All Eyes on SF Court Today for Prop. 8 Decision

NBC11 ^ | Wed, Nov 19, 2008

[nickcarraway]

Wednesday could be a big day in the fight over Proposition 8, a ban on same-sex marriage in California that voters approved Nov. 4. That's when the California Supreme Court could decide whether to review several lawsuits filed by Prop 8 opponents.

The groups claim the ballot measure is unconstitutional. The court could also issue a stay on Prop 8 while it decides.

That would allow same-sex marriages to resume until a final ruling is made on the lawsuits.

Four Bay Area counties are the latest to join the legal fight to try to stop state Proposition 8. The Board of Supervisors for Alameda, Marin, San Mateo and Santa Cruz counties have approved joining the lawsuit filed in the California Supreme Court by the cities of San Francisco and Los Angeles and Santa Clara and Los Angeles counties.

The lawsuit is one of six cases filed directly in the state high court in San Francisco to challenge the Proposition 8. All six lawsuits contend the measure is a constitutional revision, not an amendment, because it strips a minority group of a fundamental right.

San Mateo County Board of Supervisors President Adrienne Tissier said, "This is a civil rights matter."

The other five lawsuits were filed by two sets of same-sex couples, five civil rights organizations, two women's rights groups and the California Council of Churches.

The cases are on a list for discussion at the justices' weekly conference Wednesday, but Holton noted that the listing doesn't necessarily mean the court will take action Wednesday rather than a later date.

The panel has the options of either rejecting the cases without a hearing or granting review, hearing arguments and issuing a written ruling at a later date.

Proposition 8, which states that "only marriage between a man and a woman is valid or recognized in California," overturns a decision in which the court said by a 4-3 vote in May that the constitution's equal protection guarantee provides a right to same-sex marriage.

The initiative was enacted as a constitutional amendment by an approximately 52 percent majority of voters.

A constitutional revision would require approval of two-thirds each house of the Legislature as well as a majority of state voters.

[goldstategop]

They could take it up or dismiss the suits. We'll see if anything comes out of the California Supreme Court by day's end.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[SFR]

Hopefully we will see riots in San Francisco on the evening news.

[Genoa]

Tell me how a constitutional amendment could be considered unconstitutional. Isn’t that what amendments are for?

[Genoa]

Now I see it.
“All six lawsuits contend the measure is a constitutional revision, not an amendment, because it strips a minority group of a fundamental right.”
Call me dense, but I don’t know what the difference is between an amendment and a revision.

[goldstategop]

They can't declare a constitutional amendment unconstitutional. But they can decide its a revision and declare its adoption invalid because it should have been passed in the manner prescribed for a revision. Based on past precedent however, they will say its an amendment and it stands. The gay community is not left without recourse. They can try to persuade voters to repeal it in a future election.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[Genoa]

And what makes a revision a revision and not an amendment?

[goldstategop]

A revision is a sweeping change to the basic plan of government that amounts to a rewrite of the constitution by altering the structure, powers and responsibilities of the three branches of government. An amendment is a more limited change that improves the way government works or carries out better an already existing intent. Based on that distinction, Prop. 8 is an amendment.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[OneWingedShark]

>Hopefully we will see riots in San Francisco on the evening news.

One can only hope... and buy ammo.

[Genoa]

Quite helpful, thanks.

[nickcarraway]

So, it will be on the ballot in every election until it passes?

[goldstategop]

A revision can be initiated only through the State Legislature or through a constitutional convention. A constitutional amendment on the other hand, may be initiated either by the State Legislature or by the voters through the exercise of the initiative power. Both must be voted on separately and be approved by a majority of the electors before they can be adopted. Its really a procedural distinction between the two methods of changing the California Constitution.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[goldstategop]

Its very difficult to get a constitutional amendment qualified for the ballot and even more difficult to get them passed. Most fail.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[bone52]

If they declare this a revision they will have effectively eliminated the amending process in the California Constitution because Proposition 8 is about the smallest change that could possibly be made to a constitution.

Also, finding that the amendment was a revision would be a huge step towards the destruction of America as the decision will be neither principled nor colorably allowable under the California Constitution.

[B Knotts]

So, it will be on the ballot in every election until it passes?

That's the commie leftist way. They just keep throwing stuff at you until you stop fighting because you're overwhelmed with it all.

[Genoa]

Maybe California needs to amend (revise?) their constitution to make any change an amendment. It seems to work for the US Constitution. That way, no messy situations trying to define which is which.

[dbz77]

Here is the relevant case law: 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 not least, state courts can rule on whether Prop. 8 is consistent with the United States Constitution.

[Political Junkie Too]

If the amendment/revision process were not properly followed, then Jerry Brown should not have let it proceed to the ballot in the first place. The fact that he did gives it the legitimacy of proper procedure.

As to what the court might decide, what are their options? Have any hearings been held yet? Have the sides had their opportunity to make their cases yet? Is the court only going to decide to hear it or not, or can they issue a ruling without hearing any arguments for and against?

-PJ

[goldstategop]

They'd have to overrule all of their precedents to reach that result. And if the Justices were perceived as throwing out Prop. 8 to undo the will of the people, a recall drive would certainly be launched against them. We will see if they have the political balls to do it.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[goldstategop]

The same arguments in this case were brought this summer to the California Supreme Court by Prop. 8 opponents in a bid to have the Court remove it from the ballot. The Court turned them down without comment. I can't see it reaching a different result this time.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus