Proposition 8 To Be Reviewed By California Supreme Court
Avoiding months of pointless appeals the California Supreme Court has agreed to hear the challenge to Proposition 8, the initiative to ban gay marriage which passed with 52% of the vote earlier this month. The vote to accept the case was 6-1 so it seems justices on both sides of the earlier ruling felt it proper to hear the case now. However they did not vote to stay the law, so for the time being it remains in effect.
Pundits also debated the significance of the court refusing to hear the case until March or April. Some feel that it is a good thing for those opposing 8 because if the court was inclined to simply uphold the measure they would have done so now. It thus suggests that at least some of the Justices are undecided. Others however think it is simply the court doing the normal procedural things.
While I am sure a number of our readers think I am dumb as a doornail I am not stupid enough to try and predict what the court will do. This is a complicated legal proceeding which will require them to parse some fairly technical legal issues.
Without getting too detailed, the issue basically comes down to whether Proposition 8 is a revision or an amendment to the Constitution. An amendment can be placed on the ballot either by a majority vote of the legislature or by gathering signatures. But a revision requires a 2/3 vote in the legislature before it can go before the people. Since 8 was placed on the ballot by a petition process, it would be invalid it this is a revision.
The key issue of what an amendment is and what a revision is does not seem to have a clear answer. The No on 8 supporters argue that since the original court ruling was based on Equal Protection Law that this is a revision because it changed that key part of the document. Prop 8 supporters counter that it simply restored ‘traditional marriage’.
Those who have read my posts are aware of my opposition to this initiative and so I admit to having a slight bias. But I tend to think the No side has a better argument. Whether you agreed with the original court ruling or not the fact remains that the court did rule that under the Equal Protection and Privacy Clauses of the California Constitution that same sex marriage was a right.
By specifically outlawing this right it does seem that they have made a fairly major revision of those clauses. Consider for example if the Proposition had instead banned interracial marriage or taken away the rights of certain races to marry. This would certainly be struck down as a revision.
But it now looks like we have until next year to find out for sure.
4 Responses to “Proposition 8 To Be Reviewed By California Supreme Court”
You have to love a legal system where the courts can decide that a constitutional amendment is unconstitutional.
The left is creating a system where people will not be able to petition the government or make changes because any change can be overruled by the courts.
It is hard to image any legal theory that allows the courts to throw out a constitutional amendment because they do not like it but California's legal system has been doing it for decades.
Super D, you're right about how things are and how they have been for decades now — what so often the Left cannot get legislated, i.e., made into law the legitimate way, they seek to have made into law by the will and whim of a like-minded judge. It's despicable.
In this case, though, there may be legitimate legal issues involved. Oh, it's just an excuse some on the Left want for trying to get the proposition overthrown any way they can (legitimately or otherwise) and I'd like to see all the arguments being made before the court, not merely the (legitimate) legal arguments. But this may well be a case of a legal technicality that invalidates the proposition.
Well to be fair guys this is an issue of doing things the right way.
If someone tried to amend the US Constitution by getting 51 votes in the Senate it just wouldn't happen even if all 50 states ratified, the procedure is the procedure.
If they needed to go through the legislature in this case and did not, that is not the fault of the courts or the left (or right or middle for that matter)
One clue about the possible outcome is the failure to get a stay. Stays are granted or not granted on the likelihood of prevailing on the arguments.