What you are failing to account for, let alone address, is
Originally Posted by celticlord
Your opinion as to whether the proposition creates special classes is irrelevant. Your opinion as to whether denying existing rights to a specific group of people constitutes a revision or an amendment would be relevant.
- The assertion by anti-prop 8 people that the proposition makes a fundamental change to the constitution.
- If it does so, then the California Constitution (the law) requires that the 2/3 majority of the legislature of California approve a constitution convention to consider the change to the California Constitution, which we can all agree did not happen.
- Therefore, the only way to uphold the rule of law, is to require that prop 8 undergo consideration for a vote for approval in the California Legislature, which, if performed will either be rejected for a vote or will otherwise fail to receive the necessary votes, and the amendment will be invalidated - based entirely on the laws of California.
What they are saying here is that changes to existing rights which profoundly affect lives of people depending on those rights is a revision, not an amendment. Address that issue, and you will have spoken to the crux of the entire matter. On a side note, it is no use bringing up the issue that the womans right to free speech would be protected by the US Constitution, since that is also irrelevant: The question as to whether the attempt to remove her rights was a revision would remain, regardless.
If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw - it removes a protected constitutional right - here, the right to marry - not from all Californians, but just from one group of us. That's too big a change in the principles of our constitution to be made just by a bare majority of voters.
Legal Challenges Filed Against Prop 8 | PEEK | AlterNet
The relevant portion of the law is:
If the outcome of the case is that Prop 8 is merely an amendment, then the CA Constitution will be fundamentally flawed. There will be no real guarantee of any rights within that state Constitution: All rights will be subject to a simple majority vote, which is no guarantee of rights at all.
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION
SEC. 2. The Legislature by rollcall vote entered in the journal,
two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to
revise the Constitution. If the majority vote yes on that question,
within 6 months the Legislature shall provide for the convention.
Delegates to a constitutional convention shall be voters elected from districts as nearly equal in population as may be practicable.
The Proposition 8 opponents recognized that their argument was a "novel" theory, but argued that the court had never had the opportunity to consider such a case in the past. "A guarantee of equality that is subject to exceptions from the majority is no guarantee at all," argued Therese Stewart, on behalf of the city of San Francisco. "Our founders would not have allowed this to be done by amendment," said Stewart, arguing that Proposition 8 has to be interpreted as a revision because protection of minority rights from amendment by a simple majority is part of the structure embedded in the California Constitution. Justice Carlos Moreno responded to this argument, pointing out that prior case law had never held that the distinction between "revision" and "amendment" could not be expanded beyond the court's prior definition. So, either changing rights is an amendment, and rights can therefore be rescinded by a simple majority of voters, or changing rights is a revision, and as such requires a convention.