News Flash on Prop 8



Prop 8 protest in Eureka - photo by Kim Sallaway

Prop 8 protest in Eureka - photo by Kim Sallaway

The Sacramento Bee reports that the California Supreme Court will consider issues brought by those opposed to Proposition 8 .

They'll be looking at three things:

Whether Prop 8 is a revision of the California Constitution when it should have been an amendment. If it's a revision, it's invalid.

Does it violate the separation-of-powers doctrine?

And last, if the Prop passes muster and stands, what about the marriages that took place this year? Are they now null and void or do they stand?

The plan is to get on it ASAP. Oral argument may begin as soon as March 2009. In the meantime, Prop 8 is in effect, marriage is strictly man/woman, so no more same-sex marriages for now.

More details on the case can be found on the Court's site.

Not all Prop 8 supporters are happy that the court is taking this up (as you will see if you read the Bee story or see below), but you would not know that from this press release from :

Sacramento, CA – The official proponents of Proposition 8 and – Yes on 8, the campaign committee responsible for its enactment by voters today said it is "profoundly gratified" that the California Supreme Court granted all their requests by agreeing to accept original jurisdiction of three cases challenging the measure’s validity,  granted their request to intervene in the cases as Real Parties in Interest, denied the request of others to delay implementation of Proposition 8, and refused to allow outside groups to directly participate in the litigation.

"This is a great day for the rule of law and the voters of California," said General Counsel Andy Pugno. "This order means that voters will get their day in court and ensures that voters will have a vigorous defense of Proposition 8 before the California Supreme Court. We are profoundly gratified with the Court’s order and are confident that Proposition 8 will be upheld."

The Supreme Court has accepted original jurisdiction of three cases that claim Proposition 8 is a constitutional revision rather than a constitutional amendment and thus should not have been presented to voters. The Court’s order accepting the cases, as was requests by the proponents of Proposition 8, will provide a ruling on Prop 8’s validity in a matter of months, rather than potentially years of protracted litigation.

Perhaps the most significant part of the Supreme Court’s order is to deny the requests of the plaintiffs in the three cases to stay the implementation of Proposition 8. This means that, once the vote is certified, Proposition 8 will take effect as of midnight, November 5th. The Constitution of California has been amended to provide that only marriage between a man and a woman will be valid or recognized in California.

"The California Supreme Court is recognizing the People’s vote on Proposition 8 and is allowing the measure to go into full effect," Pugno said. "This is a great legal victory for voters."

Also of key significance, the Court has granted the request of the proponents of the initiative and their campaign committee to intervene in the litigation as Real Parties in Interests. This ruling grants the backers of Prop. 8 full legal standing to submit written arguments and appear in oral argument before the Court.

"Granting the backers of Prop. 8 intervention in these cases means that voters can be certain that there will be a thorough and vigorous defense of Prop. 8, "Pugno said. "Voters will not have to solely depend on Attorney General Jerry Brown to defend the measure. Since the attorney general was an active opponent of Proposition 8, we did not want the fate of the measure to rest in his defense of it."

The Court also denied the request of unrelated parties, including the Campaign for California Families (CCF), to intervene in the litigation. The proponents of Prop. 8 had asked the Court to deny CCF’s proposed intervention.

The cases seeking to invalidate Proposition 8 are Strauss v. Horton, S168047 ; City and County of San Francisco v. Horton, S168078; and Tyler v. State of California, S168066.
Equality California - the No on 8 side offers this analysis:

Today the California Supreme Court granted review in the legal challenges to Proposition 8, which passed by a narrow margin of 52 percent on November 4. In an order issued today, the Court agreed to hear the case and set an expedited briefing schedule. The Court also denied an immediate stay.

On November 5, 2008, the National Center for Lesbian Rights, the American Civil Liberties Union, and Lambda Legal filed a lawsuit challenging the validity of Proposition 8 in the California Supreme Court on behalf of six couples and Equality California. The City of San Francisco, joined by the City of Los Angeles, the County of Los Angeles, and Santa Clara County, filed a similar challenge, as did a private attorney in Los Angeles.

The lawsuits allege that, on its face, Proposition 8 is an improper revision rather than an amendment of the California Constitution because, in its very title, which was "Eliminates the right to marry for same-sex couples," the initiative eliminated an existing right only for a targeted minority. If permitted to stand, Proposition 8 would be the first time an initiative has successfully been used to change the California Constitution to take way an existing right only for a particular group. Such a change would defeat the very purpose of a constitution and fundamentally alter the role of the courts in protecting minority rights. According to the California Constitution, such a serious revision of our state Constitution cannot be enacted through a simple majority vote, but must first be approved by two-thirds of the Legislature.

Since the three lawsuits submitted on November 5, three other lawsuits challenging Proposition 8 have been filed. In a petition filed on November 14, 2008, leading African American, Latino, and Asian American groups argued that Proposition 8 threatens the equal protection rights of all Californians.

On November 17, 2008, the California Council of Churches and other religious leaders and faith organizations representing millions of members statewide, also filed a petition asserting that Proposition 8 poses a severe threat to the guarantee of equal protection for all, and was not enacted through the constitutionally required process for such a dramatic change to the California Constitution. On the same day, prominent California women’s rights organizations filed a petition asking the Court to invalidate Proposition 8 because of its potentially disastrous implications for women and other groups that face discrimination.

In May of 2008, the California Supreme Court held that barring same-sex couples from marriage violates the equal protection clause of the California Constitution and violates the fundamental right to marry. Proposition 8 would completely eliminate the right to marry only for same-sex couples. No other initiative has ever successfully changed the California Constitution to take away a right only from a targeted minority group.

Over the past 100 years, the California Supreme Court has heard nine cases challenging either legislative enactments or initiatives as invalid revisions of the California Constitution. In three of those cases, the Court invalidated those measures.
And here's what CCF has to say:

In response to today's decision by the California Supreme Court to hear the challenges to Proposition 8, the California Marriage Amendment, Randy Thomasson, president of Campaign for Children and Families , a leading California-based pro-family organization, issued the following statement:

"It's unfortunate that the judges are giving time to the mushy, subjective arguments of homosexual activists who reject the clear reading of the constitution and the clear reading of Proposition 8. If the court disobeys the constitution by voiding Prop. 8, it will ignite a voter revolt. It will also threaten the validity of all future constitutional amendments.

"The court is playing with fire by threatening to destroy the people's vote on marriage. The California Constitution clearly says that the voters have the right to alter the highest law of the land. It's the beauty of the American system of government. The four Supreme Court justices who unconstitutionally invented homosexual 'marriages' -- Ron George, Joyce Kennard, Kathryn Werdegar and Carlos Moreno -- seem to be ignoring the fact that the people get the last word, not the judges.

"The clear reading of the constitution, as well as California's legal and legislative history, tells us there is a world of difference between a constitutional amendment and a constitutional revision. Proposition 8 is a single-subject, voter-initiated amendment, not a legislature-initiated, multi-issue, whole-scale revision that alters many sections of the state constitution.

"If Prop. 8 gutted the constitution, why is it only one subject in one section of the constitution? If Prop. 8 doesn't stand, then our constitution doesn't mean anything, the people's vote doesn't mean anything, marriage has been utterly disrespected, and judges lied when they swore to uphold the constitution. Prop. 8 must stand, because the constitution is above the judges, not the other way around.

"Marriage is, was, and should always remain a natural, beautiful relationship between a husband and a wife. Marriage between a man and a woman is an essential, beneficial role model for children to emulate.

"Fortunately, the California Constitution tells us 'all political power is inherent in the people' and that 'they have the right to alter or reform it when the public good may require'" ( California Constitution, Article II, Section 1 ).

Explaining the clear distinction between an amendment and a revision is University of California, Berkeley Department of Public Science Chairman Emeritus Dr. Eugene C. Lee , who, in 1991, wrote:

Specific changes to the California constitution may be proposed by amendment. Substantial changes may be proposed by a constitutional convention or by the legislature as constitutional revisions. Regardless of their origin, all changes must be approved by a majority of the electorate voting on the issue.

Legislative amendments, the method most commonly used, require a two-thirds vote in each house of the legislature. Initiative amendments may be placed on the ballot by a petition of registered voters equal in number to 8 percent of the total vote cast in the preceding gubernatorial election. By explicit language in the constitution concerning initiatives and by court interpretation with respect to measures arising in the legislature, amendments are required to be limited in scope. As far back as 1894, the California Supreme Court distinguished between a revision of the constitution and a mere amendment thereof (Livermore v. Waite, 102 Cal. 113). As reiterated in 1978, the court held that a revision referred to a "substantial alteration of the entire constitution, rather than to a less extensive change in one or more of its provisions" (Amador Valley Joint Union High School District v. State Board of Equalization, 22 Cal.3d 208).

Whether in the public and explosive setting of a constitutional convention, as in 1879, or in the relatively calm, almost academic environment of a revision commission some 90 years later, the revision process is intensely political....To be successful, revision requires gubernatorial as well as legislative leadership. Given the requirement of a two-thirds legislative vote, revision involves negotiation and compromise. The agreement implied in an extraordinary legislative vote does not guarantee popular support. Thus, an effective political campaign is essential. But even with a good campaign, success at the polls is not assured. Constitutional revision can be a high-risk endeavor and will continue to be so. These conclusions should be taken seriously in any legislative consideration of constitutional revisions. In addressing the current imperfections of the California constitution, the costs and risks of revision must be weighed carefully against the alternative of carefully targeted amendments.
-- Eugene C. Lee, "The Revision of California's Constitution," April 1991, commissioned by the California Policy Seminar, University of California, Berkeley


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