LISTEN UP DU! This is what we need to know about Prop 8....

[AntiFascist]

Proposition 8 was drafted BEFORE the California Supreme Court ruled that gay marriage is legal. At that time, stating that marriage was "only between a man and a woman" would have been a simple enactment which could have been executed as an amendment to the Constitution. BUT, the marriage ruling changed everything: marriage is now considered a FUNDAMENTAL RIGHT and gays and lesbians are now considered a SUSPECT CLASS which basically means that they should be afforded fundamental rights under the EQUAL PROTECTION CLAUSE of the state constitution. This ruling brought about sweeping changes to our understanding of marriage, and covers not only equality under the equal protection clause, but also an "individual's interest in personal autonomy protected by the right of privacy" (government cannot now violate the rights of same-sex marital privacy), and "the liberty interest protected by the due process clause" (deprivation of such a liberty triggers a requirement for due process). These constitute far reaching changes to our basic GOVERNMENTAL PLAN and for a proposed modification to the State Constitution to remove these changes would be considered broad revisions to at least three separate portions of the Constitution which are not even addressed in the Prop 8 initiative.

After the marriage ruling, a petition was circulated calling for the removal of Proposition 8 from the Novembr ballot on the grounds that it was a constitutional REVISION, not an amendment, that only the state legislature (by 2/3 vote) or a constitutional convention could place before voters. Also the petitions used to gather signatures to qualify the measure for the ballot inadequately summarized its effect. The court denied the petition without comment, but as a general rule, "it is improper for courts to adjudicate pre-election challenges to a measure's substantive validity." The question of whether Proposition 8 is a constitutional amendment or constitutional revision remains unresolved, and a new petition arguing that Proposition 8 is a revision was filed by civil rights groups on November 5.

No matter what the news media or any legal experts may say, these are the main reasons for which the California State Supreme Court could very well rule that Proposition 8 is invalid. It does NOT need to be taken to the Federal Supreme Court, and its status as a State Constitutional Amendment has not yet been decided. Don't let anyone tell you otherwise and, by all means, stand up for your rights!

[JerseygirlCT]

1. Thank you. That was the most clear and concise

summation of the situation that I've read.

Now I think I understand the whole weird situation.

[AntiFascist]

2. Thanks, that means a lot!

After hearing George Tekei give an impassioned plea on CNN last night, I realized that the gay community needs to understand all the legal details concerning the current status of our rights.

[JerseygirlCT]

29. Not gay myself, but I do feel very passionately about this

issue. No one can consider their rights safe until everyone's rights are safe.

[Happyhippychick]

3. Thank you.

[Veritas_et_Aequitas]

4. Thanks for the information.

It is most helpful.

[EFerrari]

5. Great clarification. Thanks!

[varelse]

6. K&R

Thank you.

[dkofos]

7. How true. It's all about equality

[AntiFascist]

9. Marital privacy and due process are also very important...

I'm not a lawyer and I'm not sure how this works, but I believe that Roe v. Wade was decided based on marital privacy rights.

[Hepburn]

10. Griswold v. Conn....that was based on Marital Privacy Rights...

...Roe v. Wade ~~ Constitutionally protected right of Privacy.

[Ms. Toad]

18. That's federal - leave it alone, for now. n/t

[AntiFascist]

34. Sorry, you're right....

I was trying to make a layman's point that privacy rights are important in addition to equality.

[WillyT]

8. Big K & R !!!

:kick:

[dickthegrouch]

11. Thanks for that great clarity

One further point:

The result of the election has not yet been certified by the Secretary of State. Until it is, there is no legal basis for suspending issuance of licences.

[amber_86]

12. That make sense now

I didn't really understand what Proposition 8 means but now reading ur post I understand now. Thank you. Well maybe GLBT should start something like if we can't get marry then a man and a woman that are marry can't get divocse ever. Because how many people get marry and get divocse and get marry again. Because they like to use the bible on GLBT well use the bible on them. Because once you get marry you are not suppost to get divocse. So yeah right am I wrong. So who do they think they are.

[nichomachus]

13. I was told the other night not to expect a ruling until 2009

although it could come as early as January.

However, it would make a wonderful holiday gift.

[AntiFascist]

16. I've heard that the CA Supreme Court announced that...

the would decide on this case as soon as possible. The problem seems to be that they are in the middle of other cases at the moment.

[plaintiff]

20. Is the CA SC different from others...can take up a case without a plaintiff?

and a lawsuit?

[AntiFascist]

21. A petition for extraordinary relief is filed here, one of several...

http://data.lambdalegal.org/in-court/downloads/strauss_ca_20081105_writ-petition.pdf

The CA Supreme Court has agreed to make a decision on this, as soon as possible.

[plaintiff]

25. Thanks, I assumed there was something in the works but hadn't seen this.

I read it somewhat hurriedly but well enough to be persuaded...as if I hadn't been before. ;-)

[nichomachus]

28. They probably want to wait until the vote is certified

because if the totals do switch -- as some hold out slim hope they will -- the case would be moot. There would be nothing to decide.

[frebrd]

14. K&R!

[cboy4]

15. Yes indeed. Excellent information!!

:kick:

[Taylor Mason Powell]

17. A kick and a recommend from a California lawyer

Thanks for posting this. I can vouch for its accuracy. I have read the petition filed November 5, and it's VERY GOOD. Don't give up hope!

[Karenina]

33. The rights of a minority should NEVER be

subjected to a simple majority vote to repeal. That's just NUTS.

Now that I'm reassured that cooler heads will prevail over the BLAME TEH BLACK meme, I'm seeing this tempest as a lance to pierce the festering pustule of American "other" issues. It's actually a good thing to see so many biases exposed and where they intersect. This could be the start of something BIG! http://www.youtube.com/watch?v=11_YoQwOsxo

[plaintiff]

19. Until we get a ruling agreeing with that analysis Prop 8 will continue to be treated as lawfully

passed. The state is already enforcing its provisions.

[AntiFascist]

22. This is required by existing law, no "decisions" have been made...

other than to abide by the law which requires that the initiative go into immediate effect.

[plaintiff]

26. But doesn't the state's own Secretary of State admit that not all votes are yet counted?

I have read (and assume it's true) that they stopped issuing any licenses on last Wednesday morning. Not sure what to make of it.
(I understand your point, it's just that I don't quite see how they determined that it did indeed 'pass' so quickly.)
:shrug:
edit small typo

[AntiFascist]

30. That's a great point, but I think the law reads that...

initiatives go into effect at midnight on the following day after the election, or something to that effect.

Strategically, I think its important for the courts and the CA legal system to not appear to be "activist", but to follow all of the rules specifically because there are so many good legal arguments for overturning Prop 8. Also, the votes should all be counted carefully and any corruption investigated.

[plaintiff]

31. Okay, that's probably the case...it wouldn't be the only goofy law in the country,

would it? I agree that we need to cross all the legal Ts so as to make our case as airtight as possible.

[CTyankee]

23. Ah, this answers my question as to why CT had a ballot question

on whether a constitutional convention should be held, not the Prop 8 avenue. Of course we don't really have Initiatives here in CT (don't know why not but sure don't want them!).

CT voters said "NO" pretty loudly. I'm not sure about the main reason. Hubby says it was because it was a Catholic Church backed deal and so many CT voters distrust the Church. I'm not sure of that since we have lots of Catholics in our state. I would love to see a detailed breakdown, if one exists, as to why CT voters nixed the CC.

[Taverner]

24. Bookmarked

Take this to the courts ASAP

[crickets]

27. Thank you. -nt

[AntiFascist]

32. Just wanted to add...

spouses are not required to testify against each other...I think this would also be covered in the state constitution.

[Disturbed]

36. Even the Gropenator said that the CA SC would deal with it.

This Prop. will not invalidate marriage of Gays, period. It was not put forth legally. All the hoopla is not necessary.

[AntiFascist]

37. I've read that the governor "expresses hope" that it will get overturned...

and he enoucourages backers of gay marriage not to give up. He is confident that existing marriages will not be affected. If you find something more substantial than that please link to it. Someone suggested that he could instruct the CA Justice Dept. to stay the amendment until the cases are decided, but I don't know if this is true.

[Cali_Democrat]

35. Rec'd

:thumbsup:

[cliffordu]

38. K&R

[TexasObserver]

39. I dug into the legal side a little, to better assess the odds of prevailing.

I like the chances of getting a ruling that a simple majority vote is insufficient to alter the constitution in the way envisioned by the prop 8 proponents.

I took a look at the case filed in California by National Center for Lesbians Rights, ACLU and others, a petition for injunction and issuance of a writ of mandamus:

"AMENDED PETITION FOR EXTRAORDINARY RELIEF, INCLUDING WRIT OF MANDATE AND REQUEST FOR IMMEDIATE INJUNCTIVE RELIEF; MEMORANDUM OF POINTS AND AUTHORITIES". National Center for Lesbian Rights (2008-11-05). Retrieved on 2008-11-06.

I like their arguments, and if the Supreme Court is really committed to establishing the right of gays to marry, and the right of gays to live normal lives, they can so rule in this case.

I am fairly hopeful, in spite of some who don't give the case much chance of success. This is an ideal case for the justices to drop the hammer on 51% deleting fundamental rights of a minority group.

[AntiFascist]

40. Exactly...

and if you are going to take away Fundamental Rights from a Suspect Class don't you have to cite specific examples where this is necessary? The only example presented (in the Yes on 8 ads) was where gay marriage would necessarilly get taught in schools, which might encroach on certain religious freedoms.

[TexasObserver]

43. I'm pretty pumped up about the chances for relief.

An injunction stopping any applicability of the prop 8 passage would be great, and pending the consideration of the issues by the court, would seem reasonable.

I'm hopeful.

[greeneyedboy]

41. It WILL be overturned. Here's why:

The most notable case in which California voters were allowed to alter a fundamental right was the one imposing the death penalty, and thus adjust Californians' fundamental right to be free of cruel and unusual punishment.

However, that case is different in two important ways:
- it didn't *eliminate* the protection against cruel and unusual punishment, it clarified the parameters of that right.
- more importantly, it didn't set aside one or more suspect classes as the only groups to receive the death penalty (!).

If enforced, Proposition 8 would eliminate (strike one!) a fundamental right (strike two!) from a suspect class of people (you're OUT!).

Oh, and it was just six months ago that this same court decided that marriage was a fundamental right and sexual orientation was a suspect classification.

[greeneyedboy]

42. DU the CNN poll: marriage equality a civil rights issue? 52 yes 48 no

[AntiFascist]

44. Do you have a link for this, or is it too late? n/t

[greeneyedboy]

45. cnn.com home page - last i checked it was still there.