Wednesday, November 05, 2008
Prop 8 update
What I know so far:

1. Nowhere in the amendment does it revoke the rights of those persons who have already been married (per Atty. General Jerry Brown).

2. Two lawsuits have already been filed challenging the constitutionality of this amendment.

3. Since the court ruling that led to this proposition found that marriage was a "fundamental right" under the state constitution, you cannot take that right away by simply amending the constitution; you would need to revise it. While an amendment only needs a simple majority vote, a revision requires a constitutional convention, which itself requires a two-thirds legislative vote -- something highly unlikely to happen in California.

4. As a commenter said on Shakesville:

The Prop 8 amendment simply banned gay marriage, without addressing that equal protection factor.

When the United States Constitution was amended to undo a provision of itself (prohibition), it specifically negated that provision---"The eighteenth article of amendment to the Constitution of the United States is hereby repealed. "

Prop 8's wording did no such thing, so what we have here is that the California State Constitution now says two different things. It says

"(a) A person may not be deprived of life, liberty, or
property without due process of law or denied equal protection of the
laws; . . . (b) A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens." (Article I, Section 7)

which the State Supreme Court has interpreted to include marriage rights, and now with Prop 8 passing it also says

"Only marriage between a man and a woman is valid and recognized in California."

and I do not see anything to specify which legitimately outweighs the other; it's like two laws saying "cars must be red in color" and "cars must be green in color." There is no part of this new amendment saying "This repeals the right of equal protection under the law" or "nothing in this Constitution shall be construed to require otherwise," and thus it seems to me that the constitutional amendment is unconstitutional---and what on Earth gets done when that happens?

I think this is what the California Supreme Court is going to have to decide. And since they already decided against denial of rights, it is likely that they will do so again.

Good news for all. Now, about all you haters....

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5 Comments:

Blogger Cassandra said...

Thank you for this.

Blogger Faith said...

As someone I used to know once said, "You betcha."

Blogger Bunny Queen said...

Thank you, Faith. You have given my wife and me a bit more hope today after spending much of the day in disbelief and sadness. Since we live in MN, our marriage isn't recognized here anyway, but I have a little more hope now than I had this morning that we may see that change sooner, rather than later.

Blogger Allison said...

Thanks for this info. The haters are really scary and apparently they have money, too.

Blogger jay paul said...

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