Prop 8 will be invalidated by the Supreme Court of California.

[Guaranteed]

There are a number of solid legal arguments that can and will be made against it, although whether the ruling is based on California's Constitution or the US Constitution remains to be seen.

Most of the arguments are one form or another of an equal protection violation and based on the state's own Constitution and/or the federal Constitution. In that same regard, Roemer, a 1996 USSC decision regarding Colorado voters changing their constitution to prevent gays from being protected by statute, is on three legs with this case, if not all four, and gives a strong base to work from.

But there is also another argument that goes much deeper to the heart of the flaw in the idea that a simple majority vote can change the California Constitution- that of procedural due process. The California court could base its decision on that guarantee under the federal Constitution, which I believe it should, and circumvent the circular "how can the California Constitution be unconstitutional to itself" argument.

However, such a decision would have a massive effect. It would pretty much change California's entire initiative process, which, honestly, really needs to be done anyway.


In any case, I'm sure the Supreme Court of California sees well the injustice this proposition has wrought and I'm confident that they will remedy it for any one of many important reasons.

[BuyingThyme]

1. I think you're right.

[DarthDem]

2. Great Analysis.

Thanks. I'm a California-admitted lawyer and I completely agree with you, although the basic tenets under which this will be invalidated will be federal in nature, because of the jurisprudence that has built up around the U.S. Constitution, and because the state constitutions mostly track its language and interpretive development.

I don't think Prop H8 will survive long.

[indie_voter]

5. What are your thoughts on the LDS and their tax exempt status? Could this be investigated? thx n/t

[DarthDem]

7. I Didn't Hear That Angle

Sorry, I'm in the middle of an endless conference call and can't Yahoo search effectively - - can you link me? :-)

[indie_voter]

8. sure. links to an news article and the facebook petition (not a legal argument of course)

http://www.abc4.com/news/local/story.aspx?content_id=97b66a40-0f35-4f4c-b843-32138998993a

http://www.facebook.com/group.php?gid=93842195095

[DarthDem]

40. Thanks - - Interesting

I agree with the poster right below; Section 501(c)(3) of the Internal Revenue Code permits churches to claim tax-exempt status unless lobbying is a "substantial part" of their activities. I think it would be very, very hard to prove that the LDS Church's participation in and funding of a ballot initiative was a substantial part of their activities - - you can imagine all of the counterarguments they would make concerning their activities around the country, their overall budget versus what they spent on Prop H8, etc.

It's an interesting avenue, but I doubt the IRS will pursue it.

[Critters2]

34. Tax exemption means they can't endorse a candidate or party,

but can take stands on referenda and social policy issues. Their 501(c)3 is safe.

[indie_voter]

37. I hope this is investigated, it's not the endorsements, it's the funding

I'm sure they were careful and funneled most of it through individuals. But unless they're investigated, any potential slip up will go undiscovered.

[Critters2]

44. If the funding went to other 501c3s, there isn't a problem.

I'm sure their lawyers were careful about this.

[stopbush]

3. Right on. If it isn't invalidated, then we have REAL problems here in CA.

[LiberalAndProud]

4. Kick,

The courts must make this right. It is our only hope. Every time a gay marriage prohibition hits the ballots in our country, it is passed. The courts have the burden of protecting the rights of the minority against tyranny of the majority. I pin my hope there.

[proud patriot]

6. k and r

[Maat]

9. Everyone - take a look at what Lambda Legal has up ...

they filed along with the ACLU.

And, we should all contribute to the effort!

Quote (from Lambda: http://www.lambdalegal.org/publications/articles/proposition-8-challenged.html):

Lambda Legal, The American Civil Liberties Union (ACLU) and the National Center for Lesbian Rights (NCLR) have urged the California Supreme Court to invalidate Proposition 8 if it passes. The groups argue that Prop. 8 is invalid because it was improperly attempts to undo the constitution's core commitment to equality and deprives the courts of their essential role of protecting the rights of minorities. According to the California Constitution, such a radical change in the way the courts and state government work cannot be decided by a simple ballot measure. The legal groups filed the writ petition on behalf of Equality California and six same-sex couples.

The California Constitution makes clear that a major change in the roles played by the different branches of government cannot be made by a simple majority vote through the initiative process, but at the very least must first go through the state legislature. Changes to the underlying principles of the constitution must be approved by two-thirds of both houses of the legislature before going to voters. That didn't happen with Proposition 8, and that's why it's invalid.

The groups filed a writ petition in the California Supreme Court before the elections, arguing that the initiative should not have appeared on the ballot. The court dismissed that petition without addressing its merits.

This would not be the first time the court has struck down an improper voter initiative ...

[depakid]

42. There's an interesting set of arguments in the P &A's

Essentially they contend that under Article XVIII, the California Constitution can be amended by direct initiative, but cannot not revised with respect to a central purpose- in this case, equal protection and the role of the judiciary in protecting minorites from majoritarian abuse.

I like that set of arguments and find them persuasive. Hopefully, the courts will too.

The chances of getting a legislative referral on the issue are pretty slim, and based on the way the state's districts are gerrymandered, there aren't many representatives who are likely to feel electoral pressure from the culture war crowd.

[fizzgig]

10. the romer decision was the first thing that popped to mind

good precedent

[HughMoran]

11. I sure hope this is invalidated, one way or the other

It is especially important that California, practically a country unto itself, lead the way in the effort as the result there will set precedent for future law suits in other states.

[nichomachus]

12. I think you oversimplify the ballot initiative issue

Voters can add things to the constitution, but they cannot change the fundamental structure or principles of the constitution. And this is the legal argument -- that chaning the basic structure of the constitution has to be done in a different manner.

It would be similar if someone got a proposition passed to deny women the vote. It would be declared unconstitutional both in the state court and at the federal level.

[Guaranteed]

13. That's the hair-splitting I'm hearing in some of these arguments that

I don't agree with.

What do you mean by "change the fundamental structure or principles" of the constitution? How would that be evaluated?

Isn't "changing the fundamental structure or principles" of the constitution- or the law, rather- the point of any change to it? I.E., don't we change the constitution only in order to fundamentally change the law?


Further, it seems, at least in my mind, that any portion of the constitution that can be so easily changed is, almost by definition, not part of the Constitution, merely a statute. That's what separates a constitution from a statute- the ease by which it can be changed. Constitutions are supposed to set out procedures and fundamental substantive law to act as a bendable backbone for a larger system of law. The nature of the guidance a constitution gives us, if we are to have any faith in it, is not subject to such thoughtless amendment.

In other words- it's either part of the Constitution or it isn't, and if it is, you can't change it so easily as these folks are trying to. If you can change it so easily, you're not talking "constitution" anymore.

[meow2u3]

14. Last time I checked, the courts can't overturn a constitutional amendment

For the court to do so would amount to judicial usurpation of the Constitution, be it on a state or Federal level.

Bush's Supreme Court flouted the Constitution of the United States, so for the CASC to do likewise would lower them to the level of the Rogues in Robes of Washington.

[Guaranteed]

15. They most certainly can under the federal Constitution.

And your argument with regard to the California Constitution is circular and shaky at best.

[fizzgig]

16. yes they can

it happened in 1996 when the scotus overturned colorado's amendment 2, which denied gays protection from discrimination

http://en.wikipedia.org/wiki/Romer_v._Evans

[robertpaulsen]

22. Not only can a proposition be overturned in California, there is a precedent.

California: Proposition 187 Unconstitutional

In Los Angeles on November 14, 1997, US District Court Judge Mariana R. Pfaelzer in Los Angeles ruled that Proposition 187 violates both the US Constitution and the 1996 welfare law, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Under the ruling, the PRWORA requires states to follow the federal guidelines established in PRWORA when they seek to regulate the access of unauthorized foreigners to welfare benefits.

The ruling declared that "California is powerless to enact its own legislative scheme to regulate immigration. It is likewise powerless to enact its own legislative scheme to regulate alien access to public benefits. It can do what permits, and nothing more." Pfaelzer is expected to convert the temporary injunction preventing enforcement of Proposition 187 into a permanent injunction by the end of 1997.

In its effects on illegal immigrants, the major difference between Proposition 187 and the PRWORA is that Proposition 187 would explicitly deny tuition-free K-12 education to children in the US without authorization, while the PRWORA does not. Proposition 187 would also require state and local health care workers, educators and police to inform the INS of suspected illegal immigrants; PRWORA does not.

In 1994, California voters approved Proposition 187 by a 59 to 41 percent vote. Judge Pfaelzer issued a partial ruling in 1995, declaring the part of Proposition 187 that would prevent illegal alien children from attending K-12 schools unconstitutional, and preventing the state from implementing most other sections of Proposition 187 as well. At the time, Governor Wilson criticized Judge Pfaelzer, saying that "Congress needs to examine the abuse of discretion by a federal judge simply fails to act."

http://migration.ucdavis.edu/mn/more.php?id=1391_0_2_0



Most Of California's Prop. 187 Ruled Unconstitutional

LOS ANGELES (AllPolitics, March 19) -- A U.S. District Court judge has declared most of California's Proposition 187 unconstitutional.

Approved by voters in 1994, the proposition would have denied health care, education and welfare benefits to illegal immigrants. Almost immediately, Judge Mariana Pfaelzer granted its opponents' request for a restraining order, which prevented it from taking effect.

In her final ruling, Pfaelzer rejected California's attempt to regulate immigration, which she said is the federal government's responsibility.

Judge Pfaelzer's ruling strikes down portions of the initiative that would have required law enforcement, teachers, social service and health care workers to verify a person's immigration status. Under Proposition 187, they would have had to report illegals to authorities and to deny them social service, health care and education benefits.

http://www.cnn.com/ALLPOLITICS/1998/03/19/prop.187/



I'm not sure if this can only be done by a US District Court judge or by CASC, but propositions can be overturned if deemed unconstitutional. As far as propostions attempting to amend the state constitution are concerned, I found this illuminating:

The proposed initiative appears to now attempt to revise the California Constitution to remove the fundamental right to marry and equal protection that gays and lesbians are now afforded under the California Constitution.With that in mind, the Secretary of State must be aware of the following case:

Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313:

Article XVIII of the California Constitution allows for amendment of the Constitution by the Legislature, or initiative and revision of the Constitution by the Legislature, or a constitutional convention. There is no other method for revising or amending the Constitution. (Livermore v. Waite (1894) 102 Cal. 113, 117, 36 P. 424 (Livermore).)

“ ‘mendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” (Livermore, supra, 102 Cal. at pp. 118-119, 36 P. 424.) The “revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision.” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 350, 276 Cal.Rptr. 326, 801 P.2d 1077 (Raven).) “n enactment which is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 223, 149 Cal.Rptr. 239, 583 P.2d 1281 (Amador).)

According to the In Re Marriage Cases (May 15, 2008) 2008 WL 2051892: “Although our state Constitution does not contain any explicit reference to a “right to marry,” past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution.... In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation. “

The proposed initiative originally sought to limit the Constitutional right to marry to opposite sex couples and, thus as originally drafted, it was intended to limit the right to marry to a man and a woman. But an amendment can no longer accomplish this. The Right to Marry exists and in light of the recent ruling, the initiative’s unintended consequence is an attempt to revise (as opposed to amend) the Constitution which, as explained in In Re Marriage Cases (May 15, 2008) 2008 WL 2051892, is a fundamental Constructional right to “all individuals and couples, without regard to their sexual orientation.”

http://www.metnews.com/articles/2008/inmyopinion052108.htm

[Johonny]

17. I agree

The prop system is horrible.

[DearAbby]

18. If the Supreme Court overturns this amendment

based on the Constitution. It will pretty much make Gay Marriage legal everywhere. This could have unintended outcome, something the Fundies didnt see.

[Guaranteed]

19. It would set a strong precedent for other state Supreme Courts as

well as for any litigation in the SCOTUS but it wouldn't bind anyone outside of our state until someone took up the Full Faith and Credit Clause of the federal Constitution, which could have been done with the initial ruling anyway. I think folks are waiting on that one, for culture to evolve another decade or two.

[Gregorian]

20. Recommending. Thank you for presenting this discussion.

I've got a lot to learn about law. And I'm learning quite a bit right here. I hope.

There is no doubt that life, liberty, and the pursuit of happiness pertain to this in a fundamental way.

[Guaranteed]

21. Thanks for coming in!

I like talking about this "stuff."

[tosh]

23. K&R - with optimism for my friends.

[Pithlet]

24. I think the strongest argument is that it should never have been on the ballot to begin with.

It was a revision, which should never have been decided by a simple majority vote and therefore cannot stand, and I think that's the argument being made in the challenge if I'm not mistaken. I really hope the CSC overturns it and of course I think there's a very good case for it. Any way they can manage it, I'm behind them all the way. And if it overhauls CA's ballot initiative in the process, all the better.

[Guaranteed]

25. There are multiple challenges and that is at least one of the arguments made by the parties.

I understand that argument and can see its soundness by the precedent above, but the problem is that arguing the case so technically ignores the conceptual injustice of what Prop 8 did. I think it's better to argue more along the lines of what makes a constitutional democracy a constitutional democracy. It just seems more convincing to me than trying to distinguish an "amendment" from a "revision."

[Pithlet]

29. I'm not a lawyer. That's just what I'm getting from all the articles I'm reading.

The general consensus seems to be that that is the best shot they've got. What you're saying makes sense, however, I have this nagging feeling that the CSC won't overturn an amendment to their constitution, however nonsensical or unjust it is. I hope I'm wrong, of course. But I think that's why that's the course being taken. Failing that, it will probably have to go to the USSC. From what I understand there was a fight to keep it from going on the ballot to begin with, the argument being it was a a revision, and the CSC rejected it without comment.

[Guaranteed]

30. Right- it's such a technical argument it doesn't "hit home."

Oddly, I think when the court does invalidate this (and I think it will), they might very well use that same argument, though. It's easier to get rid of the case with, and more paper-based rationale, and I think that's probably why the challengers are using it.

[depakid]

26. That California's and Oregon's Constitutions lack doctrinal integrity

i.e. that they can, like a statute, be changed by a majority vote (as opposed to a supermajority of some sort) doesn't make them unconstitutional under federal due process arguments.

I agree that this shouldn't be the case, and I've seen it work injustices (or bad policy) before- and I also agree that the initiative process needs to be reformed especially in Oregon.

My take for years, based on the ever insreasing evidence that homosexuality is an immutable (biological) characteristic, and is therefore subject to the Civil Rights Act, just as race is. That in turn would bring the issue of gay marraige closer to the ambit of Loving v. Virginia (striking down the ban on interracial marraige).

[Guaranteed]

27. Is there federal precedent that changing a state constitution by majority

vote doesn't violate procedural due process requirements?

[depakid]

35. Why would there be?

I don't like the concept and would change it if if I could to provide for doctrinal integrity. That said, its quite consistent with the principles of federalism that states oreganize their affairs as they choose, and I can't see anything with respect to procedural due process under the 14th Amendment that requires otherwise.

[Guaranteed]

36. Does the federal Constitution require states to have a constitution?

If so, and that constitution is amendable by a simple majority vote, one could argue that it's not a constitution at all.

[depakid]

39. You could probably find support for that in Article 4

which discusses admission of new states and guarantees a "Republican government"

http://en.wikipedia.org/wiki/Article_Four_of_the_United_States_Constitution#Clause_1:_New_states

Among other things, state constitutions are organic documents, setting out how the government is organized and functions. No state would be admitted to the union, for example, as a monarchy. So as a practical matter- yes, the US Constitution requires a state to have a constitution, though it only loosely specifies what's in it, or how purely state laws are put into effect.

Louisiana is interesting in that regard, as it's laws are based on Civil (or Continental) law, whereas the rest of the states follow English common law traditions.

[4_Legs_Good]

28. I'm still astonished that you can amend the constitution with a simple majority

that kinda negates the whole reason for a constitution, which is in large part to protect the rights of the minority. If you can, with a simple popularity contest change all the rules for everyone, you've gone from a constitutional democracy to mob rule.

Let's hope we can stop this, and that we all grow up a little here in California, and realize just because someone is doing something we might not like, doesn't mean we have a right to stop them.

David

[Critters2]

45. Yep. It's the tyranny of the majority. Shouldn't be legal. nt

[totodeinhere]

31. I agree that it will eventually be overturned one way or another. But let's not kid ourselves.

When a majority of voters in three states vote for hatred and bigotry, it's a moral defeat for all fair minded people. Of to put it another way, it sucks.

[totodeinhere]

46. For what it's worth, Jeffrey Tubin said on CNN tonight that legal challenges to 8 are a "long shot."

He thinks it's a political question, not a legal one.

[TommyO]

32. My only prayer is that the arguments and decision are based on the CA Constitution

that way it can't be appealed to the federal courts. With the current makeup of the US Supreme court, I don't want any civil rights cases heading to them that can be avoided.

[woolldog]

38. Yup. That's a great point. nt

[Beetwasher]

33. I Sure As Hell Should Fucking Hope So!

Good post too!

[gardenista]

41. If we could kill prop 8 and the initiative process at the same time

I'm all for both of those, in a big way!

[Ediacara]

43. This makes me feel better, but it still stings

This election was like a great feast after being starved for eight years; and then finding a dog turd on the apple pie.

[Guaranteed]

47. Kick nt

[donheld]

48. People need to study Colorado's Amendment 2

Chief Justice Roberts had a lot to do with it being overturned.