California Supreme Court To Look At Gay Marriage Ban
By Justin Gardner | Related entries in California, Law, Sexuality, Supreme Court
Well, they ruled on it once this year and looks like they’ll have to do it again thanks to the passage of Prop 8.
The California Supreme Court on Wednesday accepted three lawsuits seeking to overturn Proposition 8. The amendment passed this month with 52 percent of the vote. The court did not elaborate on its decision.All three cases claim the ban abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.
My question, how have things changed since now and then? And didn’t the opponents of gay marriage account for this? So what will they do if the Supreme Court overrules Prop 8?
More as it develops…
This entry was posted on Wednesday, November 19th, 2008 and is filed under California, Law, Sexuality, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
November 19th, 2008 at 9:27 pm
I think they will overrule it. My personal opinion on the issue of gay marriage is irrelevant, but from a legal perspective, I don’t see how they would uphold Proposition 8.
The law suits argue that this was a “revision” to the constitution, and not just an “amendment”, meaning, from what I understand, that it changes the constitution instead of just adding to it. Considering that the same court ruled that gay marriage was protected under the constitution, by definition that would mean that a change to the constitution to make it illegal is a “revision” and not just a simple addition. We could argue whether the court made the right ruling in the first place, but that’s beside the point. It would not make sense to me if they uphold the Proposition, given their previous ruling.
But that’s just my amateur legal opinion. I wouldn’t be surprised if there was some legal detail I’m missing, and I would be interested to hear it. I guess we’ll see.
As for what Proposition 8 supporters will do next, I don’t think they would have much option. They could probably campaign against the judges the next time they are up for re-election, but that would still not take gay marriage off the books.
November 19th, 2008 at 9:54 pm
I voted against prop 8, but I don’t understand this distinction between “revision” and “amendment”. Is the 19th amendment to the Constitution of the US giving Women the right to vote an amendment or a revision?
November 19th, 2008 at 10:04 pm
The US constitution makes no distinction between revision and amendment, but the California state constitution does. Also, I believe opponents of prop 8 tried to file such a lawsuit (it’s a revision not an amendment) well before the vote. The court said that since it hadn’t passed, they couldn’t rule on that issue yet. Now they can, and I hope they strike prop 8 down. Not just because I believe in marriage equality, but if prop 8 is allowed, then by simple majority popular vote the people of California would be able to enact amendments like: Mormons can’t have driver’s licenses or Latinos can’t teach in schools.
November 20th, 2008 at 8:32 am
Well, leave it to California to regard synonyms as having distinct meaning. If we use the words “addition” and correction,” I think that covers the distinction they are trying to make.
The problem here lies in the common (and many say controversial or misguided) judicial practice of applying a generally-stated principle to a specific circumstance. Thus, a state or the federal supreme court may decide, for example, that a phrase suggesting equal rights applies to the mechanics of a wide variety of practices. Applying such an abstract idea to a wide variety of hypotheticals leads most sensible folks to acknowledge that it can be difficult to decide where the line was intended to be drawn. As well as where it ought to be drawn.
So a very defensible argument can be made that when a constitution’s general principle does not speak directly to a given issue, and a later rule is added to the constitution which DOES speak directly to the given issue, then the new rule is an addition, not a correction. In other words, the addition is not a correction to the constitution itself, but a specific clarification based on what the public believes to be an erroneous application.
Let me just add that I would not be that troubled if the CSC struck down prop 8, because I feel that a constitution with both a general provision for civil rights and a clause proscribing one particular type is a constitution with an inherent contradiction. When one examines the language of the folks who oppose gay marriage, it’s pretty clear that their goal is to perpetuate a governmentally-granted social privilege while excluding one particular class of Americans.
This is not to say that the will of the people is unworthy of regard. Were gays to take a more patient view, and undertake to keep persuading folks of the righteousness of their cause instead of relying on the courts, it would at least rob conservatives of one tedious argument. Notice that I am not actually counseling patience, merely pointing out that it could hold a reward.
The most consoling thing to me is my strong belief that in another generation, few folks will give two turds about how gay civil rights were decisively established. Here in MA where I live, the establishment process was highly suspect. Our state supreme court ruled that the constitution applied in a way that the people who wrote it simply could not possibly have intended. Our democrat-dominated legislature openly conspired to deprive the citizens of their right to express their will on the issue, and no such vote occurred. The legislature prevented it TWICE.
Yet I have see no evidence of simmering resentment. Life goes on. The democratic majority has substantively GROWN. Most folks simply have bigger fish to fry, and as each day passes, I feel it’s pretty clear to the overwhelming majority of the people of Massachusetts that nothing important to our culture has been lost. Unless you count the alleged sanctity of constitutional process. And I guesstimate thatfewer that 1 person in a thousand gives a sh!t about that.