Forgive one for disagreeing with the ACLU’s most recent legal challenge to California’s propostion limiting marriage to a union between a man and a woman.
The San Francisco Chronicle reports that suit has already been filed by the ACLU and others to block Proposition 8 from taking effect.
The suit is filed on the ground that, because the proposition would so fundamentally change the California Constitution, by taking away the rights of a minority group, that the proposition is no less than a constitutional revision requiring approval of the legislature.
Or, as the Chronicle puts it,
The suit argued that Prop. 8 would change the California Constitution in such fundamental ways – taking important rights away from a minority group – that it amounted to a constitutional revision, which requires approval by the Legislature before being submitted to the voters.
Forgive my confusion, but I have yet to see a copy of the pleading, but it is difficult to comprehend that indeed is the sum and substance of the legal challenge to be waged.
I do not pretend to be a constitutional scholar or to have done more than rarely touched on constitutional principals in the most mundane, low profile matters, but it seems that the above argument conceeds that were the legislature could constitutionally enact law identical to Proposition 8. I cannot agree.
I do agree that the ACLU and co-litigants should raise all challenges to the proposition and that the argument that a fundamental constitutional revision is well put. That, however, does not mean that the Legislature has the power to revise the constitution so as to deny fundamental rights and liberties.
I acknowledge the strength and merit of the constituional revision argument, as is well explained by Kevin Norte of the Los Angeles Metropolitan News-Enterprise, but it falls short.
As stated by the Legislative Analyst in the states Official Voter Information Guide,
In May 2008, the California Supreme Court ruled that the statute enacted by Proposition 22 and other statutes that limit marriage to a relationship between a man and a woman violated the equal protection clause of the California Constitution.
To empower the Legislature to pass constitutional revisions is one thing; to pass revisions in denial of equal protection is quire another.
I simply do not see how the Legislature could validly revise the California Constitution to deny equal protection to all, which is exactly what would result. See the May 15, 2008, California Supreme Court decision, In Re Marriage Cases, which is here found online.
Although our state Constitution does not contain any explicit reference to a “right to marry,” past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution…. In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.
It seems patent that the argument should be made that even the Legislature cannot deny the equal protection guaranteed by the California Constitution in Article One, Section 7(a) of the Declaration of Rights.
A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws;
One should also argue that it is an ex post facto law, prohibited by Section 9 of Article One of the Declaration of Rights of the California Constitution:
A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.
Proposition 8 invalidates same sex marriages entered into, prior to the proposition’s passage, in California or other places, and that is the classic definition of an ex post facto law.
Lastly, and on a more personal note, I would like to say that I have been happily married for over 25 years and that we have two wonderful children. While I can have some empathy with those fearing that same sex marriage will somehow harm the “institution of marriage”, I fear a great deal more harm is done to those that would be denied the right to enter into marriage.
I also gave a great deal of thought to the historic argument; that marriage has always been traditionally limited to members of the opposite sex. Assuming that to be true, and disregarding exceptions, that does not make it right.
Slavery was a time honored tradition here and in many countries. That does not mean it was right.
Filed under: Proposition 8, law | Tagged: ACLU, American Civil Liberties Union, California Constitution, Decalartion of Rights, Equal Protection, ex post facto, gay, In Re Marriage Cases, Lamda Legal, lesbian, marriage, National Center for Lesbian Rights, proposition 8, propostion 22, same sex
You need to start with an understanding of the Supreme Court’s original ruling:
“We conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.”
The question becomes, given the SCOC’s ruling, can a state initiative abrogate a fundamental right such as the free speech or even something like miscegenation? Can the voters by a majority vote change a fundamental right like that with a simple majority? That’s where the challenge comes from.
I wish I could agree with you as to what the Court has said and what are the issues to be decided.
I do not see where the passage you quote provides that the use of the name “marriage” is part of the core set of substantive legal rights and attributes . . . that are so intgegral to . . . .
At page 8, the majority opinion makes clear the fact that it is not deciding that issue. ” We need not decide in this case whether the name “marriage” is invariably
a core element of the state constitutional right to marry.”
The argument being made by ACLU seems to acknowledge that the issue was never deiced in the Marriage Cases, since it would then be arguing that even the Legislature couldn’t “eliminate or abrogate” those rights “that are so integral to an individual’s libery and autonomy.”
Had the SCOC so ruled, I would think it would have issued the stay on Nov 5.
I agree and am troubled with you. I can’t see how an inalenable right of Liberty can be alienated by either a Legislative act or by intiative.
As for that quote from p. 8, I wish it was clearer as to whether it is speaking of abrogation by the Legislature under any process or just the process where the it is sent to the people for a vote as opposed to a Constitutional convention. I think it should be ingterpreted as prohibiting the abrogation of a core set of fundamental rights by the Legislature , since an instance in which following a 2/3 Legislative approval a matter is referred to a vote of the electors is not part of the intitiative process. The intitiative process being by definition one in which legislative action is intitiated by the People and not the Legislature.
If the Court had the votes to decide the issue of using the name, I wonder why it did not. Sure, it could have deferred ruling in hopes that the outcome of 8 would have avoided over ruling the voters and that the Court is ready to do that now that the matter is fully ripe. Then it may be that they do not have the votes.
Regardless of the arguments that have already been made, Proposition 8 violates the 14th Amendment to the United States Constitution:
“… No State shall make or enforce any law which shall abridge the privileges (emphasis added) or immunities of citizens of the United States..”
Notice that there is nothing about “rights”. The exact wording is “privileges”. The argument that marriage is a “right” is a moot point. It is something afforded to straight couples but not gay couples. That is a violation of the 14th Amendment, which was ratified by California in 1959.
The underlying issue has nothing to do with gay marriage. It is whether a state (even by popular vote) can pass a law that limits the privileges of a select group of citizens.
jaredude,
I don’t think we want to get into whether or not a prvilege or immunty of a citinzenn of the Untited States has been abridged, as I understand that Federao law provides that marriage is between a man and a woman.
For the time being, the postiton may be to argue that the State can afford more protections, just not less, than the Federal Government.
While the DOMA is a federal law, the US Supreme Court has yet to accept any challenge as to whether it is constitutional or not. This may be the case that brings this issue to be heard by the Court.
Certainly, every resource should be exhausted in the state of California before things end up in the US Supreme Court. California’s Supreme Court has already ruled that the CA DOMA is unconstitutional. They are going to do the same thing with Prop 8. Yes, it was a constitutional amendment, but the CA Supreme Court has already ruled that it goes against equal protection laws. CA ratified the 14th Amendment with a 2/3 majority vote (making it California law) which I understand to mean outweighs the simple majority vote received by Prop 8 this year.
I think this is a very sticky situation because we have a Supreme Court that is in favor of allowing gay marriage and a majority (barely) of voters who don’t want to allow gay marriage. It will be interesting to watch the legal challenges over the next year.
jaredude,
I should know more about the history of this, but I just don’t.
I can understand why one would think that prop 8 has already been declared to be against equal protection laws, but that is not exactly what I understand to have occurred.
In the Marriage Cases, the SCOC ruled on the constitutionality of statutes passed by Prop 22. The language was nearly the same as 8, with a major difference. 22 enacted statutes, while 8 changes the Calif Constitution.
The remedy in the Marriage Cases was that the one of two statutes enacted by 22 , section 308.5 was stricken and the other, section 300 is understood to permit marriage of opposite sex and same sex couples.
That said, I hope the following from the Marriage Cases indicates where the State Court will go with 8.
“As the United States Supreme Court explained in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections”
Our Constitution’s Declaration of Rights is analagous to the Federal Bill of Rights.
The West Virginia State Board Case nicely dovetails with the Petition filed challenging prop 8, in that the challenge argues that such a qualitatively extensive revision of the constitution can only accomplished if 2/3 of each house proposes to either submit the revision to a vote of the people or for approval at a constitutional convention.
Of course, one would think that Prop 8 would meeat the same fate as 22, given the similarity of their language, but the fact that one purports to change the constitution and not merely a couple of statutes must be reckoned with.
Richard – I think you are right on the money. My reading of the CA Constitution is that the constitution can be amended with a simple majority vote. However, it also states that when to amendment conflict with each other, the amendment with the higher vote wins out. Since Prop 8 violates the 14th Amendment, in my opinion, it must be invalidated because the 14th Amendment was ratified by California, making it CA law, with the 2/3 majority vote required by the US Constitution for a state to ratify and amendment.
That’s my take on it at least.
If Prop 8 supporters want to amend the US Constitution to define marriage, they can go through that process. It is a lot of work, but certainly something that is not unrealistic. They would need 2/3 majority votes in 38 states and it would be the law. Given the strong support for anti-gay marriage laws through out the country, this does not seem like a far stretch.
I hope I am on the money. I am not even looking at the federal Constituiton, but the requirements of the State Constitution. Not sure, but believe the movers and shakers have determined to exhaust State challenges before trying federal.