim of the voters in a single election. I don't think it should be that way, but it is that way. It's at the opposite end of the spectrum of the US constitution, which is very difficult to amend and although there is no specific timetable, the amendment process by its very nature makes it take several years at best. Compare this to the system in place in Nevada: in Nevada, an initiative that amends the state constitution only requires a simple majority vote, but it must achieve this in two separate general elections. So, if California's constitution amendment process were the same as Nevada's, Prop 8 would not yet be in force. Instead, since it passed the first time, it would appear in identical form on the next general election ballot, and only if it also passed a second time would it actually amend the constitution. That sounds like a reasonable protection against a civil right being taken away due to a temporary whim.
Originally Posted By SuperDry <<< Surely SOME principles must exist to which "revision" would apply rather than "amend" - otherwise, why have the two categories? >>> The way I understand the difference is that a revision would be something that changes the basic structure of the constitution, say for example, replacing democracy with a monarchy, or changing the legislature from bicameral to unicameral. But adding or removing individual civil rights seems to be an amendment to me.
Originally Posted By SuperDry <<< Really? So California could outlaw interracial marriage, say, by proposition and that would overrule existing law? >>> According to the state constitution, yes. But keep in mind that all state constitutions must also conform to the US constitution, and the US Supreme Court has ruled that bans against interracial marriage are unconstitutional at the federal level. If a state constitution were to be amended to prohibit interracial marriage, it would have no legal effect. But the same is not true for gay marriage, as the US Supreme Court has never ruled that gay marriage is protected by the US constitution.
Originally Posted By SuperDry <<< California's constitution is easier to amend than most states', and I understand that... but surely there are certain things the populace can't vote in, and isn't a function of the courts to determine what those things are? >>> The problem is that the court has no authority beyond that granted it by the constitution (setting aside for the moment the issue of judicial activism). And when ruling whether something is or is not constitutional, the court's function is to make decisions as to how the constitution applies to a particular situation if it's not already clear. But in the case where the constitution itself gets changed, and it's abundantly clear what that change means, it's not really the function of the court to decide otherwise.
Originally Posted By SingleParkPassholder "I totally agree. The fact that the CA constitution can be amended by a simple majority of the voters in a single election provides no protection from "heat of the moment" or as you put it willy-nilly whims of the electorate." And yet, It takes a 2/3's vote in the legislature to raise taxes. Go figure. And to answer a previous question- yes the argument could be made that the law violates the federal constitution as opposed to the state because the state can't enact laws that restrict right granted by the feds. The state can only expand them.
Originally Posted By Hans Reinhardt It's a forgone conclusion that if the justices rule in favor of the majority vote the issue will be placed in front of the voters again in a year or so. It will likely be that gay marriage advocates in California will eventually get their way. And what then? Another voter referendum and millions of dollars spent to overturn it?
