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California Supreme Court "interested" in challenge to Prop 8:

That's according to the title of this story in the San Francisco Chronicle . Apparently, the state high court has ordered the state attorney general to respond to the lawsuit filed by opponents of Prop 8 last week arguing that the measure was an unconstitutional "revision" of the state constitution rather than an "amendment." (For my thoughts about the substance of the lawsuit, see my post here. For Eugene's more skeptical view of the claim, see his post here.) According to the story, the response is to be limited to the question whether the state supreme court should even hear the dispute and whether it should enter a stay, or dismiss the suit and let it be litigated initially in the lower state courts.

I know almost nothing about California state court practice and would be interested in whether those who do know more about it see this as a signal that, as the Chronicle puts it, "the justices are taking the cases seriously."

Hoosier:
the lawsuit filed by opponents of Prop 8 last week arguing that the measure was an unconstitutional "revision" of the state constitution rather than an "amendment."

So one hopes for a strict-constructionist interpretation from the Cali Supremes?


IANAL: Is there some sort of legal limit on irony in cases like this?
11.14.2008 4:52pm
TNeloms:
I'm sure someone has answered this elsewhere, but I haven't seen it. Why is this challenge happening *after* the proposition passed? Why didn't they just challenge its status as an amendment before it went to the vote?

If the court rules that it should be a revision, there will be a huge backlash and proponents will feel that the court has once again overridden the will of the people. If on the other hand they had ruled that it was a revision *before* the vote and it simply failed to reach the necessary supermajority vote, this would generate much less ill-will. Can someone clarify?
11.14.2008 4:58pm
Prof. S. (mail):
Of course they're interested. Who doesn't like a second chance to annoint yourself king and pass the laws you see fit? What judges wouldn't love to tell the people that they know better than them not just once, but twice.
11.14.2008 5:00pm
RK:
There was a challenge on the issue of revision vs. amendment well before the vote. The CA Supreme Court decided not to hear the challenge (I'm guessing in the hopes that Prop. 8 wouldn't pass and that they wouldn't have to address the issue).
11.14.2008 5:04pm
Craig Oren (mail):
My feeling is that the California Supreme Court's request is routine. In California practice, one may petition for a writ requesting extraordinary relief, and then the Supreme Court asks for a response.

As for the earlier question, the California Supreme Court take the view that there's no sense reviewing an initiative before it passes, because there's really nothing to decide.

I should finally add, perhaps, that the California Supreme Court is not all *that* liberal. Beside, its justice have to face the voters regularly for an up-down vote a la Rose Bird and her allies.
11.14.2008 5:05pm
Realist Liberal:
TNeloms~


I'm sure someone has answered this elsewhere, but I haven't seen it. Why is this challenge happening *after* the proposition passed? Why didn't they just challenge its status as an amendment before it went to the vote?

If the court rules that it should be a revision, there will be a huge backlash and proponents will feel that the court has once again overridden the will of the people. If on the other hand they had ruled that it was a revision *before* the vote and it simply failed to reach the necessary supermajority vote, this would generate much less ill-will. Can someone clarify?


This type of lawsuit was filed before the vote. The Cal. Supreme Court followed its standard practice of deferring the lawsuit pending the vote. Now the deferment time has ended.

Prof. Carpenter~
It's not unheard of but it is pretty rare for the justices to ask for further briefing in cases like this.
11.14.2008 5:06pm
FWB (mail):
What about the following do the cali supremes NOT understand? The Courts ARE NOT in charge. The People are in charge.


For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.

Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6


Dominus providebit
11.14.2008 5:08pm
ForWhatItsWorth:
Not being a lawyer, I may not have this right, but doesn't the refusal to hear the case prior to the vote make it impossible for them to do so afterwards?

"....There was a challenge on the issue of revision vs. amendment well before the vote. The CA Supreme Court decided not to hear the challenge ...."

Am I missing something here? If they are to decide the exact same thing (amendment vs revision), doesn't their prior refusal to hear the case set some sort of precedent, at least? This is weird and one heck of a way to "legislate."

I hope the gay community realizes that all this ruckus WILL come back to haunt them in the future. It is only a matter of when, not a matter of if it will.
11.14.2008 5:10pm
Cornellian (mail):
Calling on the AG to state its position hardly qualifies as being "interested" in the case.
11.14.2008 5:12pm
FWB (mail):
The People are the Creator of the constitution and are the only superior. All governmental entities are subordinate to the constitution as creations of the constitution. The People therefore are the ONLY vehicle available to change the Constitution, which is rules for the government ONLY and not rules for the People. Any change in any manner that the People make is proper.

Please note:

"...That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness..."

Dominus providebit!
11.14.2008 5:12pm
Cornellian (mail):
Am I missing something here? If they are to decide the exact same thing (amendment vs revision), doesn't their prior refusal to hear the case set some sort of precedent, at least? This is weird and one heck of a way to "legislate."


Refusing to hear a case isn't the same thing as ruling against that case on the merits.
11.14.2008 5:13pm
24AheadDotCom (mail) (www):
I have no answer to the question, but the idea of what the voters want having to be "corrected" by their betters reminds me of what happened with Prop187.
11.14.2008 5:13pm
Cornellian (mail):
What about the following do the cali supremes NOT understand? The Courts ARE NOT in charge. The People are in charge.

You'd have a better argument if you didn't rely on a quote from Blackstone who was talking about a jurisdiction which has no written constitution, no Bill of Rights type limits on governmental power and, by the way, no ballot propositions.
11.14.2008 5:15pm
David Schwartz (mail):
FWB: The whole point of *having* a Constitution and of being a Republic rather than a pure Democracy is precisely that 51% of the people can't agree to take away the fundamental rights of the other 49%.
11.14.2008 5:16pm
Kent Scheidegger (mail) (www):
Dale, given the high profile of the case, I wouldn't read much into the court requesting a response before deciding whether to take it. The action does indicate the case is getting more attention than the typical case, but we have all known from the beginning that this was not a typical case.

ForWhatItsWorth, in cases of this type, the court has the discretion to hear the petition or not. When initiatives are challenged on this ground before the election, the usual course is to wait for the election. After all, if the voters nix it, there will be nothing to decide. Turning the petition down at the preelection stage does not preclude a fresh consideration of the issue postelection.
11.14.2008 5:20pm
ForWhatItsWorth:
Cornellian, I understand what you are saying, but don't you think it odd that the court refused to hear it before and now it will? It isn't like anything changed at all..... other than it was voted on. In every other way, what they are possibly going to decide is exactly what they were being asked to decide before...... yet they refused to do so.

It almost sounds like backlash against the voter..... and I am pretty sure that is exactly the way it will be perceived by that voter. Odd (and dangerous) in the extreme.
11.14.2008 5:21pm
ForWhatItsWorth:
Kent, thanks. I just think that they should have heard it in the first place. If nothing else, "if it passes," and it is really questionable whether it should be there in the first place, you would save alot of angst on everyone's part if you did it straight up.

They could have saved a tree and shortened the form..... and not have alot of people waste their time voting for or against something that won't fly anyway. :)
11.14.2008 5:25pm
Nathan_M (mail):

Cornellian, I understand what you are saying, but don't you think it odd that the court refused to hear it before and now it will? It isn't like anything changed at all..... other than it was voted on. In every other way, what they are possibly going to decide is exactly what they were being asked to decide before...... yet they refused to do so.

The reason the court declined to hear the case was that if prop 8 failed the question would become moot, and so the case would have been a waste of resources and court time. Now that prop 8 has passed there is no concern about the case becoming moot -- that is what has changed.
11.14.2008 5:40pm
Bob Van Burkleo (mail):
There was a challenge on the issue of revision vs. amendment well before the vote. The CA Supreme Court decided not to hear the challenge

Here in Washington state we have a guy who has turned the initiative process into a cottage industry. His initiatives have been found unconstitutional several times BUT the courts will not rule on them until they have been passed. The jist is they can't evaluate hypothetical law, only rule on law that actually exists, and from a practical stand point it would be a killer way of tying up the court by putting forward flawed law on purpose if they had any obligation to pre-vet it.
11.14.2008 5:47pm
Ron Rounds:
Apologies if this has been asked, but if we assume that Prop 8 was an amendment and not a revision and is therefore legally enacted - would a subsequent proposition repealing it be a revision of necessity and require a 2/3s vote to pass?
11.14.2008 5:56pm
jackson:
It would be odd not to ask the AG for views on a matter touching the constitutionality of a state enactment, whether by the legislature or through initiative. In the federal sysstem and in many states the courts are required by statute to refer questions of the constitutionality of statutes to the AG
11.14.2008 6:00pm
David Schwartz (mail):
FWIW: What changed is that there is now a live controversy. Before, their opinion would have been purely advisory. If I plan to do X, you probably can't sue to stop me. But once I do it, ...
11.14.2008 6:03pm
Kent Scheidegger (mail) (www):
Ron, no. That would be an amendment as well, and it could be put on the ballot and passed the same way Prop. 8 was.
11.14.2008 6:04pm
gasman (mail):
Of course the justices are taking this prop 8 thing seriously.
A constitutional amendment really pisses them off because it usurps their ability to legislate. How dare the mere citizens of the state they rule not only have an opinion, but then they have the nerve to force it upon the supremes. They cannot stand for this.
11.14.2008 6:07pm
Kent Scheidegger (mail) (www):
They've stood for it multiple times, gasman: the death penalty, the exclusionary rule, reciprocal discovery, and a host of others.
11.14.2008 6:16pm
first history:
Apologies if this has been asked, but if we assume that Prop 8 was an amendment and not a revision and is therefore legally enacted - would a subsequent proposition repealing it be a revision of necessity and require a 2/3s vote to pass?

All it would take is another amendment passing with 50% + 1 votes. That is one of the problems with the California initiative process--constitutional amendments are too easy to make (the California Constitution has been amended over 500 times.)

Another problem is the fact while the legislature must pass the California budget with a 2/3 vote it takes only a majority of voters to obligate spending.
11.14.2008 6:19pm
Wahoowa:
Maybe it would be a little easier for the non-lawyers to frame the issue like this:

If the court hears the case, the ultimate question is whether Prop. 8 actually passed and became law. Deciding whether it's an amendment or revision is merely a step on that path because the answer to that question determines how many votes the proposition needed.

If they had taken the case prior to the election, the only question would have been "what is it?" Courts typically won't engage in those sort of games (aside from the occasional state supreme court with advisory power) because there is no real controversy at that point--it's merely an academic exercise. Their decision would have had no real-world effect. Post election their decision would have an effect because at that point the courts have to decide "what the law is" (i.e., can we have married gays?)
11.14.2008 6:23pm
ForWhatItsWorth:
BVB and DS: GREAT point. Duuuhhhh. I'm really not an idiot, I promise. Of course they can't act on a law that isn't one, yet. Sheesh!

On the other hand, it would be nice if they could. If a measure has enough votes or signatures to get it on the ballot, it would seem there would be a way for them to rule on it. But, that would probably have some unintended fallout, too.
11.14.2008 6:26pm
Metoo:
Let me see if I understand this - Obama wins (which I think is very bad for my country) and I have to live with it and deal the best I can because the 'people have spoken'. But if the California people vote to define mariage as between one man / one woman - then potest, take to the courts and cause general disruption until you get your way - To hell with the 'people have spoken' garbage.
11.14.2008 6:38pm
PubliusFL:
Wahoowa: "If the court hears the case, the ultimate question is whether Prop. 8 actually passed and became law. Deciding whether it's an amendment or revision is merely a step on that path because the answer to that question determines how many votes the proposition needed."

That's a good way to put it. I took a look back at my sample ballot and ballot pamphlet, and it doesn't look like there was anything specifying that a simple majority would be sufficient to enact the proposition. So you're right, hearing the case before the election wouldn't have made any difference to how the election was run (by the state) and the only question is whether the way the vote actually turned out makes Prop 8 law now. On the other hand...

Nathan_M: "The reason the court declined to hear the case was that if prop 8 failed the question would become moot, and so the case would have been a waste of resources and court time."

I wonder whether the time and resources potentially saved by not hearing (in advance of the election) a challenge to a proposition that might not pass outweighs the time and resources wasted by letting people wage a fierce campaign over a proposition that passes but then gets struck down. I'm betting it's not even close, and that tens of millions of dollars and God only knows how many man-hours were invested on both sides of the issue that would not have been invested if people knew in advance that a 2/3 majority was required. Nobody expected Prop 8 had a chance of winning THAT big.
11.14.2008 6:48pm
John (mail):
Isn't there some way to recall a Cal. Sup. Ct. justice before his or her term expires? Or am I misremembering this?
11.14.2008 7:00pm
tom:



You'd have a better argument if you didn't rely on a quote from Blackstone who was talking about a jurisdiction which has no written constitution, no Bill of Rights type limits on governmental power and, by the way, no ballot propositions.


Ah yes. Blackstone is irrelevant because our written constitution, bill of rights, and ballot propositions never ever lead to differences of interpretation...
11.14.2008 7:06pm
first history:
There is precedent for overturning constitutional amendments that take away protections previously established. A historical analogue in California to Prop 8 could be 1964's Proposition 14, which was designed to overturn the Rumford Fair Housing Act(now Government Code Sec. 12955 et. seq.) The Act provided that landlords could not deny people housing because of ethnicity, religion, sex, marital status, physical handicap, or familial status.

The California Real Estate Association sponsored Prop 14, which would have overturned the Act. Prop. 14 passed nearly 2 to 1. However, the California Supreme Court (and subsequently the US Supreme Court) ruled in Reitman v. Mulkey 387 U.S. 369 (1967). The California Supreme Court argued that not only did Prop. 14 repeal the Rumford Act, but involved the state in affirmatively in discrimination. The US Supreme Court agreed:


The judgment of the California court is . . . that (Prop 14) unconstitutionally involves the State in racial discriminations and is therefore invalid under the Fourteenth Amendment.

. . . (The California Supreme Court) held the intent of (Prop 14) was to authorize private racial discriminations in the housing market, to repeal the Unruh and Rumford Acts and to create a constitutional right to discriminate on racial grounds in the sale and leasing of real property. Hence, the court dealt with (Prop 14) as though it expressly authorized and constitutionalized the private right to discriminate. . . . [T]he court assessed the ultimate impact of (Prop 14) in the California environment and concluded that the section would encourage and significantly involve the State in private racial discrimination contrary to the Fourteenth Amendment.
(see footnote 2 of the opinon for the text of Prop 14, renumbered as Article 1, Sec. 26 of the California Constitution.


So opponents will argue that Prop. 8 will involve the state in affirmatively supporting discrimination (now that the right has been establlished by the state.
11.14.2008 7:15pm
John Howard (eggandsperm.org) (mail) (www):
Kent and First History, how can you two be so sure in your answer to Ron's question about another ballot question being another amendment as opposed to a revision?

If you're just asserting your opinion, I say you're wrong, because a second ballot question would clearly be changing, rather than adding to, the Constitution as it exists at the time. How could the old one and the new one co-exist together? There's that word "only" that would have to be stricken from the Constitution, which is clearly revising the Constitution.
11.14.2008 7:21pm
Thomas_Holsinger:
I wouldn't read much into this. The basis for the challenge is as important here as the underlying issue, i.e., whether the court needs more of a factual record about the practical effects of the initiative being so extensive that it's a revision rather than an amendment.

The opponents of Proposition 8 should, perhaps, be careful of poisoned bait here. They might err in going for an immediate ruling if they contend that the issues are simple and do not need consideration of evidence, because that might be construed as an admission that Proposition 8 is a mere constitutional amendment.
11.14.2008 7:22pm
Cornellian (mail):
Let me see if I understand this - Obama wins (which I think is very bad for my country) and I have to live with it and deal the best I can because the 'people have spoken'. But if the California people vote to define mariage as between one man / one woman - then potest, take to the courts and cause general disruption until you get your way - To hell with the 'people have spoken' garbage.

Feel free to protest all you like until the next vote comes around. That's the way the system works. We here in California had a ballot proposition fail for the third time (requiring parental notification before a teenager has an abortion) and I'm sure the proponents of that one will be back to try again.
11.14.2008 7:33pm
John Howard (eggandsperm.org) (mail) (www):
And everyone should remember that the May decision explicitly did not address the question of whether California had to offer same-sex couples the right to marry, but only whether a statutory scheme that created two identical institutions could have a different designation for same-sex couples. So it did not create or assert a right that Prop 8 took away. If anything, since the court said DP's had to be called marriages, Prop 8 took away DP's that are virtually identical to marriage, since those have to be called marriages, Constitutionally.

The only way out to define DP's so that they are not virtually identical and do not give the rights of marriage. They should be marriage minus conception rights.
11.14.2008 7:34pm
PubliusFL:
first history: "So opponents will argue that Prop. 8 will involve the state in affirmatively supporting discrimination (now that the right has been establlished by the state."

That would require invalidating Prop 8 on the basis of the U.S. Constitution (14th Amendment), which is risky because it invites appeals to federal court. And a whole bunch of states have laws that would be at risk in a federal case, and would intervene on the pro-Prop 8 side. The previous California gay marriage ruling was based on the state constitution, which had the advantage of making the California Supreme Court the ultimate authority. Not so if they turn to the 14th Amendment à la Reitman.
11.14.2008 7:39pm
first history:
John Howard:

Kent and First History, how can you two be so sure in your answer to Ron's question about another ballot question being another amendment as opposed to a revision?

If you're just asserting your opinion, I say you're wrong, because a second ballot question would clearly be changing, rather than adding to, the Constitution as it exists at the time. How could the old one and the new one co-exist together? There's that word "only" that would have to be stricken from the Constitution, which is clearly revising the Constitution.


They wouldn't exist at the same time. A second initiative allowing SSM would strke the language of Prop. 8 and replace it with new language. If you have ever seen a California ballot guide, initiatives frequently re-write and replace existing language. As with Prohobition (another instance of a constitution being used for a social experiment) the 18th Amendment still exists but the 21st Amendment rendered it null and void ("Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.") No doubt any future initiative repeal will be similar.

The use of the word "revision" in the context of the California Constitution is highly techinical. In this context, to "revise" the Constitution would be to reassign governmental functions, such as allowing the legislature to hear criminal appeals. That has to bo through a special process, and cannot be done by initiative. See Profs. Dale Carpenter's and Eugene Volokh's discussion of the distinction. The "revision" position is a long-shot arguement, and will (unfortunately) probably fail.
11.14.2008 7:40pm
first history:
PubliusFL:

I agree it's a risky arguement. A 14th Amendment challenge should wait until a few Obama appointments to SCOTUS. It would be interesting to see an appeal based on Lawerence v. Texas.
11.14.2008 7:43pm
MarkField (mail):

It would be interesting to see an appeal based on Lawerence v. Texas.


I think one based on Romer is more likely.
11.14.2008 7:48pm
John Howard (eggandsperm.org) (mail) (www):
The use of the word "revision" in the context of the California Constitution is highly techinical. ... See Profs. Dale Carpenter's and Eugene Volokh's discussion of the distinction.

So it is just opinion then, thanks. Here's the less technical, more correct interpretation: If you're striking something or changing something in the Constitution, you're revising it. If you're adding something to it that has never been in it before, you're adding to it.
11.14.2008 8:00pm
commontheme (mail):
Since the CA Supreme Court could have declined to hear the suit (which I understand was filed directly with them) without requesting a response from the AG, the only sure interpretation of this is that they are not not interested in hearing the matter.

Which double negatives aside, does not translate to them being interested in hearing the suit.
11.14.2008 8:17pm
Bob Van Burkleo (mail):
So it is just opinion then, thanks. Here's the less technical, more correct interpretation: If you're striking something or changing something in the Constitution, you're revising it. If you're adding something to it that has never been in it before, you're adding to it.

And since marriage equality was already in the Constitution (hence the original ruling) and they are striking it, its a revision.
11.14.2008 8:33pm
first history:
John Howard:

Here's the less technical, more correct interpretation: If you're striking something or changing something in the Constitution, you're revising it. If you're adding something to it that has never been in it before, you're adding to it

I don't know if it is "more correct," but not it's not correct according to the California Supreme Court. In Raven v. Deukmejian, 52 Cal. 3d 336 (1990), the court struck down an initiative that would bar the state courts from interpreting the state constitution in a more defendant-friendly way than the federal constitution is interpreted, as to a wide range of constitutional provisions. The court stressed that the proposal made "such far reaching changes in the nature of our basic governmental plan as to amount to a revision," because it "involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution," as opposed to only dealing with one specific right. "In effect, new article I, section 24, would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect."

"[I]n two earlier cases we rejected revision challenges to initiative measures which included somewhat similar restrictions on judicial power. . . . Both Lance W. and Frierson concluded that no constitutional revision was involved because the isolated provisions at issue therein achieved no far reaching, fundamental changes in our governmental plan. But neither case involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution...." (The foregoing is adapted from Prof. Volokh's post; the quotations are from the Raven opinion.)

As I have said before, the California Constitution is amended all the time (514 times since enactment (1879); 43 by initiatives; and averages 4 amendments per year.) Unless the opponents of Prop 8 can argue that taking away a fundamental right is the same thing as altering our "basic governmental plan," it will be tough road to hoe. I am not unspympathic to their position, but just trying to be realistic. Your interpretation of "amendment v. revision" won't be controlling, however.
11.14.2008 8:34pm
first history:
"but not it's not correct" should be "but it's not correct . . "

Should proof with my glasses on.
11.14.2008 8:36pm
John Howard (eggandsperm.org) (mail) (www):
And since marriage equality was already in the Constitution (hence the original ruling) and they are striking it, its a revision.

No, the original ruling did not find that California had to offer same-sex couples marriage or the rights of marriage, they explicitly say they are not addressing that. They are only addressing whether the legislature can establish a statutory scheme that results in two names for the same rights, one for both-sex and one for same-sex couples.
11.14.2008 8:37pm
Metoo:

We here in California had a ballot proposition fail for the third time (requiring parental notification before a teenager has an abortion) and I'm sure the proponents of that one will be back to try again.

Are they going to send envelopes with white powder to their opponets? Are they going to riot in the streets?
11.14.2008 8:40pm
first history:
John Howard:

It is an open question whether the "revision" section of the CA Constitution applies to individual rights (as opposed to governmental structure) in California. If you look at Prof. Volokh's post, he links to two non-CA SSM cases that look at the question and determined that the banning SSM is not a revision.
11.14.2008 8:47pm
jab:
metoo,

by your sad attempt at logic, the one lone abortion clinic bomber is representative of all abortion opponents... i don't think you want to go there
11.14.2008 9:30pm
Duncan Frissell (mail):
private racial discrimination contrary to the Fourteenth Amendment.

The Supremes have yet to declare queedom to be protected under the 14th. Thus those who live in states and subdivisions thereof that have not legislated queer antidiscrimination laws are free to discriminate.

Dale, as a good libertarian, believes that all antidiscrimination laws are major human rights violations that can (morally) be resisted (if one so chooses) by violence.

Personally, I reserve the right to discriminate against anyone on any basis I damm well choose and since such discrimination is not a crime (only a civil matter) by remaining judgement proof I can tell all you commies to shove it.
11.14.2008 9:30pm
NesterT (mail):
Right has been established by the State? Marriage equality in the Constitution?

What planet are you guys on? Need I remind you that just a few months ago (and before four tyrants in black robes decided to take away our right of self governance) the State did NOT ALLOW homosexual marriage. The right of homosexuals to marry, or to use Bob Van Burkleo’s language, “marriage equality” is nowhere found in the Constitution and neither is treating those who practice homosexual behavior as a suspect class (unlike race). Prop. 8 merely overruled a ridiculous 4-3 decision.

Restoring the status quo ante is NOT a revision.
11.14.2008 9:31pm
TNeloms:

Realist Liberal:

This type of lawsuit was filed before the vote. The Cal. Supreme Court followed its standard practice of deferring the lawsuit pending the vote. Now the deferment time has ended.



Thanks for the clarification, but I still don't fully understand why it happened this way.

Why is this the standard practice? It seems extremely wasteful. If they rule that it should have been a revision, then everyone just wasted a ton of resources on each side campaigning over an invalid ballot measure. (Or maybe the measure was valid, but it won't count as having passed because it didn't achieve a super-majority. But this seems unfair to the proponents, since it's conceivable that they would have campaigned harder if they knew they needed to get a larger share of votes, or that some voters would have acted differently.)

It seems much more natural and practical for the court to address the status and validity of a ballot *before* people spend resources campaigning over it and then voting on it.
11.14.2008 9:44pm
Dilan Esper (mail) (www):
We here in California had a ballot proposition fail for the third time (requiring parental notification before a teenager has an abortion) and I'm sure the proponents of that one will be back to try again.

By the way, this one irks me. I realize that some pro-lifers will just dismiss this as the ravings of a pro-choicer, but shouldn't there be some sort of a limit on this sort of thing? It's perfectly clear that Californians DON'T support parental notification laws. And it's obvious why-- we are a very pro-choice state and have been for 40 years (dating back to Ronald Reagan's governorship, when he signed the most pro-choice abortion law in America up to that point). So why do we have to keep seeing this on the ballot over and over and over again? At some point, if you lose enough times, you should have to get it passed by the legislature and put on the ballot as a referendum or something. Because there's no good reason why pro-choice Californians should have to vote, over and over again, on this intiative, just because pro-lifers are able to raise the signatures to put it on the ballot over and over again.
11.14.2008 9:44pm
MarkField (mail):
Dilan, though I'm not a fan of the initiative process, I'd hate to see that adopted as a rule. A critical feature of democracy is that laws are subject to change if the majority can be so persuaded. Lots of laws we now value -- anti-slavery and womens' right to vote to name two -- were introduced repeatedly, failed, and introduced again.
11.14.2008 9:55pm
Smokey:
How ya gonna do that, Dilan? Proponents will just couch their proposal in slightly different language, and claim it's not the same as the last proposal.

Best to just get rid of initiatives, or at least figure a way to keep signatures from being bought by any entity with deep pockets.

Initiatives have had their day, but people have figured out how to game the system. Time to demand that the Legislature does its job.
11.14.2008 10:11pm
MarkField (mail):
This is probably one of the signs of the Apocalypse -- I agree with Smokey.
11.14.2008 10:48pm
Greg Q (mail) (www):
David Schwartz:
The whole point of *having* a Constitution and of being a Republic rather than a pure Democracy is precisely that 51% of the people can't agree to take away the fundamental rights of the other 49%.

The whole point of having a Constitution is that it is a written document that binds everyone, including the Courts.

It's only a "fundamental right" in a Constitutional sense when We The People decide to place the right in the Constitution in the first place. When, exactly, was it that The People of California voted to make SSM a "fundamental right"?

They didn't? Then it's not one, and that Constitution that you pretend to care about forbids the Court to trample over the fundamental rights of The People, by arbitrarily reversing their decision.

Because unlike SSM, the right to have your vote matter really is a fundamental right.
11.14.2008 10:51pm
Cornellian (mail):
Best to just get rid of initiatives, or at least figure a way to keep signatures from being bought by any entity with deep pockets.

It's money, not public support, that gets an issue on the ballot in the first place. Without the money, it never gets to a vote, regardless of how popular or unpopular it may be. That being the case, it's perfectly logical to target the fundraisers.
11.14.2008 11:51pm
Tony Tutins (mail):
Although I respect the populist trinity of the Initiative, the Referendum, and the Recall, my mind boggles at the thought that in California, while a new tax proposal takes a 2/3 majority, the constitution can be amended by only 50% + 1. Is the amount of money the govt. can vacuum from one's wallet really more precious than one's civil rights?
11.15.2008 12:35am
Matthew K:
So, this is more a request for a post than a comment on the one provided:

Is there any reason to think that the California proposition system is anything but a really really bad idea? I would think that any libertarian and most breeds of conservatives and liberals would find the notion of amending a constitution with 50%+1 frightening. We all think there are SOME rights that deserve to be protected against the tyranny of the majority (of course there are substantial disagreements about what those rights are and the extent to which they should be protected, but still). Shouldn't we all hate this system on principle?
11.15.2008 12:41am
Greg Q (mail) (www):
Tony Tutins:

Is the amount of money the govt. can vacuum from one's wallet really more precious than one's civil rights?

Well, the number one right in a democracy is the right to have your vote count, even when 4 judges want something else.

I find 4 judges changing the Constitution at will much more "frightening" than 50% + 1 being able to slap those judges down.

The number two right is the right to private property. So yes, protect that is a lot more precious than protecting 4 judges "right" to rewrite the Constitution to suit thir personal desires.
11.15.2008 12:59am
Greg Q (mail) (www):
Matthew K,

You come up with a way to guarantee that no "Living Constitution" thug in black robes will rewrite the Constitution to suit his or her personal desires, and we'll talk.

Personally, what I think CA needs is a new Constitutional Amendment, that says something like this:

1: Any time a Constitutional Amendment is passed that is counter to a previous CA Supreme Court ruling, every member of the Court who voted for the previous ruling is immediately removed from the Supreme Court, and may never again be appointed to that Court, or any other State Court. This removal to take effect before the Court makes any rulings on the validity, legitimacy, or Constitutional nature of the Amendment.

2: No Court may block consideration by the voters of an Amendment that would overturn a previous CA Supreme Court ruling.

Given a choice between "voter tyranny" and "judicial tyranny", I'll happily trust the voters.
11.15.2008 1:08am
Bob Van Burkleo (mail):
They are only addressing whether the legislature can establish a statutory scheme that results in two names for the same rights, one for both-sex and one for same-sex couples.

And they decided they couldn't - so if the state is going to have 'marriage' its about marriage equality as all California citizens have a right to equal to exercise their right to marry.

By not contesting this and merely trying to put artificial barriers in the way of this equality they are most definitely trying to revise a basic tenet of the California constitution.
11.15.2008 1:23am
Perseus (mail):
We here in California had a ballot proposition fail for the third time (requiring parental notification before a teenager has an abortion) and I'm sure the proponents of that one will be back to try again.

Obvious question: Why don't the opponents of Prop. 8 follow their example?

Time to demand that the Legislature does its job.

These are the same folks who flagrantly tried to overturn Prop. 22 in direct violation of the state constitution (they have also tried to do an end run around other propositions like Prop. 13). None of our branches of government in California can be trusted to follow the constitution.
11.15.2008 2:09am
Dave N (mail):
Initiatives have had their day, but people have figured out how to game the system. Time to demand that the Legislature does its job.
You obviously do not know how disfunctional the California Legislature actually is.
11.15.2008 3:08am
gwinje:
Smokey:
Word. Maybe we should start collecting signatures to get a ballot initiative that says no more ballot initiatives.

MarkField:
It's hard, but when Smokey's right, he's right.

Greg Q:
Members of the majority who often voted for segregation and anti-miscegenation laws would agree with you. Oh yeah, and the opponents of gun ownership in DC. Those bastard judges. . .
11.15.2008 4:12am
Greg Q (mail) (www):
gwinje,

Is there something about being a leftie that make it impossible for you to read?

14th Amendment to teh US Constitution: Passed to ban unequal treatment under the law with respect to race. Second Amendment: Provides an individual right to keep and bear arms. Passed to keep the government from taking away people's guns, like the British did.

Now, what's the Amendment that mandates equal treatment based upon sexual orientation? When was it passed? Where is the Legislative history, and public discussion, about this momentous law?

There isn't any? It never happened? Then, gosh, I guess we now know the difference between an SC ruling against effectively banning all private firearms, and an SC ruling forcing a change in the definition of marriage, don't we.
11.15.2008 4:33am
Greg Q (mail) (www):
Bob Van Burkleo,

And they decided they couldn't - so if the state is going to have 'marriage' its about marriage equality as all California citizens have a right to equal to exercise their right to marry.

You got it. Like any other guy, you're free to marry a woman who will take you, and who meets other requirements.

You don't want to marry a woman? That's your choice.

But your likes and dislikes to not qualify you to rewrite the Constitution, or the definition of marriage.

From one of the dissents in the case
Nothing in our Constitution, express or implicit, compels the
majority’s startling conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.
The majority’s mode of analysis is particularly troubling. The majority relies heavily on the Legislature’s adoption of progressive civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage. In effect, the majority gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute. I cannot subscribe to the majority’s reasoning, or to its result.
As noted above, I do not dispute everything the majority says. At the outset, I join the majority’s observation that “[f]rom the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.”
Catch that part? “[F]rom the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.” So much for SSM being a "fundamental right".
11.15.2008 4:41am
Cornellian (mail):
Is there something about being a leftie that make it impossible for you to read?

14th Amendment to teh US Constitution: Passed to ban unequal treatment under the law with respect to race.


Speaking of ability to read, where did you find the word "race" in the text of the 14th Amendment?
11.15.2008 5:03am
Conrad Bibby (mail):

Although I respect the populist trinity of the Initiative, the Referendum, and the Recall, my mind boggles at the thought that in California, while a new tax proposal takes a 2/3 majority, the constitution can be amended by only 50% + 1. Is the amount of money the govt. can vacuum from one's wallet really more precious than one's civil rights?



What you're failing to recognize is that the legislature is about a million times more likely to try to raise your taxes than they are to try to take away your civil rights (free speech, the right to vote, the right to assembly, etc.), all of which, btw, are fully protected by the U.S. Constitution.
11.15.2008 9:50am
MarkField (mail):

You obviously do not know how disfunctional the California Legislature actually is.


I agree that it is, but lots of that has to do with the intiative process and how we CA voters have used it. As Dilan has pointed out, we can't continue to mandate funding (or, for that matter, restrict taxes) by constitutional amendment while expecting the Legislature to pass a budget by a 2/3 vote. Nor can we impose ridiculously short term limits on legislators and expect them to perform their jobs like experts. The enemy is us.
11.15.2008 10:48am
PubliusFL:
Bob Van Burkleo: "By not contesting this and merely trying to put artificial barriers in the way of this equality they are most definitely trying to revise a basic tenet of the California constitution."

I think most people will find it really hard to understand how something discovered only a few months ago can be considered a "basic tenet" of a constitution almost 130 years old.
11.15.2008 11:34am
Metoo:
Jab said:

by your sad attempt at logic, the one lone abortion clinic bomber is representative of all abortion opponents... i don't think you want to go there


Yes, but the intent of the 'fringe' on either issue is the same - to win through intimidation rather than through persuasion and discussion. And yet, like the abortion bomber, the white powder filled letters only serves to diminish the cause. In their action, these people have given ammunition to be used against their cause forever.

By the way, I also think starting your response with a childish insult shows you’re not above trying to win an argument through intimidation.
11.15.2008 11:44am
Cornellian (mail):
I think most people will find it really hard to understand how something discovered only a few months ago can be considered a "basic tenet" of a constitution almost 130 years old.


Probably the same way that the right to interracial marriage was "discovered" in Perez v Sharp in 1948 despite a ban on the practice as old as the state of California itself.

Interestingly, one of the other statutes discussed in Perez was a statute that prohibited non-whites from giving evidence in court in a lawsuit to which a white person was a party. That statute was just as old as the ban on interracial marriage. Anyone inclined to criticize the "activist" court for disregarding the will of the people on that one? Didn't think so.
11.15.2008 11:54am
Parenthetical:
first history:

Unless the opponents of Prop 8 can argue that taking away a fundamental right is the same thing as altering our "basic governmental plan," it will be tough road to hoe.

Like you, I'm skeptical that the opponents of Prop 8 will succeed in court (despite my sympathy for their underlying cause). But, I don't think they need to show that taking away a fundamental right is a revision. I seriously doubt that line of attack will work.

Rather, they need to persuade the court that Prop 8 obliterates equal-protection guarantees in the California consitution. From there, it's a relatively short stroll to revising the fundamentals of our governing plan.

The San Francisco brief frames the issue better than the first two petitions. The latest petition (Asian Pacific American Legal Center) also appeals to the same framework as S.F. does. (Petitions available from the court.)

In essence, they propose that Prop 8 turns equal protection on its head. How could a bare majority of the electorate be the final arbiter of what is essentially a counter-majoritarian guarantee? To the degree that equal-protection guarantees are fundamental to the basic government plan, this would substantially alter that plan (and strip the courts of an essential role in that plan).

Alternatively (and more likely), the court will regard Prop 8 not as an assault on equal protection. Rather, Prop 8 is an amendment because it merely establishes the contours of the fundamental right to marriage.

As was the case in Bowers and in Lawerence, how the court frames the question begs the answer.
11.15.2008 1:19pm
Matthew K:
Parenthetical:
I very much like your post. Sigh, how did CA end up with this amendment system? It is asking for this kind of conflict.
11.15.2008 1:35pm
Parenthetical:
Matthew K., thanks. I agree the system is dreadful.

As is so often the case, we ended up with this system because the prior system was abused (1911 populist reforms). At some point, perhaps, we'll get so fed up with the willy-nilly amendments to the constitution that we'll change the system again.

But, I wouldn't hold my breath.
11.15.2008 2:15pm
PubliusFL:
Cornellian: "Probably the same way that the right to interracial marriage was 'discovered' in Perez v Sharp in 1948 despite a ban on the practice as old as the state of California itself."

At least there is clear evidence that racial discrimination was THE key concern originally underlying the 14th Amendment (on which Perez v. Sharp was based). That makes it plausible that statutory racial discrimination violates a "basic tenet" of that constitutional provision. Any evidence at all that those who wrote or adopted the 14th Amendment or the California constitution had any concern for the rights of homosexuals in mind?
11.15.2008 2:17pm
nutbump (mail):

Cornellian (mail):

Probably the same way that the right to interracial marriage was "discovered" in Perez v Sharp in 1948 despite a ban on the practice as old as the state of California itself.


This is most common lie and misconception that is spreaded out by homosexuals.
Mixed race or one race couples are absolutely identical with regard to marriage, but heterosexual and homosexual couples are fundametally different.
So if two entities are different than same rules cannot be applied, i.e. full equality cannot be reached.
It is similar to attempt to reach equality with regard to pregnancy. Giving every man a right to be pregnant cannot make him pregnant.
11.15.2008 2:18pm
Elais:
Nutbump

You've proven heterosexuals are great at spreading lies and misconceptions.

I see zero difference legally between a man and woman marrying and a man/man marrying. THe arguement against same-sex marriage is no different than the arguements against interracial marriage.

I'm astounded when people claim there is a difference.

And a man can get pregant, just look up a fellow named Thomas Beatie.
11.15.2008 2:44pm
PubliusFL:
Elais: I see zero difference legally between a man and woman marrying and a man/man marrying. THe arguement against same-sex marriage is no different than the arguements against interracial marriage.

I'm astounded when people claim there is a difference.

And a man can get pregant, just look up a fellow named Thomas Beatie.


This reminds me of the old quote attributed to Abraham Lincoln about how many legs a dog has if you call its tail a leg. Answer: It still has four legs, because calling the tail a leg doesn't make it one. Not everyone is as glib as the pro-SSM crowd about redefining fundamental human institutions. You won't help your case by arguing that gay marriage is the same as gay marriage because women can be men and therefore men can be pregnant.
11.15.2008 3:04pm
Perseus (mail):
As Dilan has pointed out, we can't continue to mandate funding (or, for that matter, restrict taxes) by constitutional amendment while expecting the Legislature to pass a budget by a 2/3 vote. Nor can we impose ridiculously short term limits on legislators and expect them to perform their jobs like experts. The enemy is us.

So tyranny of the majority is fine when it comes to stealing people's money to fund the welfare state (though the "gridlock" wouldn't be that much different with a Republican governor given his line-item veto power). Eight years for a state senator is the same amount of time that a U.S. president has, so I don't think that term limits are a major factor. I agree, though, that the enemy is us.

I see zero difference legally between a man and woman marrying and a man/man marrying. The arguement against same-sex marriage is no different than the arguements against interracial marriage.
I'm astounded when people claim there is a difference.


And I'm astounded when people claim a similarity given the obvious biological differences as well as other public policy considerations, but just as Justice Scalia predicted, we are sliding down the judicial slippery slope to the logical conclusion of abstract equality.
11.15.2008 3:30pm
nutbump (mail):

Elais:
Nutbump

You've proven heterosexuals are great at spreading lies and misconceptions.

I see zero difference legally between a man and woman marrying and a man/man marrying. THe arguement against same-sex marriage is no different than the arguements against interracial marriage.

I'm astounded when people claim there is a difference.

And a man can get pregant, just look up a fellow named Thomas Beatie.

It could be that you astounded due to lack of information.
It is well know fact that married couples have a right to concieve, while other couples have no such right. In fact, state prohibit even some of the geterosexual couples to get married in case if couple have no legal right to concieve e.g. incestous couple.
So, you should not be astounded that homosexual couples cannot be qualified for marriage.

As far as Thomas Beatie, bilogically it is a woman not a man, so you argument is another attempt to mislead honest and hard-working people.
11.15.2008 4:16pm
MarkField (mail):

Eight years for a state senator is the same amount of time that a U.S. president has, so I don't think that term limits are a major factor.


I think there important differences between a legislator and an executive. Nevertheless, two points:

1. The limits for Assembly members are just 6 years. That's way too short.

2. Psychology research indicates that it takes about 10 years to become an expert in something. That research should inform how we think of term limits and what consequences we expect when they're less than that.


So tyranny of the majority is fine when it comes to stealing people's money to fund the welfare state (though the "gridlock" wouldn't be that much different with a Republican governor given his line-item veto power).


I'm not sure of your point here. I'm actually objecting to the fact that spending can be mandated by majority vote, while budgets and taxes require 2/3. That's fiscal insanity, because it ratchets up spending.
11.15.2008 4:52pm
eaglewingz08 (mail):
The revision issue is not going to fail. Four judges of the Cali Supreme Court foisted their will upon the unwilling people of California and more than a majority voted to end that judicial usurpation. The simplest action would be for the Cali Supreme Court to call it a revision no matter what Prop 8 actually is and then say the voters didn't turn out in high enough numbers to pass it. Cali then becomes gaystate central again and the Cali judges can go back to their cocktail parties in Hollywood and tell how they defeated those evil rethuglicans.
11.15.2008 6:24pm
Perseus (mail):
I think there important differences between a legislator and an executive.

True, but it's not obvious to me that legislators need much more time to gain the necessary experience to do their jobs.

Psychology research indicates that it takes about 10 years to become an expert in something. That research should inform how we think of term limits and what consequences we expect when they're less than that.

Even if true (and I have my doubts), why do politicians need to be full-fledged "experts"?

I'm actually objecting to the fact that spending can be mandated by majority vote, while budgets and taxes require 2/3. That's fiscal insanity, because it ratchets up spending.

The California government's spending problem is largely the result of the not-so mandatory spending that the legislature likes to dole out during the boom periods of the revenue cycle.
11.15.2008 6:44pm
Larry Fafarman (mail) (www):
Out the outset, I want to say that supporters of same-sex marriage should recognize that SSM just does not have the level of societal approval that is necessary to create stable and uniform SSM rights and should therefore just forget about SSM, at least for the time being, and push for civil unions instead.

Also, the willingness of judges to hear cases is directly proportional to the political clout of those requesting the hearing.

Saying that Prop. 8 violates the state constitution because the state constitution prohibits bans on same-sex marriage is Catch-22 circular reasoning. This reasoning says that the California constitution cannot be amended to ban SSM because the California constitution prohibits bans on SSM.

What would violate the federal constitution would be an amendment prohibiting propositions that would legalize gay marriage, but that is not what we have here.

Not being a lawyer, I may not have this right, but doesn't the refusal to hear the case prior to the vote make it impossible for them to do so afterwards?

I think it would depend on whether the dismissal is with prejudice or without prejudice.

Also, saying "I am not a lawyer" is a no-no.

Isn't there some way to recall a Cal. Sup. Ct. justice before his or her term expires? Or am I misremembering this?

California judges don't have tenure and can be voted out of office. Rose Bird, the chief judge of the Calif. supreme court, was voted out of office along with two other Calif. supreme court judges.

FWIW: What changed is that there is now a live controversy. Before, their opinion would have been purely advisory.

Federal courts have interpreted the "cases" and "controversies" provision of US Const. Art. III as barring federal courts from issuing advisory opinions (though I don't know why -- even a moot or hypothetical question can be a "controversy"). However, state courts are not necessarily barred from issuing advisory opinions -- I don't know what rules apply in California.

If you're striking something or changing something in the Constitution, you're revising it. If you're adding something to it that has never been in it before, you're adding to it.

And since marriage equality was already in the Constitution (hence the original ruling) and they are striking it, its a revision.

Marriage equality is not explicitly in the state constitution, and the current lawsuit against Prop. 8 does not even identify what language in the Calif. Constitution was implicitly repealed or modified by Prop. 8.
11.15.2008 6:57pm
esteban J (mail):
Two things strike me as rather faricical:

1) that the court has "asked for AG Brown's opinion" about the merits of the anti prop-8 lawsuits, when AG Brown is obviously hostile to prop 8 (as evidenced by his claim that prop 8 would not overturn SSM's that formed during the past 6 months, and his brazen re-wording of the prop 8 ballot measure) and thus can't be relied on to vigorously and zealously defend it, and ...

2) the court's obvious intent to overturn prop 8 on the grounds that gay marriage is so-exalted a right that only a revision can erase it - despite the fact that this "fundaemnental, exalted right" never existed in the entire history of the state until the very same court declared it to be just 6 months ago.

Doesn't the California constitution have a clause against self-dealing? Wouldn't we all be appalled if, in any other aspect of our lives, the institution empowered to rule on our appeal was the same institution that punished us in the first place?
11.15.2008 7:06pm
Brian G (mail) (www):
I hope the Court overturns the vote. After all, I don't think we should have any say in the laws that we live under. Instead, the wise men and women of the highest court in California should be dictating to us what laws we should and should not be living under.

Seriously, the argument that the Constitution was unconstitutionally "revised" rather than amended is hilarious. Since it fits the liberal left agenda, it is of course a nuanced complex legal issue that us little people just cannot understand.
11.15.2008 7:07pm
MarkField (mail):

Even if true (and I have my doubts), why do politicians need to be full-fledged "experts"?


Because we want them, like anyone else, to do their job well.


The California government's spending problem is largely the result of the not-so mandatory spending that the legislature likes to dole out during the boom periods of the revenue cycle.


There's some truth to that, but without quibbling about the details, I don't see how it affects our discussion. All I'm saying is that the initiative process shouldn't be allowed to contribute to that problem.
11.15.2008 8:06pm
Perseus (mail):
Because we want them, like anyone else, to do their job well.

I don't see members of the assembly doing their jobs any significantly worse than when they were not restricted by term limits (and as you are surely aware, state senators are usually former members of the assembly). All it means is that politicians like Willie Brown cannot maintain their corrupt reign indefinitely (though I think that gerrymandering is a bigger problem).
11.15.2008 8:49pm
Bob Van Burkleo (mail):
This reasoning says that the California constitution cannot be amended to ban SSM because the California constitution prohibits bans on SSM.

Reasonable - first you'd have to change the constitution to allow some citizens to have special rights that are proscribed to others. You know, like only giving Republicans freedom of speech. Once you no longer have to treat citizens equally then you can add things to constitution that says the state has to pretend that some of its citizens aren't married regardless of reality.
11.15.2008 9:23pm
jgshapiro (mail):
Dilan:

Because there's no good reason why pro-choice Californians should have to vote, over and over again, on this intiative, just because pro-lifers are able to raise the signatures to put it on the ballot over and over againn.

There are several good reasons.

One, is that the parental notification propositions have not been exactly the same. The proponents of notification keep adding exceptions, which is probably why they picked up more votes (in a very blue year, no less). The latest attempt failed, but barely. The margin was 48%-52%. The last attempt failed 45-55 and the one before that 47-53. None of these have been blowouts. If they had lost 40-60 or worse, they might have dropped the matter, but instead they have tried to address specific objections by tweaking it a little each time.

Two, is that the state population is not the same every two years. In a two year period, lots of people come to CA and lots of people leave. They don't necessarily come and go in proportion to their opinions on parental notification.

Three, is that people tend to change their minds over time. Prop 22, the proposition that banned SSM by statute in 2000 (that was overturned by the CA Supreme Court this summer) passed by a margin of 61%-39%. Eight years later, Prop 8 passed by a margin of 52-48. The language of Prop 8 and 22 was exactly the same. Read into that what you will, but I would suggest that a big part of the difference is not just that SSM was the status quo in 2008 and that a 'no' vote was a pro-SSM vote, but also that a lot of people opposed to SSM in 2000 had changed their minds by 2008.

Incidentally, by your logic, pro-SSM voters should not be able to get a proposition to repeal Prop 8 on the ballot until exactly when? I mean, the voters just passed Prop 8 two weeks ago, so why should anti-SSM voters have to vote on this again in 2 years?
11.15.2008 10:52pm
first history:
Esteban J sez:

. . . AG Brown is obviously hostile to prop 8 (as evidenced by his claim that prop 8 would not overturn SSM's that formed during the past 6 months, and his brazen re-wording of the prop 8 ballot measure) and thus can't be relied on to vigorously and zealously defend it . .

Just to set the record straight, Brown did not "reword" Proposition 8, he re-worded the ballot tile and summary, not the amendment itself. From the Sacramento Bee:


On the petitions circulated last year to qualify the measure for the Nov. 4 ballot, it was described as a "Limit on Marriage."

But Brown's new title and summary of Proposition 8, posted on the Secretary of State's Web site on July 22, states the proposed constitutional amendment "Eliminates right of same-sex couples to marry."

The summary still says Proposition 8 provides that "only marriage between a man a woman is valid or recognized in California."
. . .
Gareth Lacy, a spokesman for the attorney general, said the title was reworded because of a state Supreme Court ruling in May that overturned a ban on gay marriages in California.

"We had a very significant Supreme Court decision, and the title and summary accurately reflect the measure," Lacy said.

He said the attorney general's office regularly changes "title and summaries to make them as accurate as possible at the time of the election."

Opponents said that although changes to ballot measures are subject to legal challenge, the attorney general's rewording accurately describes what the measure would do.


Granted, the ballot summary is just about as far as most voters get to when reading an initiative, but that's their problem, and Brown's description accurately describes the the impact of the constitutional amendment. Also, the State defended Proposition 22 (the initiative statute that was overturned); and I see no problem in the State's ability to defend Prop. 8--lawyers routinely make arguments in court they may not personally agree with.
11.15.2008 11:11pm
Dave Hardy (mail) (www):
At least here in AZ, courts are pretty good about deciding challenges to initiatives and referenda before the election. Might as well decide whether something goes on the ballot, before the ballot. Doing so afterward risks being seen as praying that something gets voted down, then if it doesn't, overriding the will of the people.
11.15.2008 11:26pm
first history:
Persus sez:

I'm astounded when people claim a similarity (to interracial marriage) given the obvious biological differences as well as other public policy considerations.

Outside of the procreation arguments, what interest does the State have when two unreleated persons marry? California didn't (and couldn't) make those arguments in March 2008, since the State's domestic partnership law allows gays to adopt children and many couples make arrangements to have biologically related children. Prof. Dale Carpenter wrote at the time of the arguments:


The state cannot and does not justify the exclusion of gay couples from marriage based on things like promoting procreation and the best interests of children. As a matter of state public policy, it has already surrendered much substantive ground about the differences between gay and straight couples. (My emphasis) The state's counsel was left to argue that withholding the title of "marriage" is justified by the state's unadorned desire to "preserve the common and traditional definition of marriage."

. . . Even the justices that seemed sympathetic to the state were skeptical about child-raising rationales, primarily because the public policy of the state is to make no distinction between same-sex and opposite-sex couples in child-rearing. Neither promoting procreation, nor its cousin, promoting responsible procreation, played a significant role. Procreation wasn't even mentioned until more than three hours had passed.

A mosdest proposal: If procreation is the State's interest in preserving traditional marriage, what about couples that are childless by choice or circumstance? My feeling is that a constitutional amendment should be enacted to require couples to bear at least two children (to replace themselves) within five years or face dissolution of their marriage.
11.15.2008 11:35pm
Dan M.:
I don't understand these legal challenges. Is the fight for gay marriage not ultimately a fight for social acceptance rather than a fight for anything resembling a civil right? And when 52% of the California population votes against you, and not even knowing if the other 48% really support you, isn't it then established that gay marriage ultimately isn't socially acceptable to the majority of the population? Would gay rights activists similarly go to bat for the rights of other taboo couples, like the right of cousins to marry each other, or for adults to marry their step-parents? I'm sure many of the more libertarian-minded ones would, but many others would not. When Rick Santorum suggested that the right to gay sex implied the right to incest, according to Slate 'David Smith, the communications director of the Human Rights Campaign, the nation's leading gay rights organization, accused Santorum of "disparaging an entire group of Americans." "He's advocating that a certain segment of American society be disavowed from constitutional protection," Smith charged. "The outrageous thing … is he put being gay on the same legal and moral plane as a person who commits incest. That is repugnant in our view and not right."' So is it rights for me but not for thee?
11.15.2008 11:36pm
MarkField (mail):

All it means is that politicians like Willie Brown cannot maintain their corrupt reign indefinitely (though I think that gerrymandering is a bigger problem).


I'm in favor of term limits, I just think they need to be reasonable in length. Something on the order of 10-18 years seems right.

I agree about the gerrymandering.


Would gay rights activists similarly go to bat for the rights of other taboo couples, like the right of cousins to marry each other, or for adults to marry their step-parents?


The only people who seem to be concerned about the right to commit incest are those who oppose SSM; at least they're the ones who are always raising it. Perhaps your resources would be better spent on such a campaign rather than on depriving your fellow citizens of human happiness.
11.15.2008 11:51pm
Greg Q (mail) (www):
Cornellian:

Speaking of ability to read, where did you find the word "race" in the text of the 14th Amendment?

I don't. I find it in the legislative history and public discussion of the Amendment. Which would be why I mentioned those things in my post.

As I was saying, does being of the left just destroy reading ability?
11.16.2008 1:28am
Greg Q (mail) (www):
Cornellian (mail):
I think most people will find it really hard to understand how something discovered only a few months ago can be considered a "basic tenet" of a constitution almost 130 years old.

Probably the same way that the right to interracial marriage was "discovered" in Perez v Sharp in 1948 despite a ban on the practice as old as the state of California itself.


Gee, Cornellian, do you think that fact that interracial marriage has been around as long as marriage has might have had some effect on that ruling?

Can you perceive the difference between that and SSM, a form of "marriage" who sole legal status in history has been as something banned?
11.16.2008 1:35am
Perseus (mail):
Outside of the procreation arguments, what interest does the State have when two unrelated persons marry?

A lot less.

A modest proposal: If procreation is the State's interest in preserving traditional marriage, what about couples that are childless by choice or circumstance? My feeling is that a constitutional amendment should be enacted to require couples to bear at least two children (to replace themselves) within five years or face dissolution of their marriage.

As I've stated several times already, I have no principled objection to exactly the sort of restriction that you propose.
11.16.2008 2:34am
Greg Q (mail) (www):
Bob Van Burkleo (mail):

first you'd have to change the constitution to allow some citizens to have special rights that are proscribed to others. You know, like only giving Republicans freedom of speech.

Gosh, bob, you actually understand what equal protection of the law (EPUTL) means, but still serve up dishonest BS about it.

You're absolutely right, a law that says "only gays are allowed freedom of speech" would be a violation of EPUTL. A law that says "only rich people are allowed freedom of speech" would be a violation of EPUTL.

But, a law that says that everyone is allowed to buy ad time during political campaigns "unfairly advantages" "the rich", since they're more likely to be able to afford to buy ad time on TV. Nevertheless, such a law is not a violation of EPUTL. Everyone has the same right (buy time on TV for political ads), even if only some of the people can actually exercise it.

Now, let's consider marriage and Prop 8. What does Prop 8 say? Only marriage between a man and a woman is valid or recognized in California.

Now, does it say "only heterosexuals can get married in California"? No. Does it say "homosexuals cannot get married in California"? No. It simply defines what a real marriage looks like.

It's no more of a violation of equal protection than is a law that makes you pay for your own political ads (instead of getting the government to finance them). Claims otherwise just show your own dishonesty.
11.16.2008 2:43am
jgshapiro (mail):

Now, let's consider marriage and Prop 8 anti-misegenation laws in VA pre-Loving.

What does Prop 8 the VA law say? Only marriage between a man and a woman members of the same race is valid or recognized in California Virginia.

Now, does it say "only heterosexuals whites can get married in Virginia"? No. Does it say "homosexuals Negroes cannot get married in Virginia"? No. It simply defines what a real marriage looks like.

Fixed it for you.

Unfortunately for you, this position did not get much traction on appeal because most people recognized that while the VA law was facially neutral, it was obviously discriminatory on the basis of race as your race would be determinative of whether you could marry the person you want to marry.

Likewise, while the law post-Prop 8 is facially neutral, it is obviously discriminatory because your sex is determinative of whether you can marry the person you want to marry.

Playing the definitional game of saying "that's not marriage" works just as well for anti-miscegenation laws as it does for Prop 8.
11.16.2008 8:20am
Cornellian (mail):
I think most people will find it really hard to understand how something discovered only a few months ago can be considered a "basic tenet" of a constitution almost 130 years old.

Probably the same way that the right to interracial marriage was "discovered" in Perez v Sharp in 1948 despite a ban on the practice as old as the state of California itself.

Gee, Cornellian, do you think that fact that interracial marriage has been around as long as marriage has might have had some effect on that ruling?


Ah, so we don't actually have to read the constitution to find fundamental rights. Regular old rights become "fundamental" once they've been around for a while, whether or not mentioned in the constitution. Somehow the drafters of the California constitution thought they were invalidating a law as old as the constitution itself. Guess we'll have to call it a Living Constitution.

Since SSM is legal in Massachusetts, Canada and various European countries, how long would you say before it becomes a "fundamental" right too?

Speaking of ability to read, where did you find the word "race" in the text of the 14th Amendment?

I don't. I find it in the legislative history and public discussion of the Amendment.


Care to quote some basis for concluding the 14th Amendment protects only racial classifications, despite saying nothing of the sort? And by the way, the fact that racial issues might have prompted enactment of the 14th Amendment isn't the same thing as saying that the meaning of the text was understood to be restricted to race. Of course if you want to go down that road, you might also explain why you don't take the old Robert Bork position that the 14th Amendment protects only blacks, not whites, asians or hispanics.
11.16.2008 10:53am
John Howard (eggandsperm.org) (mail) (www):
A modest proposal: If procreation is the State's interest in preserving traditional marriage, what about couples that are childless by choice or circumstance? My feeling is that a constitutional amendment should be enacted to require couples to bear at least two children (to replace themselves) within five years or face dissolution of their marriage.

Marriages aren't required to have children, just like having the right to marry and procreate doesn't mean you have to, morons. Not all can, and not all want to. Marriage just means the state can't prohibit the couple from trying to procreate with their own genes.

And like incest, same-sex procreation should be prohibited, by federal law asap. We shouldn't allow genetic engineering of people.

MarkField, if you are demanding the right to attempt to procreate with someone of the same sex, and you know it, you should be more upfront and honest about it. You shouldn't be deflecting valid points and obfuscating your real priority.
11.16.2008 2:06pm
Pirmin:
Greg Q., you totally crack me up...better than watching SNL.
11.16.2008 3:02pm
Dan M.:
MarkField, you are merely proving my point. You don't want to discuss the issue because you obviously don't believe that it is a fundamental right for any two people to marry. I have absolutely no interest in preventing anyone from marrying, but I do find "It's a fundamental right!!!" arguments to be curious coming from people who would still exclude others.
11.16.2008 3:54pm