Prop. 8's Legal Question

[cboy4]

Bob Egelko, Chronicle Staff Writer
Wednesday, November 19, 2008

(11-18) 18:00 PST SAN FRANCISCO -- The central issue in the legal battle over Proposition 8 is whether the voter-approved ban on same-sex marriage is a state constitutional amendment, which can be passed by initiative, or a constitutional revision, which can't.

From another perspective, the question is whether the scope of a minority group's rights in California should be decided by the voters or the courts.

The state Supreme Court may decide today whether to dismiss or grant review of six lawsuits challenging Prop. 8, approved with a 52 percent majority on Nov. 4.

It's the same court that ruled 4-3 on May 15 that the California law defining marriage as the union of a man and a woman violated fundamental rights of gays and lesbians under the state Constitution: the right of equal treatment and the right to marry the partner of one's choice.

The legal controversy now is much different. Rather than considering the constitutionality of prohibiting same-sex marriage, the court would decide whether inserting that prohibition into the Constitution was such a basic change that it amounted to more than an amendment.

Since California voters adopted the initiative process in 1911, they have been allowed to amend their Constitution by submitting a certain number of signatures and approving the change by a majority vote. A constitutional revision, on the other hand, can be placed on the ballot only by a two-thirds vote of the Legislature or a new constitutional convention, both unlikely routes for a future Prop. 8.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/18/BAAV147103.DTL&type=politics&tsp=1

[NorthCarolina]

1. If this Prop stands, we need to get an anti-divorce Proposition on the next CA Ballot

eom

[Maat]

2. No ...

we must get a repeal together A.S.A.P.; and, we must start our campaign now.

I do not believe, however, that this horror will stand (Prop. 8); it would escalate this constitutional crisis immeasurably.

[keepCAblue]

3. The last 3 paragraphs...don't make it look too good for our side.

"You shouldn't be able to take away those rights simply by putting another measure on the ballot and having a majority vote," said Grodin, one of three justices voted out of office in 1986 in a backlash against court rulings overturning death sentences.

Another Hastings professor, Calvin Massey, invoked the court's 1978 ruling upholding the death penalty as a reason that the Prop. 8 challenge should fail.

"I can't think of any more fundamental right than to not have my government put me to death," he said. "That was found to be an amendment, not a revision."

[Zuiderelle]

4. The difference is that it affects all citizens regardless of race, religion, sexual orientation.

So it's not really taking rights away, any more than voting about whether to allow life imprisonment without parole. That's no less taking of rights from a criminal than allowing the death penalty, even though it's less inhumane.

It's awful, definitely, but it's not the same and I can't see how it could possibly be used as a precedent to justify taking rights away from a specific minority group of law-abiding citizens.

There are different standards we already apply to criminals.

[FreeState]

5. Correct - you beat me to it - GLBT are a suspect class - criminals are not n/t

[AntiFascist]

6. Exactly...

criminals have limited rights to begin with.

Keep in mind that groups defending the civil rights of racial minorities (NAACP, latino and Pacific-Asian), women, and even several churches (includng Episcopal bishops) have all filed separate lawsuits against Prop. 8 defending their own rights which could become eroded by Prop. 8.