Breaking News: Cal. Supremes Take Prop. 8 Cases
The California Supreme Court has agreed to take cases challenging Proposition 8. The Court also announced it will not stay the proposition pending a decision. (Sorry, Gavin.)
The Court will address three questions:
My gut sense is that the answers to the first two questions are, "No." That is because the Court has construed "revision" quite narrowly in the past, and because it has held that the separation of powers provision is more tolerant and flexible than its actual language implies. Question number three is a doozie.
The Court will address three questions:
- Is Prop 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
- Does Prop 8 violate the separation-of-powers doctrine under the California Constitution?
- If Prop 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Prop 8?
My gut sense is that the answers to the first two questions are, "No." That is because the Court has construed "revision" quite narrowly in the past, and because it has held that the separation of powers provision is more tolerant and flexible than its actual language implies. Question number three is a doozie.
Labels: Court Cases, Prop. 8
posted by Patrick Bageant at 2:32 PM
15 Comments:
Speaking out of an orifice that isn't located above my neck, I suspect that they'll hold that it is a revision so that they don't have to address issue 3. Issue 3 is a douzie, and one that I wouldn't want to touch with a 10,000 foot pole.
Although if they do rule that Prop 8 is valid, the mental gymnastics necessary to justify either stripping someone's marriage away or creating a distinct class of people may be amusing in an abstract way but tragic on a personal level.
Question 3 is a doozie.
I'm not trained in the law at all, but I find this a curious assertion. If marriage is a civil contract, and the same-sex marriage contracts were valid at the time they were made how is it possible for the state to retroactively invalidate them? Isn't there a very deep-seated precedent in the law (perhaps in common law as we practice it if nowhere else, but as I said, I don't have the training to know) that you can't arbitrarily nullify valid contracts after the fact (or some such to that effect)?
Yes, and yes.
Two big problems, though. First, enforcing prop 8 means dividing same-sex couples into two groups (those married prior to passage, and those "united" under a civil union after). What basis can that distinction have, especially now that sexual preference is a suspect class?
Second, prop 8 says that the state shall only recognize marriages between a man and a woman. How can the state justify continuing to recognize the pre-amendment same-sex marriages in light of that language? The state can't take away their rights (and parties will argue that the label "married"is a right) without due process, but at the same time, the state can't recognize them without violating the amendment. Hence the doozie.
. . . and don't even get me started on the polygamy problem.
Why is there a polygamy problem, Patrick?
Can someone give me a short version of the separation-of-powers issue involved here?
This is the argument, or at least I think this is the argument:
Sexual orientation is a suspect class, and marriage is a fundamental right.
The powers of the California Government are either Legislative, Judicial, or Executive. That's an exhaustive list.
If the ballot initiative process is an exercise of governmental power, it must be Legislative.
The usual presumption of Legislative competence does not necessarily apply to "fundamental rights" and "suspect classes," because it is the responsibility of the judiciary to enforce (by way of heightened scrutiny) principles like equal protection.
Proposition 8, which is essentially Legislative, infringes on a fundamental right by circumventing heightened scrutiny. It does so by restricting (along suspect lines) the class of people who can be married.
It is therefore a Legislative infringement on the power of the Judiciary to enforce equal protection, and to protect fundamental rights and suspect classes.
At any rate, that's the argument as I understand it. Unfortunately, I don't think it is very persuasive.
A reasonable interpretation of Prop. 8 is that prior gay marriages are not invalidated per se, but are no longer recognized by or valid within California.
If so, then these Californian marriages would be recognizable in other states, but not their home state.
Weird!
Incidentally, oddjob, there's also a precedent for states to refuse to enforce or recognize otherwise legal contracts on public policy grounds, which is distinct from holding that there was never a valid contract at the beginning.
If so, then these Californian marriages would be recognizable in other states, but not their home state.
But for DOMA.
(I get it though - they could be recognized in other states, but it is not necessary that they be recognized. I just wanted to clarify.)
I'll admit that I have no idea how the supreme court will come down on this and little knowledge of the specifics of prior court decisions in this area, but it seems to me there is just something fundamentally wrong about this process.
I'm not saying that because I'm in favor of gay marriage. I'm saying, regardless of whether you are for or against marriage, doesn't it seem strange that a simple majority can pass a law, that law can be invalidated by the Court as constitutionally invalid, and then the SAME SIMPLE MAJORITY can simply change the constitution to validate the law? If that process is upheld, it reduces the whole judiciary to red tape, to a mouthpiece that can do nothing more than say "Uh, you probably shouldn't do this."
I mean the constitution is supposed to be more sacred than, say, the tax code, right? So why can you use the exact same process to change both, even AFTER a court has said the change violates equal protection.
It just seems wrong, not to mention dangerous. It gives a simple majority virtually unchecked power. Speaking of, I find it HILARIOUS that the argument most religions used to justify their vote on Prop 8 was that "it protects religious freedom." I can think of nothing MORE DANGEROUS to religious freedoms than a depowered court and complete tyranny of the majority. I mean, not to single anyone out, but there are a lot more non-Mormons than Mormons out there, or non-Catholics than Catholics. If this process is upheld, what is to stop a slim majority of Evangelicals or even Atheists from declaring ANY religious process constitutionally invalid? The First Amendment? Not if we can change it with a ballot initiative.
I don't know if I am making a "separation of powers" argument here or not, honestly, but I think the court should do what it can to find a reason to invalidate this Proposition, not just because I support gay marriage, but because I think judicial power is important.
Also, if you want to hear everything I just said put much more succinctly, read this:
http://www.csmonitor.com/2008/1114/p09s01-coop.html
Heard Erwin Chemerinsky on NPR today. He said "there is very little law" on what constitutes a revision or an amendment and seemed to suggest it's something the court is eager to make clear.
Not sure if that comports with Patrick's read on the situation, and hoping it doesn't. Don't crush my dreams, Pat!
Cravath to . . . $17,500 can we discuss???
The prospects of the Court ruling Prop 8 a revision, and not an amendment, appear slim. I'm basing this not on the state of the law (I still believe stripping constitutional rights is fundamentally different from, say, term limits or property tax) but rather on the fact that the dissenter to granting review was Justice Kennard who was in the majority in the same-sex marriage decision. Unless the remaining majority justices can convince Justice Kennard that her misgivings on even hearing this appeal are wrong, or they can get another justice to join a majority, then I see no support for overturning the "will of the people" no matter how wrongheaded.
Stick it in your ear 5:28
The pro prop 8 side is in deep denial of the vulnerability of prop 8. Consider having a read of the 153 page ruling that legalized gay marriage. Key words in the prop 8, Supreme Court argument will be "sexual orientation," "legally protected class under the California constitution," "judicial scrutiny." These words have significant meaning in the 153 page ruling. These key words are directly effected by the amendment/revision argument, and the separation of powers argument. I can't possibly imagine prop 8 withstanding judicial scrutiny.
On Kennard, the fact that she didn't sign onto the document accepting the prop 8 challenge doesn't concern me. The remaining 7 justices who did sign onto the document did so without prejudice. Kennard dissented without prejudice too!
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