Monday, November 10, 2008

California Constitution 101

So here's the deal, boys and girls:

Proposition 8 attempts to change our fundamental law by means of an initiative amendment that, on a simple majority vote, threatens all of our fundamental constitutional rights – including the right to freedom of religion.

Article XVIII of the California Constitution sets up different procedures for important “revisions” of the Constitution’s fundamental law, on the one hand, and relatively minor “amendments” on the other.

Changes that affect core aspects of our constitutional government are “revisions” that require passage either by two-thirds majorities in both houses of the legislature plus submission to the people, or a full-blown constitutional convention.

An “amendment,” on the other hand, involves a relatively minor “addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” Livermore v. Waite (1894) 102 Cal. 113, 118-19.

Nothing could be more fundamental to our constitutional government than equal protection of the law.

A change to the Constitution that deprives a discreet segment of the population of the right to equal protection of the law in order to take away a further fundamental right (here, the right to marry) cannot be characterized a simple “addition or change within the lines of the original instrument.” It is a radical, fundamental abrogation of a core principle of our constitutional law.

It follows, then, that Proposition 8 is void. Because if Proposition 8 were upheld, setting a precedent that fundamental rights may indeed be deleted on the basis of a simple majority vote, then there is no principled limitation on what other rights might be taken away by initiative amendments. Not even fundamental constitutional protections of religious liberty would be safe.

Class dismissed.


SCG said...

I am interested to see how this progresses in the courts. My best wishes to all in California.

Susan in FL
"Where marriage or the substantial equivalent thereof will be for two unwilling teen-agers" Tina Fey's Palin might say.

David said...

Will someone please be making this argument in a court with clout sometime soon please?


JCF said...

I've seen this argument numerous times now, and it seems convincing to me...

...but Jeffrey Toobin (CNN legal analyst) poo-poo'd it (and he's usually pretty sharp). He thought the only real controversy, would be over the validity of pre-Nov4 ssm's.

I guess I'm just saying, not to get our hopes up so high, that they're CRUSHED again, if the Court doesn't overturn it. :-(

Prairie Soul said...

I've been following the Prop 8 story ever since you brought it to your blog, Susan. Like many others, I was as surprised as I was disappointed that California voters approved it. And like many others, I was offended by the misleading and/or false arguments offered by its proponents.

Just curious. Your constitutional analysis here must have been in the minds of you and your fellow opponents from the beginning. Why didn't opposition efforts focus more sharply on this all along?

I ask this only because I suspect those who favored the proposition will now call this a sour grapes, desperate attempt to overturn the "will of the people." I can imagine their accusations that since you couldn't win the election "fair and square," you're now trying to toss out the vote on a "technicality."

I vaguely remember some reference to the constitutionality question months ago, but I don't recall the specifics.

George said...

per genreal counsel to yes on 8.

The ACLU/Equality California lawsuit is completely lacking in merit. It is as if their campaign just spent $40 million on a losing campaign opposing something they now say is a legal nullity. Their position is absurd, an insult to California voters and an attack on the initiative process itself.

The right to amend California’s Constitution is not granted to the People, it is reserved by the People. The Supreme Court has repeatedly acknowledged the reserved power of the People to use the initiative process to amend the Constitution. For example, when the Rose Bird Court struck down the death penalty as a violation of fundamental state constitutional rights, the People disagreed, and in the exercise of their sovereign power reversed that interpretation of their Constitution through the initiative-amendment process. Even a liberal jurist who vehemently disagreed with the People’s decision on the death penalty, Justice Stanley Mosk, nevertheless acknowledged the People’s authority to decide the issue through the initiative-amendment process.

It should also be noted that the ACLU recently made this same “constitutional revision” claim in a nearly identical matter in Oregon and it was unanimously rejected. The claim was made under almost identical provisions of the Oregon State Constitution, against an almost identical voter constitutional amendment which read, “…only a marriage between one man and one woman shall be valid or legally recognized as a marriage.” The Court of Appeals of Oregon unanimously rejected the ACLU’s “revision” claim. (Martinez v. Kulongoski (May 21, 2008) --- P.3d----, 220 Or.App. 142, 2008 WL2120516).

IT said...

This argument was put forth in the summer and the court declined to hear the case, without prejudice.

Wonder if they regret that now.

I still don't undertand how the pundits say REMOVING a right is not a revision.

On the other hands, the pundits also said that the Supremes would never allow gay marriage in the first place.

Regardless, expect firecrackers.

And wherever you are in the US, join the rally on the 15h -- info at


Prairie Soul said...

IT writes, "This argument was put forth in the summer and the court declined to hear the case, without prejudice."

Thanks, IT. I thought I remembered something about that. And I, too, wonder how many folks regret that decision.

Above, George makes exactly the case that I would expect now from supporters of the proposition. For all the embattled opponents of this measure, it's just a darn awkward position from which to carry on the argument. I'm no legal eagle, so I cannot fairly assess the merits of George's comment. I'm just hoping that there is a strong and cohesive rebuttal that will prevail.

uffda51 said...
This comment has been removed by the author.
uffda51 said...

resent to correct spelling!

How ironic that the general counsel of the Yes on 8 campaign uses words like “absurd” and “insult” to characterize the No on 8 folks. And uses a decision on the right of the state to execute it’s citizens as an example supporting his cause.

Jesus practiced and preached open commensality and compassion and, as a result, became the most well known victim of the death penalty in history. The message the self-proclaimed Christians supporters of Prop 8 draw from this is – practice and preach exclusion and punishment, sanctioned by the state, in the name of Jesus.

Who is being absurd and insulting?