If California's Proposition 8 Passes, What Next?

[The Nimble Pianist]

Assuming proposition 8 passes in California next week, what recourse is there for the LGBT community and its supporters?

Is there any protocol for rescinding a state constitutional amendment without actually proposing another ballot initiative next year?

What of voter initiatives that are deemed to contradict other explicit parts of the constitution, is the contradiction just left alone until someone challenges it? Can one even challenge it?

Sorry, my knowledge of constitutional law is extremely lacking. I'm curious if anyone knows of anything progressively minded people in California can do to stop this voter initiative in its tracks.

 

[moon1969]

Theocracy because if it passes that would mean that nobody respect the separation of church and state anymore. Can"t believe that people would vote for that even after Ted Haggard, Larry Craig, Mary Cheney and Mark Foley turned out to be gays. The hypocrisy of the so called christian nation. Sure it was so moral and pro-life for Bush to attack Iraq. Jesus would have done the samething.

 

[Dunstan]

Prop 8 will amend the California constitution, but the U.S. constitution still trumps anything in a state constitution by virtue of the Supremacy Clause.

The decision legalizing gay marriage in California was explicitly based solely on the California constitution. I can't remember whether the litigants specifically avoided making any federal claims, or if the California Supreme Court simply declined to reach them. I suspect it was the former, and was a smart move, because the U.S. Supreme Court doesn't review matters of state law.

So gay marriage proponents could file a new lawsuit in California state or federal court asserting that California law (including the California Constitution as amended by Prop 8) violates the federal constitution, i.e. the equal protection and due process clauses. But the U.S. Supreme Court would have the final word in such a case, should it choose to hear it. And they're not likely to rule that there's a federal right to gay marriage that would apply nationwide.

Oh, and yes, you can challenge the validity of an amendment, but I doubt that the fact that it contradicts other parts of the state constitution would be valid grounds. The point of an amendment is that you can change the constitution, so any conflict (that cannot be reconciled through a valid interpretation of the two provisions) would be resolved in favor of the most recent enactment.

 

[Travis]

The poll I saw yesterday had Prop 8 being defeated with 52% voting "no" and 44% voting "yes."

 

[casebro]

I know we have a a ballot proposition system that is used for making state laws. But what is the system for making amendments to the California Constitution? Is direct vote a legally valid method? If so, I suppose it needs a 2/3 majority, pretty hard to get on any issue. Especially on something that just doesn't affect most people.

I don't care either way, it's just not going to affect my life. So I won't put in a vote, I'll leave the people who care one way or another to fight it out.

And homosexual marriages have been legal in Ca. for what, a year now? Anybody got a count of the number performed? Percentage of total marriages? I'll betchya even the Gs and Ls aren't exactly lining up to get it done. Still maybe they ought to have the right, but us males ought to have the right to legal abortions too...

 

[Dunstan]

I know we have a a ballot proposition system that is used for making state laws. But what is the system for making amendments to the California Constitution? Is direct vote a legally valid method? If so, I suppose it needs a 2/3 majority, pretty hard to get on any issue. Especially on something that just doesn't affect most people.

Proposition 8 is a constitutional amendment. And no, it only needs a simple majority. (The only difference in passing a law vs. a constitutional amendment has to do with the number of signatures required to get the thing on the ballot in the first place. Once it's on the ballot, the standard is the same.)

 

[Beerina]

This is why I favor 2/3 supermajority for passing simple laws, much higher for constitutional ammendments.


If you can't get 2/3 the people to agree something should be a law, it probably shouldn't.

Just because some charismatic has managed to whip 50.001% of the population into a frenzy doesn't mean they should be able to bind all future generations, barring colossal failure, which is what it usually takes to repeal a law.

 

[Metullus]

Theocracy because if it passes that would mean that nobody respect the separation of church and state anymore. Can"t believe that people would vote for that even after Ted Haggard, Larry Craig, Mary Cheney and Mark Foley turned out to be gays. The hypocrisy of the so called christian nation. Sure it was so moral and pro-life for Bush to attack Iraq. Jesus would have done the samething.

No.

 

[Cain]

"If California's Proposition 8 Passes, What Next?"

The state will be spared catastrophic earthquakes of Biblical magnitude.

 

[The Nimble Pianist]

I don't care either way, it's just not going to affect my life.

It's a pretty lousy (if not lazy) excuse to not vote to save someone's civil rights simply because "it doesn't affect you personally". Please inform us to which demographics you belong so that I can remember to refrain from voting whenever its your turn to lose some rights.

And homosexual marriages have been legal in Ca. for what, a year now?

Try 4 months. The first ones were solemnized in June.

Anybody got a count of the number performed?

11,000 (a conservative value).

Percentage of total marriages?

I can't find a source for that specific of information, but based on extrapolation from the CDCs figures of marriage rate in California, the population of California and the known estimate of gay marriages performed, we're looking at roughly 4.3% of marriages (and this is again a rather conservative value).

I have a source from the Williams Institute at UCLA that argues the vast majority of the 17% increase in marriage licenses in the last year was due to same-sex marriages.

I'll betchya even the Gs and Ls aren't exactly lining up to get it done.

That's funny because its nearly becoming cliché for every major paper here to have some kind of article roughly titled "LGBT rush to marry". Also, do you think it a valid argument to strip a group of people of a defined civil right due to the perceived or actual lack of exercising such a right by said group?

Sounds an awful lot like "Well Blacks don't even want to drink from our fountains anyway!"

Still maybe they ought to have the right

Ya think?

but us males ought to have the right to legal abortions too...

 

[The Nimble Pianist]

The poll I saw yesterday had Prop 8 being defeated with 52% voting "no" and 44% voting "yes."

Yes, but there was another poll being conducted during the same date range which demonstrated the contrary.

It's a really close match and the sad fact of the matter is that voting yes on 8 is a much bigger priorty to conservatives than voting no on it is to liberals.

Add in the fact that many Dems will likely not bother going out to vote since Obama has already had this state for months, there's a good chance that this thing can tip in favor to the proponents.

All I know is this race is making Mormons really hated in liberal and/or LGBT affirming circles right now... rightfully so.

 

[The Nimble Pianist]

Oh, and yes, you can challenge the validity of an amendment, but I doubt that the fact that it contradicts other parts of the state constitution would be valid grounds. The point of an amendment is that you can change the constitution, so any conflict (that cannot be reconciled through a valid interpretation of the two provisions) would be resolved in favor of the most recent enactment.

This is what I was getting at. I've heard some say that it just might be a possibility to demonstrate that this new amendment would violate the free exercise clause with respect to churches that solemnize same-sex marriages.

In such a case, assuming the courts agreed, wouldn't they strike the most current, frivolous amendment rather than an time-honored one?

Also, someone mentioned something about arguing that this amendment is not actually an amendment but a constitutional *revision*.

Does anyone have any information about this?

 

[Tsukasa Buddha]

And homosexual marriages have been legal in Ca. for what, a year now? Anybody got a count of the number performed? Percentage of total marriages? I'll betchya even the Gs and Ls aren't exactly lining up to get it done. Still maybe they ought to have the right, but us males ought to have the right to legal abortions too...

Excuse me?

 

[Dunstan]

This is what I was getting at. I've heard some say that it just might be a possibility to demonstrate that this new amendment would violate the free exercise clause with respect to churches that solemnize same-sex marriages.

I can't see that being a successful argument. The implication would be that all marriage restrictions violate a church's right to marry whoever its religious dictates allow (minors, groups of more than two, siblings... basically the whole parade of horribles that gay marriage opponents like to trot out), and that's a pretty radical proposition. Also, the real issue is not about what ceremonies churches can conduct -- or refuse to conduct -- but which ceremonies the law will recognize has having a legally binding effect.

In such a case, assuming the courts agreed, wouldn't they strike the most current, frivolous amendment rather than an time-honored one?

Nope. Basic principle of statutory or constitutional construction is that any conflict is resolved in favor of the most recent enactment, as that is the one presumably most reflective of the will of the people. And courts don't go about the business of deciding which constitutional amendments are "frivolous"; how would they even do that without simply implementing their own political views?

Of course, if there's a way to reconcile two provisions so that they don't conflict, then that's what you do. But that seems unlikely in this case.

Also, someone mentioned something about arguing that this amendment is not actually an amendment but a constitutional *revision*.

Does anyone have any information about this?

Well, here's an article from a pro-gay marriage site discussing that in part. I haven't looked at the issue, really, but it strikes me as dubious that Prop 8 would really “substantially alter the [state’s] basic governmental framework.” That sounds to me more like measures to change the way the legislature works, or how a bill is passed, or something else very substantial. If reinstating the death penalty was an amendment and not a revision, I'm just not seeing a different result for Prop. 8.

 

[dudalb]

A lot of people in the California Gay Community are blaming the Mayor Of San Francisco for whatever steam Prop 8 has gathered. He made some pretty dumb comments about "Gay Marraige is Coming ..Like It Or Not" that annoyned a lot of people who were neutral on the issue. The Pro 8 people are playing the Mayor's comments in their commercials. With friends like that....

 

[casebro]

It's a pretty lousy (if not lazy) excuse to not vote to save someone's civil rights simply because "it doesn't affect you personally". Please inform us to which demographics you belong so that I can remember to refrain from voting whenever its your turn to lose some rights.

You took that sentence out of the context of my whole post. I basically stated that I had no dog in that fight, and that I would not vote either way- I would leave the decision to those who hold stronger opinions.

I am a believer in Democracy- the most good for the most many. Some of the modern changes seems to benefit the few at the cost to the many. But on this, I don't care- I see no cost to the many.

I do see that some kind of 'domestic partnership' ought to carry legal weight. Why should roomies have to be either hetero or homo to not share legal burden or perks? I'm not concerned with how anybody gets their rocks off, but I can see that long time friends ought to have some kind of legal consideration- without having to resort to adopting each other or getting specific in wills.

Yes, I do believe that men should have the right to a "legal abortion". I ought to be able to go file legally binding papers that state "I choose not to be the father of any pending child". Just as women can go to the doctor and "choose not to be the mother of any pending child". Gay marriages seem to affect 5% (from above), fatherhood affects 50% (+/-). In view of my earlier statement re: greater good for the greater many: which subject is more "democratic" at heart?

Re: my not voting for things I consider inconsequential to me, would you rather I vote at random? Should I choose by an assumed ethnic connection based on surname? sex? occupation? Why pick between Bob Smith or Tom Insunza for dogcatcher, at random? I know nothing of either, not likely to be affected by either, but realize the choice may be important to others. I with-hold the 50% chance of me screwing somebody out of something that is more important to them than it is to me.

You'll decide how to vote by your conscience, I'll decide my way.

 

[kallsop]

What next? Find corrupt politicians and activist judges to ignore the voters. Shouldn't be too hard in California.

 

[WildCat]

All I can say is anyone here who is a CA resident make sure you vote next Tuesday, and vote "no" for this travesty of an amendment.

Hopefully the question in the OP will be moot.

 

[SezMe]

What next? Find ... activist judges to ignore the voters.

What? You want judges to rule on matters of law based on how voters cast their ballots? I don't think you throught that one through. (as usual)

 

[Bob Blaylock]

What next? Find corrupt politicians and activist judges to ignore the voters. Shouldn't be too hard in California.

It's already happened regarding this matter, when the courts overturned Proposition 22, ignoring the will of the people who had overwhelmingly voted in favor of that measure.