Friday, November 21, 2008

More on Prop 8

So in doing my research on Prop 8 and the ensuing legal challenges, here's what I've come up with.

1. The court is not going to rule to overturn the will of the people. The court can't do that. California amended its constitution with Prop 8 and it is that constitution the Supreme Court is charged with upholding.

2. The court may rule that Prop 8 was not properly added to the ballot and in so finding, invalidate the amendment. But why would the courts do this?

2a. The California Constitution establishes two 'levels' of change a ballot initiative can enact. The first, an amendment, is a relatively minor change to the constitution and can be put on the ballot by petition. The second, a revision, is a major change which alters not the text but the fundamentals of the constitution.

2b. Discrimination against 'suspect classes' (that is to say, a classification of people where using that classification as the sole judgment is suspect) is forbidden by the California Constitution.

2f. In the past, when the California Constitution has been amended to remove rights, those rights have been removed from all people. For example, when the courts had held that Calfornian's freedom from 'cruel or unusual punishment' and that execution was cruel or unusual, the Constitution was amended to remove that protection from all Californians.

2c. Gay people constitute a suspect class.

2d. Prior to the enacting of Prop 8, gay people had the right to marry.

2e. Following the passage of Prop 8, a suspect class is explicitly forbidden a right it once had, while the remainder of the population retains that right.

2g. Amending the constitution to remove rights of a protected class is thus unprecedented and represents a material change to the fundamentals of the California Constitution.

2h. As a result, what was placed on the ballot as an amendment is actually a revision and is not eligible for entry on a ballot by petition; it must be placed on ballot by a 2/3 supermajority of both houses of the California Assembly.

3. I like this argumentation very much. The Mormons will bitch and moan about how the courts are undoing the will of the people. But if the court rules in favor of what I outlined in 2, then the people en masse don't have a say in this until the Assembly acts on it. And we've just spent millions and millions of dollars on something that never should've been on the ballot in the first place.

4. Yes, this is very similar to a challenge against Prop 8 before the election, which was declined by the Court. However, in the interest of acting conservatively, the Court chose not to hear the case; if Prop 8 failed, they could get away without having to make a decision and it would have the same policy effect as if they'd heard the case and turned Prop 8 down from the ballot. Now, they evidently believe they do need to make a decision on the case, because whether they do or do not find the placement of Prop 8 on the ballot was appropriate has a net effect regardless of what they decide.

5. It looks like the petition drive to get a repeal measure for Prop 8 is in the works, and even if the Court finds against the folks filing this suit, we'll revisit this battle in two years' time.

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