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CA Supreme Court to Hear Challenges to Prop 8

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For the past week or so, I’ve been wondering if some of those organizing the rallies against Proposition 8 hope to influence the California Supreme Court, using the appearance of social unrest as a means to push the court to overturn the popular proposition.

It looks like the unhappy activists may get their way. The state Supreme Court will hear a challenge to “the legality” of Proposition 8.  At issue is whether Proposition 8 is a revision to the state constitution or an amendment:

Unlike constitutional amendments, which can qualify for the ballot with signatures on initiative petitions, revisions can be placed on the ballot only by a two-thirds vote of the Legislature or a state constitutional convention.

The state’s high court has defined a constitutional revision as a fundamental change in government structure and has struck down only two initiatives as revisions. The last time was in 1991, when the court overturned provisions of a measure that would have required California courts to follow federal standards on criminal defendants’ rights rather than relying on the state Constitution to grant broader rights.

I contend it’s an amendment not a revision.  The constitution’s silence on the standards for marriage argues against the notion that Prop 8 revises the fundamental structure of California government and the basic rights it protects.

For it to revise, it would have to alter language in that document itself. All it does is add a provision which changes only the state Supreme Court’s understanding of the document, an understanding based on finding a notion (”dignity”) in the constitution which just isn’t there.

(When I searched the state constitution for that word, I found it only in Article 1, §28 (a)(2) on the treatment of victims of crime.)

Unless the opponents of Proposition 8 can provide evidence that the framers of the California constitution intended the state to recognize same-sex marriage, I don’t think they have much of a case. The “right” that activists claim exist was created by the state Supreme Court only this past May.

While I hope the court allows those who got married in recent months to retain the state recognition of their unions, I do believe the Court should let Proposition 8 stand, not because I like the idea of a provision defining marriage in our state constitution, but because I prefer democracy to oligarchy. And we’d have the latter if four justices were allowed to determine the state’s standards for marriage.

The antics of those upset by the success of the initiative suggest that all too many of them aren’t ready for the responsibilities of marriage. That said, many gay people are. It’s too bad they’re not leading the debate on this issue.

Comments

  1. Up until 15 years ago it never occurred to anyone that one needs to write a specific definition of the word marriage. Now it becomes necessary and is therefore an amendment – it is revising nothing.

    I heard that the marriages performed during the last 5 months are legal and valid. I would prefer that these couples, many of whom have been living as married couples – will be examples to the community at large.

    We need to change hearts and minds, not scream hate and discrimination.

  2. The court won’t overturn Prop 8.

    However, the anger said decision provokes will prove effective in further organizing a repeal effort. Regular folks have begun to “crash the gate” (metaphorically speaking) and take the reins of power from the more established national gay groups. You’re already seeing extensive organizing online that is completely separate from anything they’re doing.

    Those on the left (the base) are very adept at using the Internet for political purposes. If we had to wait for the national organizations to get their act together, it’d probably take a decade to repeal. But with the substantial push it’ll get from online organization, it’ll be repealed in 2010 or 2012. I’d put my money on 2010.

  3. You seem to think, Erik, that a campaign that brings together people to scream racial epithets, promote antireligious bigotry, demand the firing of restaurant managers for their political donations, and assaulting little old ladies is going to somehow be successful because it’s — wooooo — Internet-based.

    Lesson from 2000: just because something uses the Internet doesn’t make up for the fact that it’s a lousy product.

  5. that a campaign that brings together people to scream racial epithets, promote antireligious bigotry,

    There were a lot of folks who used to do that. Can’t put my finger on who it was. Something about white robes and hoods, burning crosses and some such? I think one retired today. Help me out here.

  6. because it’s — wooooo — Internet-based.

    Lesson from 2000: just because something uses the Internet doesn’t make up for the fact that it’s a lousy product.

    You Republicans are going to be in the wilderness for a loooong time. You have no comprehension why you’re party is losing elections now.

    In the last 5 years, a playing field that used to tilt strongly towards the Republicans, now decidedly favors the Democrats. The Internet is a big factor in that change.

    The Republican fundraising advantage? Gone.
    The Republican direct mail advantage? Gone.
    The Republican GOTV advantage? Gone.

    And the reason all those advantages evaporated? The left’s ability to harness the Internet as an organizing tool.

  8. Yeay, but remember, Erik, it didn’t take long for the Democrats to learn to harness the Internet. And the GOP had a light edge as recently as four years ago.

    I’ve read enough posts to know that leading Republicans are aware of the problem. Should the new RNC chair look into this, we’ll be back in the game not just in time for the 2010 elections, but in time to wrest the Virginia Governor’s mansion from the Democrats. And possibly Drumthwacket as well.

  9. is going to somehow be successful because it’s — wooooo — Internet-based.

    lol.

    The Republican fundraising advantage? Gone.

    Only cus Democrats actively pursue illegal contributions. Going out of their way to remove safeguards against them, courting illegal foreign campaign contributions, nearly destroying the country trying to hide it from the FBI.

  12. make no mistake, they have not won and can not win if we do not let them. There will always be 1/3 of us, just like there were only 1/3 of us that wanted to succeed from GB. This is a Constitutional crisis and may require drastic action to preserve our rights to “life, liberty and the pursuit of happiness.” Our right to vote and have that vote count is at stake, no less.

    M

  13. The court won’t overturn Prop 8.

    Perhaps, perhaps not. The SanFran Chronicle seems to think it won’t be either since Kennard dissented in hearing the case. I do disagree with Dan that this isn’t a revision, just like I believe these bans are violations of the 14th Amendment, but it really doesn’t matter. In legal thinking I suspect we are in the pre-Brown years one could say when Plessy was not seen in any way as violating the 14th Amendment. Guess that leaves us with a lot more work to do in the meantime.

    it’ll be repealed in 2010 or 2012. I’d put my money on 2010.

    I wish I shared your optimism but if the CA Supremes uphold Prop 8, I very seriously doubt a repeal will be successful for at least the next 10 years.

    If the CSC is anything like the 9th Circus, they’ll agree to anything that runs counter to common sense.

    Which means they’ll uphold Prop 8 then. 🙂 Boi From Troy made an interesting point yesterday that the GOP may get a very phyrric victory out of threats to ‘recall’ those Justices who ruled for SSM in May.

    http://boifromtroy.com/?p=7575

    Should the new RNC chair look into this, we’ll be back in the game not just in time for the 2010 elections, but in time to wrest the Virginia Governor’s mansion from the Democrats.

    I find that to be very, VERY doubtful Dan. Well, except for the Virginia Guv spot. That is a possibility, especially if the Dems are stupid enough to put Terry McCauliffe up as their nominee.

    Lesson from 2000: just because something uses the Internet doesn’t make up for the fact that it’s a lousy product.

    I used to believe that until Obama won handily earlier this month. Now I’m not sure what to think.

  16. I don’t support the will of the people.

    The will of the people elected a cryptofascist with the economic sense of Jimmy Carter, the respect for individual rights of Woodrow Wilson, and the ethical code of Richard Nixon.

    The will of the people shoved their heterosexual supremacist definition of marriage down the throats of the state of California.

  17. #17 – “The will of the people elected a cryptofascist with the economic sense of Jimmy Carter, the respect for individual rights of Woodrow Wilson, and the ethical code of Richard Nixon.”

    How dare you talk about Dear Leader Obamamessiah like that! Off to the Glorious Revolution Reeducation Camp in remote Wyoming for you! You will receive your pink star upon arrival. 😉

    Regards,
    Peter H.

  18. I don’t trust the will of the judges.

    The will of the judges interred the Japanese, declared slavery was allowed throughout the union and decided that the state can seize the property of free men and give it to other men to make it ‘profitable’.

    The Will of the people shoved their Homosexual Supremacist definition of marriage down the throats of the state of California.

    There. Fixed it for you.

  19. Typical glib response.

    The will of the judges interred the Japanese

    Your buddy Michelle Malkin had no problem with that.

    None of these Republican judges were going to take marriage rights away from heterosexuals, though Lord knows they’ve been asking for it for decades; after seeing a news report about the “Ashley Madison” website, I wonder why heterosexuals are defensive about an institution they seem to take lightly.

  21. problem is if you keep overturning this stuff, anarchy can be the only result. In a disturbing aside, the behavior of the gay lynch mobs is similar to that of the KKK and their like in the south during the civil rights movement. It’s only a matter of time till churches get burned and dissenters get hanged if they (the gay lynch mobs) don’t get their way. It’s hard to reconcile this behavior with the “tolerance, rainbow flag” crowd” but I have always known that in human nature, an oppressed group will never be satified, once released from their oppression (real or imagined,) until they themselves become the oppressors.

    M

  22. There are no “gay lynch mobs”. There is no Al-Gayda or Lezbollah that plans to send suicide bombers to anti-gay churches, businesses, or organization. There are, however, a few angry people who misplaced their anger at black people.