"That's too big a change in the principles of our constitution to be made just by a bare majority of voters."

The sentence above is ten words too long.

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

The brief submitted by the petitioners seeking a writ of mandate from the California Supreme Court is analytically brilliant, and I am actually hopeful that this brief will succeed in convincing the California Supreme Court that Proposition 8 was enacted in violation of Article XVIII of the California state constitution.

The chief argument raised by the petitioners is that Proposition 8 works a change to the California constitution that is so fundamental as to require the more deliberative approach specified by Article XVIII. Specifically, Proposition 8 deprives one, and only one, class of Californians of a right deemed by the courts to be "fundamental." Furthermore, Proposition 8 proceeds along facially suspect lines. In short, Proposition 8 attempts to deprive a suspect class of a fundamental right, in violation of the underlying principles of equality enshrined in the California state constitution.

The arguments and examples raised by the petitioners are brilliant. One point noted by the petitioners is that, if left to stand, the amendment of the state constitution by Proposition 8 could be followed by subsequent amendments to the state constitution withdrawing additional fundamental rights from a suspect class in piecemeal fashion -- turning the principle of equal protection on its head. The petitioners cited Pastor Niemoller's famous quote ("First they came for the Communists but I was not a Communist so I did not speak out...") in pointing out that Proposition 8, if left to stand, would make it possible for other fundamental rights to be withdrawn from a group already identified along suspect lines.

By eliminating the requirement of equal protection from such a minority, Proposition 8 would remove an essential structural check on the exercise of majoritarian power. Had Proposition 8 sought to ban all marriages in the State of California, principles of equal protection would not be offended; however, the selective identification of a group along suspect lines, followed by the withdrawal from that group of a fundamental right, is inconsistent with the constitution's mandate of equal protection. The petitioners drew an analogy to Romer v. Evans, 517 U.S. 620 (in which the US Supreme Court invalidated a Colorado state constitutional amendment singling out gay persons and depriving them of protection from discrimination at all levels, in both the public and the private sectors). When Romer was handed down, gay persons had not been identified as a "suspect" class; now, on the other hand, Proposition 8 seeks to withdraw a fundamental right from a facially suspect class.

In previous cases where the Court had affirmed the modification of the constitution through the amendment process at the ballot, the substance of these amendments has never targeted a group identified as a suspect class and then attempted to withdraw from that group a fundamental right. By way of ananlogy, Proposition 8 is as flawed in the eyes of the petitioners as would be an "amendment" prohibiting black persons, and only black persons, from invoking fundamental rights under the state constitution. This is because the Court, in in re Marriage Cases, explicitly declared classifications on the basis of sexual orientation to be "suspect" and hence presumptively unconstitutional, thus placing such classifications on the same plane as racial classifications, at odds with the underlying, governing principles of equal protection. The petitioners noted that there would be a profound difference between a measure intended to deprive all Californians of their rights to free exercise of religion, and a measure intended to deprive only Catholics or Muslims of their free exercise rights.

Constitutional amendments imply "...an addition or changes within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed."

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

This cannot be said of Proposition 8, which strikes at the heart of equal protection and which, if allowed to stand, would strip the state courts of their crucial role in preserving the rights of disfavored minorities. Changing the bedrock foundations of the state constitution must be done through the revision process, not the amendment process.

It is the responsibility of the judiciary to enforce such principles as equal protection of the laws. The importance of the courts, in terms of their role in enforcing such principles, cannot be overstated. Proposition 8 would strike at the courts' ability to exercise their essential constitutional authority to protect minorities from overreaching by majorities. While the legislature may, under some circumstances, eliminate a right for all Californians, it may not eliminate a fundamental right as enjoyed by a particular disfavored group, and only by that particular group.

When a right has been deemed as "fundamental," or when a classification has been deemed "suspect," the ususal presumption of legislative competence does not apply; to the contrary, laws that infringe on fundamental rights or that proceed along suspect lines are presumed to be unconstitutional until it is demonstrated that they are constitutional. Here, the measure in question proceeds along suspect lines and infringes a fundamental right, rendering ordinary deference to the legislature inappropriate and granting the judiciary enhanced powers to protect the group in question and / or the right in question. Thus, Proposition 8 would also strike at the separation of powers doctrine, which expressly requires that the courts employ heightened scrutiny under such circumstances.

The key analogy drawn by the plaintiffs demonstrates just how pernicious this measure would be were it to be allowed to operate. Substitite black persons for gay persons, and you would again have a measure that infringes a fundamental constitutional right and that proceeds along suspect lines. Such a measure would NEVER be permitted to take effect following the constitutional amendment procedure; if allowed to take effect at all, it could only do so following the deliberative process involved in a constitutional revision. For the purposes of illustration, this analogy is flawless. Both sex and race are suspect classes in California state constitutional jurisprudence, and the withdrawal of marriage from black persons is analogous to the withdrawal of marriage from gay persons. JUDICIAL INTERPRETATION HAS MADE IT CLEAR THAT CLASSIFICATIONS PREMISED ON SEXUAL ORIENTATION ARE SUSPECT, JUST AS CLASSIFICATIONS PREMISED ON RACE ARE SUSPECT. Thus, Proposition 8 is as offensive as would be a similar measure that singled out black people and prevented them from marrying. To take effect, such a measure would have to flow from the deliberative process associated with constitutional REVISIONS, not from the simple majoritarian vote required for constitutional amendments (even then, such a measure would run afoul of equal protection considerations).

If one such measure, eliminating a fundamental right as enjoyed by as suspect class, is permitted to stand, then additional measures that strip away fundamental rights from this class must necessarily be permitted to stand. This would lead the state down the road identified by Pastor Niemoller in his prescient observation.

In summary, Proposition 8 must fail because it infringes a fundamental right as enjoyed by a group identified along suspect lines. Any such measure must be the product of a constitutional revision, not a constitutional amendment, because it fundamentally alters the core values upon which the state constitution is predicated.

CONTINUED

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

Granting the writ of mandate would not have a deleterious impact on the status quo; to the contrary, it would permit the continued enjoyment of the right to marry by both gay and heterosexual couples. The state would suffer no irreperable harm should the court grant the writ. Heterosexual couples would remain free to marry should the court grant the writ.

Conversely, failure to issue the writ would work irreperable harm on gay couples seeking marriage licenses.

It is unfortunate that this issue has been tossed back to the state supreme court. Should the court agree that the amendment violates the procedure established by Article XVIII for constitutional revisions, we can expect loud braying from religious and social conservatives, and we will doubtless have to suffer indignant, sputtering accusations involving interference with "the will of the people." What these people fail to grasp is the fact that it is the DUTY of the courts to protect suspect classes with special vigilance.

Should the court grant the writ, we will almost certainly prevail should the hard right attempt to ram this change through by using the constitutional revision process (which requires approval by a supermajority of the state legislature before the matter can proceed). This is therefore a crucial legal battle.

PHILIP CHANDLER

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

Let the law of the United States tax code judge The Church of Jesus Christ of Latter-Day Saints (Mormons) for their political action of hate against Gays and Lesbians.

http://www.mormonsstoleourrights.com/#petition

Actually, they financed those that voted against us and many of whom voted for Obama.

--

George DeCarlo, CH
Consulting Hypnotist
908-342-1275 (cell)

End heterosexual oppression of Gays, Lesbians and Bisexuals - support full equal rights!

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

Funny that it's the so called Christians that are always leading the charge when it comes to telling others how to live their lives.They cherry pick their holy book and ignore the parts that don't suit their narrow view of life.I can't believe the Mormons had the nerve to try telling others what was correct in the state of matrimony.How soon they forget.

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

One of the worst things any state could do in its dealings is emulating the Feds. Our constitution was fine till we started adding Articles and making laws. Making a law is like forcing your hand into someone else’s pants without asking and playing with private things. This should be settled privately with pistols at twenty paces.

You may not agree with me but all our troubles started with this one foul up. The Articles should read: “Congress shall make no Law. Guidelines for personal behavior will be determined by the precepts of leading personalities in their own districts or states these to be determined by general caucus. All disagreements to be settled by duel between nominally injured parties and answerable to no other authority than their own conscience. Interference by second parties or parties set to gain monetarily or in holdings of real property will be met by deadly force by all friends of the deceased or their relatives.”

No one person shall determine the fate of another precipitously without encountering deadly force to be administered by any volunteer over the age of 12. No person may approach or injure a child without permission from the child or be subject to deadly force administered by any or all parties over the age of 12 in the immediate area.

All children over the age of 10 unless mentally handicapped or in disagreement with solutions incurring violence; will be trained to use fire arms of any description or personal preference. No adult over the age of 12 will be required to relinquish arms precipitously; all removals of firearms will be considered on a par with intended rape. Unless a caucus has been held by a quorum consisting of not less than seven individuals no weapon may be taken from another.

If we are going to rewrite the Constitution it is the thought of THIS individual that the dispensation should at least in part represent the sentiments of the above with attention to the rights of the individual participant – that is a Confederate mind set not a Federal mind set.

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

Government should not be involved in "marriage". That is the juridiction of churches. Marriage is a religious rite (not right) like baptism and holy communion. What state laws regarding baptism would be acceptable? The states should only be involved in civil unions that convey rights to people that are in a committed relationship, such as being able to see a loved one when in the hospital, community property rights, etc.

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

Jim Swanson, Los Altos, CA
www.bushleagueofnations.com [For FREE downloads of entire book]

If you seek enlightenment about the underlying legal issues, do yourself a favor and read the previous detailed comments of Philip Chandler (“Brilliantly written brief!”).

As for those among us who are in mourning because of the Prop 8 vote, let’s get over it and never give up. Even if the California Supreme Court does not overturn Prop 8, we Californians will eventually sanction same-sex marriage at the ballot box.

The Arc of Freedom on this equal rights issue will continue to move in the progressive direction, if for no other reason than that hundreds of thousands of young progressive voters become eligible voters each year.

But the change in human hearts is much more than this. Only 30 years ago, fewer than 10% of us would have voted for same-sex marriage, and virtually no one would have predicted that almost half of Californians (47.5%,) would do so by 2008.

Slightly more than 50% of Caucasian voters voted NO on Prop 8. This is incredible progress.

I’m an active progressive Christian who is appalled at the rise of the Christian Reich’s upside-down version of Christ and Christianity—Pro-Rich and Pro-War—and the GOP’s War on Iraq and War on America.

As an observer and critic of rightwing religion, I can’t say I was surprised by their disgusting tactics. Because the “true believers” in the Christian Reich “know” they are carrying out God’s will, the ends justify any and all means.

We must not underestimate their long-term commitment and skullduggery. They are not going away.

Thanks to their rightwing actions and the warmongering of the Bush regime, being “a Christian” has understandably become a negative in the eyes of most of the world, and I can empathize with the rapidly increasing number of Americans—especially our younger citizens—who have no use for Christianity.

As for me, I have chosen to stay and fight to reclaim my faith from those who use it to support a rightwing imperial power structure.

Christianity will remain a powerful weapon in American politics, and we abandon this weapon at out peril.

Engaging and exposing the Religious Reich without using the Bible is like hunting rats at the city dump without using your best ammo.

This and much more is discussed in, “The Bush League of Nations: The Coalition of the Unwilling, the Bullied and the Bribed – the GOP’s War on Iraq and America,” by James A. Swanson (2008, CreateSpace Publishing, 448 pages).

As a gift to patriots everywhere, the entire book can be downloaded for FREE at www.bushleagueofnations.com. Please pass along the good news.

I ask for nothing in return, except that you consider using my book to help restore America and advance human rights, including especially GLBT rights.

Jim Swanson, Los Altos, CA
www.bushleagueofnations.com

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

Couples will have a year to consumate the marriage (by producing offspring) or it will be annulled. We can discriminate against couples who can't have kids or choose not to, or enforce the teachings of the Cathoilc Church, "sex is only for procreation", that way you're not discriminating agaist anyone.

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

What if those who voted for Proposition 8 weren't the mindless, heartless bigots that you wish them to be? What if they actually, sincerely believe that the real walk of partnership between the two halves of the human species is something worth celebrating and protecting? What if they believe that not protecting that incredibly fragile ideal will further erode the possibility of real equality for women in society? (And no, the heterosexual monogamy ideal is not traditional marriage in the manner practiced in most societies where marriage is experienced as domestic and sexual slavery of women. Traditional marriage is not the ideal I'm speaking of; I call traditional marriage, narriage to distinguish the two concepts.)

Why is it that those opposed to Proposition 8 view themselves as the only ones who have minds and hearts, and assume the worst of others who do not share their opinions? Why ask for tolerance and respect, and give none?

Red State Gal
Red State Feminists

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]

If you live in California, you can tell your state legislators to pledge their vote against Prop. 8, should the California Supreme Court determine it to be a revision to the Constitution. The legal case against Prop. 8 is better than a lot of the stories out there are admitting. Here's some of the legal background.

[« Reply to this comment] [Post a new comment »] [Rate this comment: 1 - 2 - 3 - 4 - 5]