CA Supreme Court Will Review Challenges to Prop. 8

The California Supreme Court today agreed to decide whether voter approval of Prop. 8 repealed the state constitutional right to same sex marriage that the court recognized earlier this year.

The court agreed today to review two related arguments by opponents of Prop. 8 - that the measure exceeds the legal scope of a ballot initiative by allowing a majority to restrict a minority group's rights, and that it violates the constitutional separation of powers by limiting judicial authority.

The supreme court's direct action will eliminate the need for litigation to work its way through trial courts and intermediate appeals before reaching the state's highest court. [more ...]

About California election law and constitutional amendment procedures I know nothing. The questions seem to turn on whether Prop. 8 is an amendment or a revision of the state constitution. A ballot initiative can be used to amend but not to revise.

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.

Here are the arguments, boiled down to one sentence for each side:

Lawsuits to overturn the initiative contend it was a revision because it denied equal protection to a minority group and eviscerated a key constitutional guarantee. Supporters of Proposition 8 counter that it merely amended the constitution by restoring a traditional definition of marriage.

Do we have any authorities on California constitutional law in the audience who want to weigh in?

One last thing. The activists who oppose gay marriage are trying to intimidate the court:

Supporters of Proposition 8 have threatened to mount a recall of any justice who votes to overturn the measure. The court's members serve 12-year terms and appear on the ballot unopposed in retention elections.
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    3% (5.00 / 2) (#1)
    by DaveOinSF on Wed Nov 19, 2008 at 09:20:46 PM EST
    In the May ruling, the court wrote:  
    Under this state's Constitution, the constitutionally based right to marry properly 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 initiative process.

    The question, then, is whether marriage, which cannot be abrogated by the statutory inititative process, CAN be abrogated by the amendment process.

    The difference between the initiative and the amendment process:  In CA, signatures from 5% of the electorate (# of voters in most recent gubernatorial election) are needed for something to qualify as a statutory initiative; for an amendment, signatures from 8% of the electorate are needed.

    The justices have held that a process requiring signatures from 5% of the electorate cannot abrogate a fundamental right.  Will they then rule that a process that requires signatures from 8% of the electorate is sufficient?

    Wow. CA's laws on initiatives (none / 0) (#2)
    by shoephone on Wed Nov 19, 2008 at 09:44:41 PM EST
    are much more lenient than WA's. Here, an initiative sponsor must collect signatures from 10% to qualify for the ballot and citizen initiatives may not be used to amend the state constitution. Only legislative bills can do that and they must pass by 2/3 margin.

    CA's structure of government is FUBAR (5.00 / 2) (#3)
    by andgarden on Wed Nov 19, 2008 at 09:55:56 PM EST
    from top to bottom.

    Boggled the mind (none / 0) (#13)
    by blueaura on Thu Nov 20, 2008 at 10:53:59 AM EST
    When I first heard about this, and that CA could amend their constitution with a simple majority vote, I thought I was hearing it wrong. That doesn't make any sense, does it? I didn't find out until later that there was a difference between an "amendment" and a "revision". Say what?

    What a clusterf*ck they have there.


    I know nothing. . . (5.00 / 1) (#4)
    by LarryInNYC on Wed Nov 19, 2008 at 10:09:08 PM EST
    about law in any state, but if the original Supreme Court finding was that the right to gay marriage originates in the actual original constitution, then if the idea of stripping away that right doesn't constitute the highest degree of revision to the document, I can't imagine what would.

    Simpler (5.00 / 1) (#9)
    by NMvoiceofreason on Thu Nov 20, 2008 at 02:21:39 AM EST
    Article IV, Section 2

    "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

    As several states have recognized the right for people to marry regardless of their sexual orientation, the Constitution forbids the State of California by removing that right BY ANY MEANS.

    The recognition that such a right was also embodied in the State Constitution simply means that they had an independent ground to recognize it.


    that's kind of what i was thinking too. (none / 0) (#5)
    by cpinva on Wed Nov 19, 2008 at 10:39:53 PM EST
    are the proponent's of prop. 8 asserting that the CA constitution presently defines marriage as only that between one man and one woman?

    were that the case, than:

    1. the CA supreme court presumably wouldn't have previously ruled as it did.

    2. prop. 8 would be redundent.

    WHAT'S WRONG WITH THESE PEOPLE??!! (4.00 / 1) (#8)
    by blogtopus on Thu Nov 20, 2008 at 12:37:45 AM EST
    Supporters of Proposition 8 have threatened to mount a recall of any justice who votes to overturn the measure.

    These panty-sniffers need to get their heads out of other's bedroom windows and other people's lives. Whatever happened to Live and Let Live with these a***oles?

    Sorry, it just disgusts me that they really don't see how mean spirited and just plain ignorant their actions are.

    To me the question is what's wrong (5.00 / 1) (#11)
    by MyLeftMind on Thu Nov 20, 2008 at 10:26:23 AM EST
    with the rest of us.  Those kind of people have always done their nasty work.  The Catholic Church tortured and murdered hundreds of thousands of homosexuals along with the millions of women they killed.  The Nazis rounded up and murdered gays along with the Jews they imprisoned, tortured and killed.  Just as the bible has been used to "prove" whites are better than blacks, it's now used to "prove" straights are better than gays.  But like the witch trials, Nazi imperialism, lynching of black Americans and other forms of terrorism, the problem of the bullies running society is really a problem of how much the rest of us are willing to tolerate before we stop them.  And by stop them, I mean a complete federal solution that lays down the law, supports the Constitution and stops this anti-American agenda right NOW.

    Gay activists and their allies use terminology like "civil rights," and "marriage equality" because the issue really isn't whether people accept homosexuals or what God or his followers believe about religious unions, it's whether all Americans are equal under the law.  Tyranny by the majority, freedom from religion, and the pattern of oppression of minorities is what's relevant.  The black civil rights movement would have stagnated without federal support for equal rights.  It took a combination of activists agitating for change, and strong leadership (Eisenhower, Kennedy) setting new direction.  Obama's our new strong leadership, but will not expect political capital on LGBT issues unless the people who voted for him demand it as part of the mandate for Change.  

    So how much more oppression of "the other" will you tolerate and ignore before each of you personally does what it takes to solve this problem?


    The ghost of Rose Bird (none / 0) (#6)
    by oculus on Wed Nov 19, 2008 at 10:43:40 PM EST
    haunts this California Supreme Court.  I hope they remain as couragous as they were in striking the statute.

    T Chris (none / 0) (#7)
    by shoephone on Wed Nov 19, 2008 at 11:42:43 PM EST
    Sorry for (briefly) going off-topic. Did you see this story about a man who won a judgement against the cop who tased him?

    Help me through the logic here... (none / 0) (#10)
    by easilydistracted on Thu Nov 20, 2008 at 07:04:18 AM EST
    First, please do not construe my remarks here as those of a proponent of proposition 8. Had I not moved from So Cal my vote on the proposition would have been a resounding, no. Having said that, it seems to me that the arguments expressed in the previous posts, as sound as they might be, come a little late. I'm certainly no legal expert, but they probably would have worked much better to keep the proposition off the ballot in the first place.  The fact that the proposition was placed on the ballot and remained unchallenged until now, seems to serve as a waiver of all rights to protest the underlying procedural issues of whether it should have even been there. Again, no expert here.            

    Judges are lazy (none / 0) (#12)
    by blueaura on Thu Nov 20, 2008 at 10:51:18 AM EST
    Well, that's not it exactly, but basically courts generally do not take action unless there is a real need. Something has to happen first, and until the proposition passed, there wasn't really anything for them to rule on. I don't think you can file suit on a hypothetical. You need to have standing. It's the same with SCOTUS, which won't rule on a bill in Congress. It has to be passed first, and then challenged by someone with the legal standing to do so.

    I've seen someone somewhere, though maybe not on TL, explain it much better. Hopefully there are some lawyers here who can.


    Pre-election (none / 0) (#14)
    by TChris on Thu Nov 20, 2008 at 12:38:28 PM EST
    attempts to raise this issue in the state supreme court failed.

    Tks (none / 0) (#15)
    by easilydistracted on Thu Nov 20, 2008 at 12:55:56 PM EST
    TChris.  I'll mull it over.