The fight over same-sex marriage in California is headed back to the courts:
LOS ANGELES — The future of same-sex marriage in the Golden State will rest, once again, in the hands of its highest court. But this time, its fate will hinge on a different question: Can a state constitutional ban on same-sex marriage go before voters? Or must it go before the legislature first?
The answer, legal experts say, will determine whether gay rights advocates can overturn Proposition 8, a recently passed ballot measure that overruled a state Supreme Court judgment that legalized same-sex marriage.
Three lawsuits, ready since the initiative was green-lighted for the November ballot, have been filed with the California Supreme Court asking it to stop the state from enforcing the proposition until the court has decided on its constitutionality. The suits aim to undo the measure on grounds that, under the equal protection clause in the state’s constitution, a majority of voters are not allowed to revoke equal rights intended for everybody.
Now, nearly six months after its landmark decision, the California Supreme Court is being asked again to determine the fate of the nearly 18,000 unions made since May, and the possibility of those to come.
And the outcome seems to hinge on how the California Supreme Court interprets an arcane, but important, provision of the state’s Constitution:
“In passing Prop 8, the people of California basically put an asterisk next to the equal protection clause in the constitution,” said William Araiza, a professor at Loyola Law School in Los Angeles. Now, he said, “it fundamentally comes down to whether the court considers this a major change or not a major change.”
Specifically, opponents of Proposition 8 argue that this kind of change is a “revision,” not an “amendment.” The distinction is important, legal experts say, because revisions require two-thirds approval in the legislature and then a popular vote. Amendments can be approved by popular vote only.
If, as opponents say, the court finds that Proposition 8 qualifies as a revision, then the proposition would be found unconstitutional because its proponents would have, in effect, skipped the required legislative step. If the court strikes down the initiative on these grounds, it is not certain the lawmakers would take up the issue again.
If the court sides with Proposition 8 proponents and allows the amendment, the recourse for gay rights activists would be to put the matter to voters again through their own initiative or take the matter to federal court — something most activists are not ready to do, given the current composition of the Supreme Court.
UCLA Law Professor Eugene Volokh thinks that the opponents have Proposition 8 have an uphill battle ahead of them and Kip Esquire seems to agree.
November 11th, 2008 at 7:45 am
This is why our system is so screwed up. Constantly deferring the people’s choice to the frickin courts…..who the hell do they think they are..?? On with the f…in revolution. I am tired of this crap. No more Mr. nice guy for me.
November 11th, 2008 at 7:55 am
Jery,
Why should the majority be able to vote to deny someone their fundamental rights ?
November 11th, 2008 at 12:35 pm
Doug,
The state constitution is the basis the courts use for what rights are protected.
Ultimately, the amendment process is what determines what rights are protected, and how far.
November 11th, 2008 at 12:39 pm
True, but the California Constitution makes a distinction between amendments and revisions.
To the extent that it seeks to change the application of the Equal Protection Clause, there is an argument that Prop. 8 was a revision — meaning that it should have gone through the legislature before being put to the voters.
November 11th, 2008 at 3:34 pm
So according to some, a majority is a mandate and trumps the courts. Can you imaging how long it would have taken for slaves to be freed and for black Americans and other Americans of different skin color to get equal rights? Hell, in some southern states, if it was up to a majority vote, some states may even vote for the stripping of minority rights. Something as fundamental as a right isn’t up for vote and sadly, it takes the courts to act on rights rather than the general public and arguably, quite clearly, California voters don’t have a clue when it comes to this issue. There is arguably a base for study of the effect on society of gay marriage and (drum roll) there is no detectable negative effect. In fact, I believe, though probably not connected, that the divorce rate in Mass. has actually gone DOWN. Huzzah.
This is in an odd way similar to abortion… The more of a push for it to be outlawed, the more abortions there seems to be. With the proliferation of cousiling and pregnacy prevention and awareness, there is a noted drop in abortions. Look at the Clinton years. Abortion fell.
If there is a concern about integrety of marriage, then banning gay marriage is not a good place to start as the only people that want to participate in gay marriage are gay people and you can’t choose your orientation.
November 12th, 2008 at 4:01 pm
Hello my name is Merle Dean Shamblin and I would like to be your new friend. I sure could use somebody to chat with. I am a 47 year old long haul truck driver who currently lives in Duncan Oklahoma. Dec 8th 1960 I was born in Fairview Oklahoma. Moved to Caddo and Washita counties where I attended school at Colony Hydro and Weatherford. My parents Malvin and Wanda Shamblin were cotton and peanut farmers. Dad died in 99 from lung cancer. Graduated from SWOSU with a business degree. My two sisters are LaDonna Hubert and Malva Burrahm. Dennis is my brother. I have been a truck driver for 14 years and have driven 2 million paid miles. I have received many safe driving awards over the years. I am single and have never been married. I have a wide range of interests and am pretty much an open book. Currently I drive a 2006 Freightliner for a major carrier. I dont go to Canada very often. I dont have a dedicated route so I run the entire lower 48. I enjoy reading cinema music sports travel etc. I am gay and versatile.
November 15th, 2008 at 11:12 am
I agree with glasshalffull. If, in fact, there is a concern about the integrity of marriage, banning gay marriage is the most innane place to focus. Seriously, how insecure must one be in his/her “straight” marriage to go the the extreme of criminalizing the marriage of two people who are in love and committed to a future together…even if they are the same gender?
If people are actually so concerned about the integrity of their straight marriages, then perhaps they need to put their efforts (and the excess time and money they have on their hands) into criminalizing divorce. Of course, this would never happen, because people are not all that concerned about preserving the institution of marriage.
Proposition 8 was about hate and repression. It was about forcing religious views into the lives of people and into the legistative process. More importantly, and sadly, it was about fear.
January 16th, 2009 at 6:57 am
No Eric, you don’t, and passing around a fancy resume doesn’t mean crap to me, especially given the nonsense I’ve seen from you over the past several years.