On the Prop. 8 Legal Challenge

A lawsuit had been filed with the California Supreme Court asking that Proposition 8, an amendment that defines marriage as between a man and a woman, to be ruled a revision and thus not in force.

Having read up on this issue extensively, as well as the relevant case law, I would have to conclude that Proposition 8 is indeed a legitimate amendment.

Initiative constitutional amendments have been used to legalize Indian gaming, impose legislative term limits, forbid the state from engaging in racial or gender discrimination in employment, and even reinstate the death penalty.

The last two are especially relevant. An initiative amendment added Section 31 to the Declaration of Rights, forbidding the state from discriminating against "any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." In effect, it was an expansion of the scope of the equal protection clause. If revisions were necessary to affect the equal protection clause, then this section would be invalid and there would be no explicit basis in the state constitution for equal protection in public employment, public education, or public housing.

An initiative amendment added Section 27 to the Declaration of Rights, which constitutionalized the death penalty. It was added after the Supreme Court had ruled "that capital punishment is both cruel and unusual as those terms are defined under article I, section 6, of the California Constitution, and that therefore death may not be exacted as punishment for crime in this state." In that same decision, it reiterated that "The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority." It is noted that the cruel and unusual punishment clause applies to all persons subject to California law; the only dispute in questions over cruel and unusual punishment is whether the punishment is cruel or unusual. Section 27 was challenged as an illegitimate revision in People v. Frierson , the Court rejected that challenge. Thus, a fundamental right found in the state constitution's Declaration of Rights was affected by an initiative amendment.

The decision Raven v. Deukmejian did invalidate an initiative amendment- but the amendment placed drastic limits on state courts' ability to interpret the rights of criminal defendants, limiting state interpretation of state constitutional protections to the U.S. Supreme Court's interpretation of analogous U.S. constitutional protections. By contrast, Prop. 8 is extremely limited in scope- it only defines one word. State courts continue to have the power to apply equal protection on the basis of sexual preference and orientation, including whether same-sex couples, including those who got "married" before Prop. 8's passing, are constitutionally entitled to tax, inheritance, power-of-attorney, hospital visitation, and other benefits married couples enjoy. They could even rule on whether or not divorce laws apply to same-sex couples- Prop. 8 did not define divorce. And last but certainly not least, state courts can rule on whether or not Prop. 8 is in compliance with the United States Constitution.

To rule Prop. 8 as a revision would effectively state that a revision is required to define marriage, but an amendment is sufficient to define the applicability of cruel and unusual punishment over the death penalty- a life or death issue.

If I correctly understand, your research has located an instance where the California Supreme Court had interpreted the State's Constitution so as to ban capital punishment on due process and equal protection grounds. A constitutional initiative re-imposed capital punishment and the initiative was upheld as a valid procedure, i.e. it did not require a constitutional revision initiated through the legislature.

Now the homosexual right to same sex marriage lobby seeks to abrogate Prop 8 on the basis that Prop 8 revokes such a basis human right that it would constitute a fundamental revision of the state constitution such as could only be initiated in the legislature and then approved by a popular vote.

Obviously, the homosexual rights lobby cannot prevail on its argument unless the California Supreme Court partakes in an absurd, absolutely illogical exercise in mental gymnastics nonsense for no reason other than to arbitrarily impose homosexual same sex marriage on the people, and do so directly in the face of the recent enactment of Prop 8 in a democratic fashion pursuant to such power explicitly granted to the people by said constitution. I suppose the odds of such a thing happening are about 60%-40% in favor of eradicating Prop 8.

I would further suppose that the political consequences of four supreme court justices essentially formally announcing that democratic initiatives have no place in any matter that involves something which has already been decided by the higher authority of the Political Correctness Template would be nil.

If the Constitution was ever the "Supreme Law of the Land", it has been replaced by the Golden Calf of Human Secularism and if we were once a nation "ruled by laws and not men", we are now a nation ruled by supreme irony. The current irony being that adoption of Prop 8 was not seen as putting a "devisive" issue to rest, but its adoption itself was called "decisive." The violent mobs protesting the passage of Prop 8 draw no criticism. On the other hand, if the constitutional initiative process is gutted in order to impose same sex marriage, anyone who objects will somehow be branded as spewing hate.

Obviously, the homosexual rights lobby cannot prevail on its argument unless the California Supreme Court partakes in an absurd, absolutely illogical exercise in mental gymnastics nonsense for no reason other than to arbitrarily impose homosexual same sex marriage on the people, and do so directly in the face of the recent enactment of Prop 8 in a democratic fashion pursuant to such power explicitly granted to the people by said constitution.

The biggest absurdity is that a mere majority has the power to decide life or death issues but not the definition of a single word.

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