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Wednesday, November 5, 2008

Proposition 8: A Glimmer, A Glimpse, of Hope

Acting with a swiftness that suggests, to the ironically-minded, a Boy Scout's preparedness, the ACLU very quickly filed a petition with the court today that provides a small ray of hope to the thousands of same-sex couples in California who face having their right to marry stripped from them by a ballot proposition amending the California Constitution.

The issue? Proposition 8 was an inappropriate vehicle for eliminating the right to marry. Instead of an amendment, approved by a majority of the voting population, the ACLU alleges that what is required to eliminate the right of same-sex couples to marry is a revision.

What the hell is the difference between an amendment and a revision and why does it matter?

The ACLU petition asserts that Proposition 8 "would work a dramatic, substantive change to our Constitution's "underlying principles" of individual equality...[prohibiting] California courts from exercising their core, traditional, constitutional role of protecting the established equality rights of a minority defined by a suspect classification...[effecting] a far reaching change in the nature of our basic governmental plan.""

This, the ACLU thinks, is enough to call what Prop 8 does to the Constitution a "revision" rather than a mere amendment. That is, it does more than insert a line of text that only affects the laws of the state: the insertion of that text changes the relationship of core components of the makeup of the state, in particular the courts' ability to apply the principle of equal protection to an identifiable minority group. To make this change is a revision, not an amendment.

A revision, according to Article 18 of the California Constitution requires a 2/3 vote of the legislature just to call for approval of a convention of electors (voters) to decide the fate of the revision. An amendment, according to the same article, may be enacted by the electors themselves by simple initiative (like Proposition 8). That is, while an amendment only takes one act of decision-making, a revision requires three (legislature, voters, convention).

If the argument is successful then Prop 8 is dead because it was never the right vehicle for the elimination of the right of same-sex couples to marry.

Ironically, had Prop 8 been proposed years ago, instead of the overturned Prop 22 (which was a simple law and not an amendment) then this challenge to the Proposition might not even exist. It is because marriage is recognized by the courts as a fundamental right, and because it was recently ruled to apply to same-sex couples as well as heterosexual couples, that the bold argument that what Prop 8 attempts to do is revise the Constitution can even be made. Before the courts' overturned Prop 22 it was not nearly as evident that denying same-sex couples the right to marry was denying them a fundamental right. It is that judicial history now that leaves the door open for the challenge from the ACLU.

Backpacking Dad is not an attorney but he sure has seen a lot of Law and Order episodes.

13 comments:

SciFi Dad said...

For reference, please provide a summary list of L&O episodes where constitutional revision and amendment were discussed. ;)

In all seriousness, the fact that this passed in California of all places makes me wonder. It would be one thing if it were in a traditionally FAR left or deeply religious state such as in the deep south, but having it ("it" being TAKING AWAY RIGHTS) happen there makes me worry about the whole country, Obama's election not withstanding.

ShredderFeeder said...

The far right has yet to offer one single, substantive reason why "marriage" should be limited to heterosexual couples.

The usual argument "The Bible Says So" is false from the start, nowhere in the bible does it say this. There is some bit about man "lying with" another man being an abomination, but that's right up there with selling our daughters into slavery and beating our wives and servants, in that it really doesn't apply to the modern age.

When someone, anyone, can give me a valid reason for this law, IE site cases of how it hurts people, I might start listening.

Until then the libertarian in me says that the government has no business making these decisions for people. If you're against gay marriage, don't enter into one.

It's nothing but another form of legalized bigotry.

Nibblet's Mom said...

I am simply curious, if people have the right to step in and stop homosexual couples from marrying, when will the Tribunal be called to start the approval process for all heterosexual marriages? You want to protect the sanctity of marriage, surely someone should have stepped in and stopped Spears and K-Fed from marrying.

I for one would like to be a member of the panel, there are some people simply too stupid to get married, yet there are no obstacles standing in their way. I know this argument is not as eloquently stated as BPD's, but I've only had 1 cup of coffee.

A Whole Lot of Nothing said...

Holy law language post and having to read it more than once.

The constitution is not the place to put into place restrictions or take away rights. Its purpose is to guarantee all rights are given equally.

Anonymous said...

just wondering, are you secretly gay?

Lunasea said...

Don't know about BD, but I'm not even a little bit gay and I'm terrified by the erosion of our religious and civil freedoms. I hope the ACLU's fight works.

OH OK! I wanted to kiss a girl in college! There! Are you satisfied???

Backpacking Dad said...

anonymous: I'm not secretly gay, just openly intelligent.

Maura said...

I saw your tweet on this yesterday and I'm glad you devoted a post to it. Of course, having this go through the courts again is going to bring up the spectre of "activist judges" but I think the ruling will come down as you anticipate.

I wrote about my opposition to Prop 8 in the days before the election and while I was not planning on writing about my strong feelings about its passing, it would feel good to pass some of this information on. So thanks!

Note to anonymous: Just wondering, are you not-so-secretly dumb? Or did you think you were being funny?

miko564 said...

First, how is it that somebody can be such a spineless chicken-shit, that they can't even post their idiot comments under their fictional blog-name? Everyone else is more polite than I. Fuck you anonymous, you fucking coward!

Now, on to my comment.
I am not religious, and can't stand religious fanatics, but Prop 8 shows that more than fanatics are involved in this.
Let's just take the Govt out of the marriage game altogether. NONE of us should get married by the government. Let's change the name to civil unions for everyone hetero/homosexual. Everyone gets the tax and legal benefits of that union.
THEN, if you wish to get married in a religious ceremony you can. Those that wish to stay in a prejudiced church, can, and everyone else can find a religion that believes a supreme being (being...you know...supreme and all) loves all its' creations equally. Just my opinion.

Swirl Girl said...

I heard a great comment today on NPR - a caller who voted for Prop 8 on the grounds of their religious beliefs and admitted that much. Then she went on to say that she fears for the United States in general in that while we have freedom OF reigion, we don't have freedom FROM religion...You don't hear that often from christians.

WaltzInExile said...

This was said so well; thank you. Everyone needs to be concerned about eroding civil rights. Nibblet's mom is right on: when do we form a tribunal and start the genetic testing and tell people that since they're both carriers for muscular dystrophy or diabetes or red freaking hair that they can't get married because it's just "better for the children" if they don't?
I'm not gay and I don't live in California. But you bet your ass I'm worried about our country because of this and Prop 2 (FL) and Prop 102 (AZ) and Act 1 (AR). How many incarnations of Rosa Parks are we going to need before people stop shoving other people to the back of the Civil Rights bus? Every single one of us who currently enjoys federal benefits of marriage (tax filing status, social security disability/death benefits, the ability to make your partner from a foreign country a citizen just because you're heteronormative, etc.) needs to be scared to death of ANYONE external to your marriage trying to make sure it fits in some niche.
Sorry for the long rant. I'm still a lot hurt by the way the voting turned out.

zenmom said...

This is great. Thank you. I've talked (typed?) myself to death on this subject in my own blog, on other social networking sites, in my real life. All I have left is this: It's wrong. We gotta fix it.

Daddy Files said...

Long time lurker here coming out of the blog closet for a post...

I live in Massachusetts where gay marriage has been legal for four years. I was an usher at a lesbian wedding for my aunt. They have now have several children. So when religious zealots and the inherently bigoted asshats come out of the woodwork and take existing rights away from people, I find that to be an extraordinarily scary step backward.

Like I said, gay marriage has been legal here for four years. And while a citizen petition did garner enough signatures to be put to a ballot vote, the majority of politicians took a stand and refused to put it on the ballot (despite the legal grey area). So while people talk of activist judges and activist politicians like they are evil, I view them as the keepers of common sense and a necessary buffer to prevent the slippage of peoples' rights.

California, you have disappointed the rest of us...