The Separation of Powers and Prop 8

[AntiFascist]

I'm trying to understand the role of the various branches of government with respect to the electorate in decisions that are being made with Prop. 8.

The CA Marriage Ruling ruled, among other things, that marriage is a Fundamental Right of all classes of people. Prop 8 attempts to change the definition of marriage in the State Constitution to being "only between a man and a woman". As it stands currently, it seems that now marriage is a Fundamental Right which excludes gays and lesbians (except for those who choose to be married with the opposite sex) OR something which has now become ill-defined, but is similar to marriage, is now the right of all people.

It also seems, based on the legal arguments I have read, that only the Judicial Branch has the power to decide which Fundamental Rights are to be taken away from protected minority classes, and there has to be a very good reason (strict scrutiny under Title XVIII of the CA State Constitution). In this case, the Judicial Branch has the duty and the obligation to override the vote of the people, particularly when there is only a bare majority, if such reasons are not found.

Alternatively, the Legislature can "trump" the Judicial Branch by writing discriminaton into the State Constitution through a Revision, but only by a 2/3 vote in both houses, or through a Constitutional Convention which would involve the people more directly.

Please understand that this post does not directly question the Constitutionality of Proposition 8, I'm just trying to understand the proper procedures required based on the "Separation of Powers" argument alone. Prop. 8 may very well turn out to be unconstitutional, but the CA Supreme Court will decide this under a separate decision.

[DarkTirade]

1. I've always suspected that when it comes down to it

sexuality won't even be a factor in the whole 'seperate but equal being a load of crap' thing in the courtroom. Right now men and women have seperate marriage rights. Men have the right to marry women. Women have the right to marry men. But women don't have the right to marry women, and men don't have the right to marry men. And the precidents set by the courts say that 'seperate but equal' doesn't cut it.

Equal rights are only equal when they are the same.

[AntiFascist]

2. That's an interesting way to look at it...

from an individual point of view rather than a couple's point of view. The individual only has the right marry a member of the opposite sex. This is limiting for anyone who does not self-identify as a heterosexual.

The reason this might be important is because the court tends to look at it from an existing couple's viewpoint: two people who happen to be the same sex want to enter into a marriage. If you look at it from the point of view of a young individual who is worrying about and planning for their own future, it becomes an entirely different point of view. I would have been much happier with the stability offered me, as a young person, if I knew that the type of relationship I dreamed about would be recognized by the State on an equal basis with traditional marriages.