View Poll Results: Will the CA courts overturn Prop 8?

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  • Yes

    16 47.06%
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    18 52.94%
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Thread: Will CA do the right thing and overturn Prop 8?

  1. #31
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    Re: Will CA do the right thing and overturn Prop 8?

    Quote Originally Posted by celticlord View Post
    The California Constitution with a ban on gay marriage is in line with the US Constitution.

    The California Constitution without a ban on gay marriage is in line with the US Constitution.

    The US Constitution articulates neither a right to gay marriage nor a protection of that right. The matter is properly left to the states, and the State of California amended their constitution to bad gay marriage. The US Constitution, Amendment 10, gives them the power to do this.

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    Re: Will CA do the right thing and overturn Prop 8?

    Quote Originally Posted by RightinNYC View Post
    The question isn't about whether the amendment violates the constitution, it's about whether the process in which the amendment was passed was the proper way to amend the constitution.
    If the process was flawed, then the proper course would have been to challenge its inclusion on the ballot. Was such a challenge filed then?

  3. #33
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    Re: Will CA do the right thing and overturn Prop 8?

    [ame=http://en.wikipedia.org/wiki/California_constitution]California Constitution - Wikipedia, the free encyclopedia[/ame]

    Read the article at the bottom.

    Essentially, any ballot initiative that fundamentally revises the constitution requires that 2/3 of the legislature vote in favor. A fundamental revision is when a proposition changes already existing parts of the constitution.

    The question that the courts are going to decide is if Prop 8 shall be defined as a "fundamental revision" of the California Constitution.

    In my opinion, the court will have to determine that Prop 8 be considered a fundamental revision, as it conflicts with Article 1 Section 7 B.

    A citizen or class of citizens may not be granted privileges
    or immunities not granted on the same terms to all citizens.
    Privileges or immunities granted by the Legislature may be altered or
    revoked.
    Prop 8 would create the situation of certain classes of citizens have privileges that other groups are not, thereby violating that section.

  4. #34
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    Re: Will CA do the right thing and overturn Prop 8?

    Quote Originally Posted by celticlord View Post
    If the process was flawed, then the proper course would have been to challenge its inclusion on the ballot. Was such a challenge filed then?
    Read rathi's post directly above mine - it explains what the question is.

    Such a challenge could not have been filed before it was passed, as there was no standing.
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    Re: Will CA do the right thing and overturn Prop 8?

    Quote Originally Posted by RightinNYC View Post
    Read rathi's post directly above mine - it explains what the question is.

    Such a challenge could not have been filed before it was passed, as there was no standing.
    California has differentiated between amendment and revision for over a century. That is a given. However, that differentiation, and the controlling standards applied by the California Supreme Court are also a given. Also a given is that the constitutional impact of Proposition 8 (or any ballot initiative) is directly derived from the particular language used; if the language is so sweeping in nature as to amount to a revision rather than an amendment, the articulated standards of the California Supreme Court would render the initiative invalid.

    It necessarily follows that the invalidity arises from the process rather than the content of the initiative. The differentiation of amendment versus revision is a procedural distinction that stands wholly independent of the matter presented to the electorate; that differentiation is entirely a matter of the process by which the initiative comes to be put to the electorate. Revisions must first be passed by 2/3 vote of both houses of the California Legislature. If Proposition 8 were in effect a revision rather than an amendment, the lack of prior passage by the legislature would stand as an automatic invalidation of the measure, and thus would be more than sufficient justification for striking it from the ballot. The California case Amador Valley Joint Union High School District v. State Board of Equalization supports this:
    Because a revision may not be achieved through the initiative process, petitioners' first contention strikes at the very validity of article XIII A in its inception and in its entirety. Were we to conclude that the Proposition 13 initiative constituted a revision not an amendment, that would end our inquiry; the initiative would be invalid for its failure to meet the constitutional requirements of a revision.
    The text of Proposition 8 was known well before the election; claiming it as a revision rather than an amendment would be asserting a defect of process, and, with the standards elucidated in Amador I do not see how any registered voter in California could possibly lack standing to challenge that process on the basis of a presumed defect.

    Edited to add:
    A bit further research shows that the California Supreme Court denied a pre-election petition to remove Proposition 8 from the ballot on these grounds, but apparently did so without comment. While it may be fairly argued that the Court was withholding its opinion pending the electoral outcome (and any post-electoral petitions filed with the courts), its reluctance to pre-adjudicate the matter at a minimum suggests the issue of revision versus amendment is not so immediately obvious as to intervene in the initiative process.
    Last edited by celticlord; 05-24-09 at 06:15 PM.

  6. #36
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    Re: Will CA do the right thing and overturn Prop 8?

    Quote Originally Posted by celticlord View Post
    California has differentiated between amendment and revision for over a century. That is a given. However, that differentiation, and the controlling standards applied by the California Supreme Court are also a given. Also a given is that the constitutional impact of Proposition 8 (or any ballot initiative) is directly derived from the particular language used; if the language is so sweeping in nature as to amount to a revision rather than an amendment, the articulated standards of the California Supreme Court would render the initiative invalid.

    It necessarily follows that the invalidity arises from the process rather than the content of the initiative. The differentiation of amendment versus revision is a procedural distinction that stands wholly independent of the matter presented to the electorate; that differentiation is entirely a matter of the process by which the initiative comes to be put to the electorate. Revisions must first be passed by 2/3 vote of both houses of the California Legislature. If Proposition 8 were in effect a revision rather than an amendment, the lack of prior passage by the legislature would stand as an automatic invalidation of the measure, and thus would be more than sufficient justification for striking it from the ballot. The California case Amador Valley Joint Union High School District v. State Board of Equalization supports this:
    The text of Proposition 8 was known well before the election; claiming it as a revision rather than an amendment would be asserting a defect of process, and, with the standards elucidated in Amador I do not see how any registered voter in California could possibly lack standing to challenge that process on the basis of a presumed defect.
    You're right - as it turns out, the court said they did have standing, but rejected the claim anyways.

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    Re: Will CA do the right thing and overturn Prop 8?

    Quote Originally Posted by rathi View Post
    In my opinion, the court will have to determine that Prop 8 be considered a fundamental revision, as it conflicts with Article 1 Section 7 B.
    The Amador and McFadden rulings would appear to argue otherwise.

    Amador frames the issue thus:
    We think it significant that prior to 1962 a constitutional revision could be accomplished only by the elaborate procedure of the convening of, and action by, a constitutional convention (art. XVIII, § 2). This fact suggests that the term "revision" in section XVIII originally was intended to refer to a substantial alteration of the entire Constitution, rather than to a less extensive change in one or more of its provisions. Many years ago, in Livermore v. Waite (1894) 102 Cal. 113, 118-119 [36 P. 424], we described the fundamental distinction between revision and amendment as follows: "The very term 'constitution' implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term 'amendment' implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed."
    The nature of a constitutional revision, as it pertains to California, is that it is broad in scope and impact.

    Amador does acknowledge that a revision may be of a qualitative nature, and is not solely dependent on the length of the initiative's language, but even in a qualitative sense, it suggests that to be revisory, an initiative's impact must touch several parts of the constitution to a significant degree:

    Taken together our Livermore and McFadden decisions mandate that our analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the "substantial entirety" of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, the parties herein appear to agree that an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.
    This is a refinement of the standards articulated in McFadden, which portrays a revision as explicitly touching at length several parts of the constitution:
    Our review of the subjects covered by the measure and of its effect on the totality of our plan of government as now constituted does not purport to be exhaustive. It is amply sufficient, however, to demonstrate the wide and diverse range of subject matters proposed to be voted upon, and the revisional effect which it would necessarily have on our basic plan of government. The proposal is offered as a single amendment but it obviously is multifarious. It does not give the people an opportunity to express approval or disapproval severally as to each major change suggested; rather does it, apparently, have the purpose of aggregating for the measure the favorable votes from electors of many suasions who, wanting strongly enough any one or more propositions offered, might grasp at that which they want, tacitly accepting the remainder. Minorities favoring each proposition severally might, thus aggregated, adopt all. Such an appeal might well be proper in voting on a revised constitution, proposed under the safeguards provided for such a procedure, but it goes beyond the legitimate scope of a single amendatory article. There is in the measure itself no attempt to enumerate the various and many articles and sections of our present Constitution which would be affected, altered, replaced, or repealed. It purports only to add one new article but its framers found it necessary to include the omnibus provision (§ XII, subdiv. (7)) that "If any section, subsection, sentence, clause or phrase of the constitution is in conflict with any of the provisions of this article, such section, subsection, sentence, clause or phrase is to the extent of such conflict hereby repealed."
    Proposition 8 appeared on the ballot as follows:
    This initiative measure is submitted to the people in accordance with the
    provisions of Article II, Section 8, of the California Constitution.
    This initiative measure expressly amends the California Constitution by
    adding a section thereto; therefore, new provisions proposed to be added are
    printed in italic type to indicate that they are new.
    SECTION 1. Title
    This measure shall be known and may be cited as the “California Marriage
    Protection Act.”
    SECTION 2. Section 7.5 is added to Article I of the California Constitution,
    to read:
    SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.
    The addition of a new section in and of itself would not rise to the level of revision under the Amador and McFadden standards. Proposition 8 does not explicitly alter any other section of the California Constitution.

    The proposition is extremely brief--a mere 14 words of statutory language. Per the Amador and McFadden standards, the brevity of the initiative suggests the initiative is indeed the amendment it purports to be, rather than the revision some claim it to be.

    The only avenue I can see to arguing the Proposition to be a revision as opposed to an amendment is that the impact of the amendment is sweeping and overbroad, and thus constitutes a revision rather than an amendment. However, the only article of the California Constitution either directly or indirectly affected by the statutory language is Article I. The remainder of the Constitution is not altered by so much as a comma by the inclusion of the language of Proposition 8--indeed, the word "marriage" appears four times in the Constitution (twice in Article I §25 and twice in Article 13A §2). Proposition 8 does not alter the property rights elucidated in Article I §25 nor the interpretations of the terms "purchased" and "change of ownership" elucidated in Article 13A §2. I do not see the contention of conflict with Article I §7(b) as being persuasive, because the statutory language of Proposition 8 does not apply unequally on the basis of race, ethnicity, nor even sexual orientation.

    From a constitutional perspective, the statutory language of Proposition 8 appears to be concise in form and narrow in scope and impact, and thus fits the applicable standards for standing as an amendment rather than a revision to the California Constitution.

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    Re: Will CA do the right thing and overturn Prop 8?

    Quote Originally Posted by celticlord View Post
    Proposition 8 amended the California State Constitution. It cannot be overturned as being unconstitutional. If the courts overturn, they are rewriting the constitution; that is beyond the competence of every court.
    That's a stretch in logic. If the amendment is counter to previous parts of the constitution, it can be ruled unconstitutional and thrown out. I hope they do toss the abomination out.

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    Re: Will CA do the right thing and overturn Prop 8?

    Quote Originally Posted by RightinNYC View Post
    You're right - as it turns out, the court said they did have standing, but rejected the claim anyways.

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    Actually, we are both right--some further reading of California Supreme Court rulings indicates a general reluctance to rule on constitutional validity until after an election. The governing court language appears to be Brosnahan v Eu:

    As we have frequently observed, it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity.

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    Re: Will CA do the right thing and overturn Prop 8?

    Quote Originally Posted by rathi View Post
    California Constitution - Wikipedia, the free encyclopedia

    Read the article at the bottom.

    Essentially, any ballot initiative that fundamentally revises the constitution requires that 2/3 of the legislature vote in favor. A fundamental revision is when a proposition changes already existing parts of the constitution.

    The question that the courts are going to decide is if Prop 8 shall be defined as a "fundamental revision" of the California Constitution.

    In my opinion, the court will have to determine that Prop 8 be considered a fundamental revision, as it conflicts with Article 1 Section 7 B.



    Prop 8 would create the situation of certain classes of citizens have privileges that other groups are not, thereby violating that section.

    Thank you for finally bringing up why prop 8 may not have been properly enacted. The rule of law will be upheld when prop 8 is overturned.

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