Waldlaw Blog

Friday, November 07, 2008

Defeat Prop 8 -- The Lawsuit

Here is a quick summary of the legal case against Prop 8: Our California Constitution provides two different processes for making change at the constitutional level: amendments and revisions. Amendments can be made by the Legislature or through the initiative process, by a simple majority vote. Revisions require passage by 2/3 of both houses of our state Legislature and then either a constitutional convention or approval of a majority of voters. So, the issue now is: Is Prop 8 an amendment or a revision? To understand the issue, you need a little background. In its May ruling on marriage equality, our Supreme Court reached two very important conclusions: (1) gay and lesbian citizens are a suspect class (i.e. a distinct minority group subject to historical discrimination), and we therefore are entitled to heightened constitutional protection; and (2) marriage is a fundamental right of citizenship embedded in the equal protection and due process clauses of our state Constitution. Having reached those two conclusions, Prop 8 now purports to strip a suspect class of people of one of our fundamental constitutional rights by popular vote. That is unprecedented. That is profoundly undemocratic. Preventing that type of behavior is what the courts, at their core, are there for. Our court has previously ruled that "the 'underlying principles' of the Constitution are meant to be of a 'permanent and abiding nature.' Accordingly, an 'amendment implies such an 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.' ... In contrast, a revision substantially alters those underlying principles or makes 'far reaching changes in the nature of our basic governmental plan.'" (Quoting from the brief filed by NCLR, the ACLU and Lambda Legal asking the Supreme Court to first stay, and then invalidate, Prop 8.) Our Supreme Court has previously held that their "analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature." A change to many separate parts of the Constitution is likely to be found to be a revision, and not an amendment, on quantitative grounds. But a change to just one part of the Constitution can also be a revision, on qualitative grounds, if it "substantially alter[s] the substance and integrity of the state Constitution as a document of independent force and effect." Needless to say, there is merit to the arguments on both sides of this issue. The initiative process is itself embedded in the Constitution, and the required procedures have been followed in this case. So if Prop 8 is, in fact, an amendment, it stands. But the California Supreme Court, having already ruled that gay men and lesbians are a suspect class entitled to heightened protection, and having already ruled that the right to marry is a fundamental right, has got to take seriously the question of whether it is constitutionally viable to allow the majority to strip a protected minority of one of our fundamental rights. As stated by our attorneys: "To the best of [our] knowledge, by seeking to mandate government discrimination against a particular subset of citizens based on a suspect classification, Proposition 8 is unlike any other initiative that has been enacted or even considered by California voters since the initiative process was first adopted." This is a big deal. I hope the Court treats it as such. (To read the full brief, go to http://www.nclrights.org/site/DocServer/CampaignPetition.pdf?docID=4321)


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