The Prop 8 (Yes on 8) campaign has now filed a motion...

[AntiFascist]

to intervene in the case that is now before the CA Supreme Court. They seem to be arguing that if Prop. 8 is overturned then this will open the door to the elimination of California voters' ability to amend the state constitution through the initiative process in the future.

While there are DUers who argue that California should never have had this ability in the first place, please understand that Prop. 8 is a very extraordinary circumstance in that it attempts to eliminate a Fundamental Right from a protected class of people. It also makes broad changes to the state Constitution where it should be considered a REVISION and not an AMENDMENT. This will rarely be the case with future propositions that may be brought forth through the initiative process.

We do not need to eliminate California's ability to bring forth state amendments through the initiative process in order to win the case to overturn Prop 8. We simply need to show that, in light of the CA gay marriage ruling, the initiative process was improperly used in this circumstance.

Here is the motion to intervene filed by Mary McAlister of the Liberty Council in Lynchburg, VA:

http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/motion-campaign-s168066.pdf


Here is an amended petition in the Robin Tyler case which, if you go to Section 7, provides a great summary of facts in support of overturning Prop 8:

http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/motion-campaign-s168066.pdf

a. the constitutional right to marry is one of the basic, inalienable civil rights guaranteed to an individual by the CA Constitution,

b. the right to marry must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the legislature or by the electorate through the statutory process,

c. these core substantive rights include, most fundamentally, the opportunity of an individual to establish - with the person with whom the individual has chosen to share his or her life with - an officially recognized and protected family possessing mutual rights and responsibilities,

d. the substantive right...to establish an officially recognized family...constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the CA Constitution secures to all persons for the benefit of both the individual and society,

e. statutory definitions which restrict marriage to opposite sex couples "treat persons differently on the basis of sexual orientation",

f. sexual orientation is a suspect classification,

g. the distinction...between the designation of the family relationship available to opposite-sex couples and the designation available to same-sex couples impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples,

h. the state interest in limiting the designation of marriage exclusively to opposite-sex couples..cannot properly be considered a compelling state interest for equal protection purposes,

i. definitions of marriage which draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage...are unconstitutional.

[hedgetrimmer]

1. K&R

[PATRICK]

2. Circular argument for the circular

file. That is like saying the Hitler anti-Semitic laws should stay on the books because otherwise all of law and law-making would be invalidated.

And yes, the propositions, even ones we heartily support must be subject to the rule of law because they will all be short-lived and ineffective unless legislation and law confirms them. There are many ways the proposition votes thrive or die. One of the best tests is constitutionality. If not that, it will be fought in the legislature and their elections or by dying a natural death like their electric cars.

Putting a stake through the heart of the hypocritical tyranny of propositions is not a bad judicial outcome.

[AntiFascist]

3. I don't disagree with you....

all I'm saying is that we don't have to go that far in order to overturn Prop. 8. Also, and more importantly, it is important to make the distinction with initiatives, put forth by a simple majority, that attempt to remove fundamental rights of a protected minority.

[CTyankee]

22. We don't have these Initiatives here in CT. The route the Church went was

the ballot question on whether CT should hold a Constitutional Convention. They tried to portray it as an expansion of democracy but it was really an antigay ploy.

Well, there were many oxen that could have been gored by a CC, including prochoice people and unions, as well as the progay marriage people. You can count me in all 3, but obviously the risk was spread around and forged a de facto coalition against the ballot question. We won by a healthy majority. Under this scenario the CC question didn't have a chance.

I am glad we don't have Initiatives here in CT. I have seen how evil they can be and since we have achieved a wonderful situation of prochoice, progay and pro-union here, I'd say our system works beautifully!

[PATRICK]

27. The real battle is

getting a decent, responsive legislature. Propositions and the exceedingly risky Constitutional Conventions are other options with risks and high limitations. In NY our Constitution has tied their hands and helped create the current mess, but is it time to trust the mess-makers with changing it, because that is exactly who will running the show and allowing really bad stuff in in order to get "bi-partisan" backing. Our information and democracy is not currently healthy enough to take the chance on any Constitutional Convention. It may be shortly and it may be a brief opportune window, but even that might be delayed until a dangerous time arrives again.

In such a case anyway, the amendment route might become a lot easier. We have to have a legislature and judiciary we can depend on and shut the door on "popular" choice Presidential disasters.

[CTyankee]

28. The thing is: how do we educate the electorate about majority voting?

They see it as just an extension of elections where the person with the majority of votes wins. There has to be a huge effort at educating them about the "tyranny of the majority" while keeping away from anything that smacks of a "special" or "new" right just for gay people that somehow diminishes theirs.

[bliss_eternal]

4. I'll have to re-read this one I'm less fatigued...

(so I'm bookmarking)...

I don't completely understand--as I thought it was deemed a violation of CA's Constitution to not allow glbt residents to marry. One of the reasons I didn't understand the prop 8 vote being allowed to begin with. If this gets the hideous thing overturned--I'm all for it!

Again, I'll re-read when I'm more rested--been a long day.

Thanks so much for posting, this update. :thumbsup:

[AntiFascist]

8. You're welcome :)

you might also look at my post here:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=4423010&mesg_id=4423010

(when you're more rested of course) People seem to be supportive of my explanation, so I hope it is accurate.

Prop 8 was drafted before the CA gay marriage ruling, so one of the arguments is that it does not properly address overturning the ruling with its simple language, and by being simply an amendment.

[bliss_eternal]

9. Wonderful...thanks for the additonal link!

:)

[Jamastiene]

5. Kicking for awareness.

Also recommended.

[ColbertWatcher]

6. Kick and rec! One more thing ...

... as a Californian thoroughly ashamed that my California did this, I am wondering why the hell is this being filed in in Lynchburg, Virginia?

Is this not a California state issue? To alter the California state constitution?

What the hell is with Virginia that makes them think they should be getting all up in California's business?

Is this some kind of jurisdiction thing?

[AntiFascist]

10. This is filed in the Cali Supreme Court...

but obviously the main people behind Prop 8 are from out of state. I agree, they should stick to their own primary jurisdictions.

[Manifestor_of_Light]

11. Why in VA??? Good question.

Sounds to me like VA does not have jurisdiction. I have not read the complaint.

Gay marriage is already legal in CA due to the CA Supreme Court ruling, and no referendum can change that. No ex post facto laws may be passed, period. The case law is supreme.

If a gay marriage case goes to the Supremes in DC, and they rule in favor of it, gay marriage will be legal in all 50 states.

In fact I wonder what would happen if a validly married gay couple moved to a state that does not recognize gay marriage, and their marriage should be recognized under the full faith and credit clause.


Nobody on TV has mentioned no ex post facto laws, full faith and credit, the due process clause, the privileges and immunities clause and the equal protection clause (the last 3 are in the 14th amendment).


I am a lawyer but I do not play one on TV :D

Don't be afraid; I do not have a license so I cannot sue you. :D

[ColbertWatcher]

12. If you don't mind, I have a question regarding the full faith and credit clause ...

... why do doctors have to get licenses for each state, but marriage licenses are good everywhere? How are those licenses different? Are they different? This is a stupid question, isn't it?

[AntiFascist]

14. I'm not a lawyer at all, but...

I think Lambda Legal and others want to take it slow with respect to the Federal Supreme Court due to their conservative biases, and their past history of unconstitutional rulings (Bush v Gore).

[newtothegame]

7. good to hear n/t

[Solly Mack]

13. K&R

Thank you

[Manifestor_of_Light]

15. OK, I read the petition. They don't have standing.

The petitioners don't have standing to sue. They are saying that if their referendum is invalidated, (Unconstitutional), then there is a slippery slope that will stop the people of CA from amending the COnstitution.

The proposition is unconstitutional. The only referenda that will be stopped will be the ones declared unconstitutional by the courts. Their reasoning is faulty. They have no direct interest in the gay marriage issue. They cannot show that they were personally harmed by gay peoples' marriages.

No standing. This one should get thrown out.

If the lawyer in VA is admitted to practice in CA, then she can file the petition.

The stuff which is bolded above is absolutely on point about suspect class and compelling state interest.

[ColbertWatcher]

17. So, what could be their reason to file this?

How could they twist this and to what end?

[AntiFascist]

18. I think they are just trying to create an excuse so that they can participate...

in the proceedings as a third party? Any lawyers want to chime in?

[ColbertWatcher]

19. That can't be the only reason.

I'm asking because every time I read about Prop Hate I am reminded of that case Boy Scouts v Dale (I think). The one against that guy who was an Eagle Scout and they wanted to kick him out because he was gay. The Supremes ruled something like since the Boy Scouts were a private group they were allowed to discriminate. This case has been the basis for all kinds of shit.

I wonder if the ruling on this case will open the door for more GOP shenanigans?

[MrCoffee]

30. You know how they'll get standing, right?

Someone, at some time, will find Jesus and request that the marriage be annulled as unconstitutional rather than go through divorce proceedings.

[David__77]

16. Overturning 8 would be a narrow ruling not impeding the overall initiative process.

This only pertains to equal protections matters affecting suspect classes. We haven't seen it before and may not see it again.

[TexasObserver]

20. The second link is incorrect. It leads to the same document as the first link.

Thanks for posting.

I've got the first filing, and want to get the second one.

I've already gotten and read the petition filed by the National Lesbians.

[AntiFascist]

24. oops, sorry, wish I had caught that ealier...

here is the amended filing in the Robin Tyler case:

http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/20081105135855223.pdf

Here is the webpage where you access all of the CA Supreme Court filings:

http://www.courtinfo.ca.gov/courts/supreme/

[TexasObserver]

26. Thanks. I'll download it and read it later, see what it says.

I like the petition for relief. I think we've got a shot at winning at the SC of Cali level.

[nichomachus]

21. Propositions made sense at the time they were started

At the time, the robber barons had a stranglehold on the state government (so, what else is new) and proposition were set up as a way to give the people some direct voice.

But those were different times -- as Al Gore points out in "The Assault on Reason." We had a two-way conversation about politics.

Now, the whole process has been turned on its head and propositions serve only those with huge amounts of money. We only have a one-way conversation about politics -- a series of 30-second ads on TV.

I'm opposed to propositions, in general, because about 90 percent of people who vote on most propositions have no idea what they're voting for. The propositions rise or fall depending on who can put out the most and the slickest -- or most deceptive -- ads. It's a really crappy way to pass laws or amend the constitution.

I try to pay attention to these things and except for a few pretty clear ones -- like Prop H8 -- most are very confusing and even the literature you get doesn't help.

It's definitely time to do away with them.

Yesterday, my partner was talking to a woman who congratulated him on our wedding Oct. 19. She gave him a big hug and added "Well, at least I voted for Proposition 8." He told her she was supposed to vote against it. She said "Oh, no. I thought I was voting for families." Her daughter is a lesbian and she thought Prop H8 helped gay people.

[CTyankee]

23. I am really happy CT doesn't have Initiatives. See my post upthread

about our experience with a ballot question on holding a Constitutional Convention, which failed in our state. Some rightwingers are complaining that the oppo to the CC was too driven by those terrible unions (as if their members don't have any right to their say). Opposition coalesced beautifully to support equal protection, abortion rights and keep unions from being weakened. Plus, we have a great state supreme court decision on gay marriage. I don't see anybody shrieking and tearing their hair around here since the election...

[AntiFascist]

25. My fear is that if we overreached on this....

we could end up risking losing the case.

[Johonny]

29. I'm all for

elimination of California voters' ability to amend the state constitution through the initiative process in the future.

The initiative method is frankly too easy to make absolutely horrible laws. It's not like prop 8 isn't the first terrible idea funded by out of state citizens to be forced on Californians. Heck this crap does even take a super majority to pass. Which is horrifying when your talking about modifying your constitution.