Three Questions for the Court

This commentary is the opinion of the author and does not necessarily reflect that of other authors at Box Turtle Bulletin

Timothy Kincaid

November 20th, 2008

When accepting the challenge to Proposition 8, the California Supreme Court identified three questions that the process will answer:

1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

This is the question that I believe will drive most of the conversation, speculation, and argument for the next several months. The determination of whether Proposition 8 would revise or amend the constitution determines whether it was properly enacted.

An amendment needs only signatures of 8% of the voters (who voted in the last gubernatorial election) and a majority vote. A revision requires approval by two-thirds of each house and a majority vote of the populace.

As Proposition 8 was not (and would not be) approved by two-thirds of the legislature, a determination that it is a revision effectively kills the effort.

The supporters of Proposition 8 may argue that revisions deal solely with the structure of government itself and not with the rights accorded to citizens.

Those seeking to overturn Proposition 8 may argue that the implementation of such a change would, in essence, dissolve the due process and equal access clauses and thus gut the constitution itself.

This issue is of enormous significance, and not just to gay Californians. In Re Marriage Cases did more than grant marriage rights; it set sexual orientation as a suspect classification. Regardless of one’s “opinion” or what one “feels” about the history of discrimination against various groups, in the State of California sexual orientation is now treated with the same consideration as race or religion.

Whichever way the Court decides this question, precedent will be set. The answer to this question will determine whether a small selection of signatories can, with a simple majority vote, remove a fundamental right from a suspect class.

In other words, if the Court finds that Proposition 8 can remove from gays the right to marry, then here foreward nothing in the California Constitution bars future amendments from denying, for example, African Americans the right to procreation or Mormons the right to own property. And while such propositions may be unenforceable due to federal constitutional protections, they could sit as a part of our governing document for the state. If fundamental rights can be removed from suspect classes by popular vote, then there really are no minority protections at all coming from the state constitution.

If we may take consolation from history, the California Supreme Court has dealt before with the question of discrimination by means of constitutional amendment. Per the LA Times,

In 1966, the California Supreme Court struck down a 1964 initiative that would have permitted racial discrimination in housing. Voters had approved the measure, a repeal of a fair housing law, by a 2-to-1 margin. Opponents challenged it on equal protection grounds, not as a constitutional revision.

If the court continues to find that gays cannot be denied marriage on equal protection grounds – as they already have – then this may be a foregone conclusion.

2. Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

I’m not absolutely certain what the Court is getting at here. It may be asking if legislation – even legislation by means of constitutional amendment – can be enacted contrary to the findings of the Supreme Court.

The Court may be viewing Proposition 8 as a challenge to the Court’s right to apply equal access and due process to unpopular minorities and pondering whether the role of the courts could be made moot by means of a “government by proposition” in which any popular – but clearly unconstitutional – position could achieve the force of law through public vote.

3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

While this may seem to perhaps be a separate question, I think it may play a great role in driving the answers to the first two questions.

The language of Proposition 8 is as follows:

Only marriage between a man and a woman is valid or recognized in California.

You’ll notice that this doesn’t talk about performing marriages or allowing marriages. I’m not an attorney but it seems to me that if we go by simple language, it says that as of midnight on November 5th, all same-sex marriages ceased to be valid or recognized.

Jerry Brown, the State Attorney General, is arguing that laws cannot be applied retroactively and that this amendment makes no provision for marriages performed before the initiative date. And therefore those who married before the proposition was passed will remain married in the eyes of the state. But, it seems to me that the most straight-forward finding would be that such marriages were valid when performed and any legal action taken accordingly during the interim is binding but that after passage the State of California ceased to recognize them (though other states may continue to do so).

Most – other than those most dedicated to demeaning gay persons – would see this as a cruel decision. Other than true haters, few people want to see those who have already committed to each other stripped of their status. And, in fact, the Yes on 8 Campaign sought to keep that item of their agenda hidden.

And the language of the Court suggests that even some of those who did not side with the majority on In Re Marriage Cases do not seek to engage in cruelty. They are, after all, human and compassionate.

I think that they will recognize that finding Proposition 8 as not unconstitutional would place those citizens who responded to their May decision into a great deal of pain. And I suspect that the justices will feel a sense of responsibility for the consequences of their decisions, both in May and presently. We may even choose to find hope in the fact that the Court refused to put a stay on their decision in May, knowing that the passing of Proposition 8 was a possibility.

While this is not the sort of criterion on which a court case is decided, I cannot help but think that this third question may influence the justices to give strong consideration to the suspect class that is appealing for protection of their fundamental rights. Our cry for justice may be more compelling when the pain of injustice can be all too clearly seen.


November 20th, 2008

I would like to share your faith in the humanity of the court, Timothy, but I cannot sustain one more crushing defeat. I cannot afford to allow my hopes to resurface. I can’t take it again.

If humanity and compassion had anything to do with it, the court would not have put us through this pain in the first place — it would have blocked 8 from reaching the ballot.

That wouldn’t have been proper procedure, as I understand it (IANAL), but I can no longer afford to hang even a shred of faith on the goodness of human beings any longer. If I reach for one more carrot that’s likely to be snatched away again, it will kill me.

They are “engag[ing] in cruelty,” Timothy, they are.

I would love to be proven wrong. But I can’t afford to hope I am.


November 20th, 2008

These arguments above are very intelligent for a change. Come now and let us reason together. You see the powerful trend sweeping across our country where stupidity, ignorance and intolerance are no longer acceptable. People are sick and tired of stupidity. The religious right are responsible for systematically doing all in their power to corrupt our government and tear our constitution to shreds in order to create their American theocracy. They have gotten far too much power over the past 20 years or so and I think that the court will take the separation between religion and the state very seriously. That trend is also happening. If I were a level headed Republican I would be seriously p.o’d about the fact that the religious right has all but destroyed my party. That is something that the justices who are Republican might have in the back of their minds as well. I think wise people now see how destructive religion can be if allowed to bully their way through and take control of our political system.

Ben in Oakland

November 20th, 2008

What i want to know is, why isn’t there a suit based upon freedom of religion and the state not favoring one rleigious itnerpretation?


November 21st, 2008

Ben in Oakland – there have been six suits filed so far, the fourth, fifth and sixth of which protest the passage of Prop. 8 on the basis that it represents a threat to achieving racial equality, women’s rights and religious freedom respectively. In all three cases the significant argument in the suit is been re. the “separation of powers” Timothy Kincaid mentioned above – Prop. 8 directly challenges the constitutional right and duty of Courts to protect the rights of minority groups by allowing Courts to be overruled by the electorate – effectively it transfers a power (judgement on civil rights) away from the Courts.

What needs to be done right now is outreach to the various minorities that largely voted for Prop 8 – Blacks, Hispanics, etc. – in order to get them to recognise the threat it poses to them. If successful the threat of a recall would be lessened, perhaps even eliminated entirely, and that would increase the chances of victory next year – the case is probably going to be heard in March and the decision will be given within 90 days, so there isn’t a huge amount of time to get moving on this.

I recommend that anyone in CA with free time contact one of the civil rights organisations that are opposing Prop 8 to volunteer – even if you don’t work directly on the case itself, you could free up someone else to do so. The details of who is involved is on the PDF links on this page of the California Supreme Court website (the page lists all the documents submitted regarding the Prop 8 cases).


November 21st, 2008

Tavdy typed:

What needs to be done right now is outreach to the various minorities that largely voted for Prop 8 – Blacks, Hispanics, etc. – in order to get them to recognise the threat it poses to them.

Exactly! What prevents the next minority to be targeted by some other group with powerful influence with lots of money, unpaid volunteers and fear tactics?


November 21st, 2008

I think the state of same-sex marriages would fall under the same fate as other marriages that legally take place but are later considered invalid. E.g., in Illinois, someone legally changed their status from female to male, married a male, and divorced. During custody hearings, the wife challenged that the change in sex status was invalid (not having received the particular surgery) was also invalidated the marriage (because there is no same-sex marriage in IL). Then she received full custody. In that case, it only happened because some lawyers made it happen. So unless 1) every same-sex marriage in CA is challenged or 2) a specific court decision is made, past marriages won’t be threatened.

My two cents.


November 21st, 2008

There is an additional issue of the court finds that the passage of Prop 8 is constitutional, it could bring into question the validity of any marriage in the state. As I understand it, and have read some commentary with this argument, the equal protection clause of the Constitution has not been repealed. But if the Court used equal protection as the basis for the equal marriage decision, but also rules the amendment can stand, there is a conflict in the Constitution. One of the only ways to resolve that conflict is for all marriages to stop in California.

There would be a very bitter irony indeed if the religious right gets their way and ends up invalidating not just same-sex, but opposite-sex marriages as well.


November 22nd, 2008

I am in the same boat as Sapphocrat. The more this thing drags out an one hope after another is taking a toll on too many of us. I am not married, I am not even gay or lesbian, and it effects me. I can see how holding on to one last sliver of hope is hard, if that sliver is gone, the deep depression sets in. We sit and read the tea leaves hoping to make tea, not ice cream. IMHO I believe the courts will throw H8 out. on the first argument. and Same Gender Marriages will stand.

But if they decide that marriage is not a civil right, basically all marriages, homo and hetero will become invalid. Equality under the law is the key isssue this faces. The courts could say all or none is the only choice they have, and leave it up to the fundies to decided, Do they want marriage, and that is narriage for all. or, noone gets a marriage.


November 22nd, 2008

You will forgive me, Mr. Burroway if I hijack this thread. I think it’s important. This coming week is a special time for all of us. This includes our friends in foreign lands. But…it’s a tradition in some parts to sit down with friends and family and give thanks.

What are we thankful for?

I’m grateful for the loss in California, Arizona and Florida. What better kick-in-the-pants for us. This past election galvanized us. We are not complacent anymore. Our momentum is just starting. (Plus, what better PR could the Harvey Milk movie ask for?)

I know it has been a rough road lately. But we will survive and be better. I know I am. Thanks to people who have typed a lot here, at least I can appreciate how our Republic works and the stuff Mr. Thomas (my 9th Grade civics/history teacher) taught me is finally sinking in.

Your turn.


November 22nd, 2008

there is a fourth question, and it may be the biggest one of all, though it is still under the radar.
the question deals with the precedent that is being set by Prop 8 and what it means not just for the issue of same-sex marriage but as a use in the process to change and/or take away rights of any group by “amending” the Calif. Constitution by this practice.

instead of making it difficult to propose “frivolous” issues, does the passage of Prop 8 show a precedent that could lead groups to ban marriage, say, between catholic latinos and evangelical protestant latinos; or denying florists to sell to illegal immigrants; or, to be somewhat silly, forbidding straight people to marry opposite-sex members; or eliminating marriage all together and making it a civil contract between people not matter what the sex?

even the NAACP and other major Civil Rights groups are entering “amicus briefs” to the suits asking the California Supreme Court to determine the status of Prop 8’s passage because they fear the creation of new paradigms being set that would, in effect, redefine not just the California Constitution but the basic premises of civil rights. this is the very thing the promise of protections by the courts is meant to defend against the concept of the “tyranny of the majority”.

i think it possible a very large can of worms may have been opened beyond what the proponents of Prop 8 intended. they worked from purely emotional bases without looking at the legal ramifications. what is stopping them from moving away from marriage to other matters?

personally, i prefer the last “frivolous” scenario i mentioned – the dissolution of ALL marriages replacing them with civil contracts because, when you get right down to it, what is being refused the LGBT community are hundreds of legal preferences given only to “married” people. as a single person, i can’t even have those preferences.


November 22nd, 2008

With regard to Tavdy’s concern about the threat of a recall, I think that that minority concerns would be up front against the recall.

The only Hispanic on the court, Justice Carlos Moreno, supported same sex marriage and will probably support overturning Prop 8. Should the Supreme Court overturn Prop 8 and a recall ensue, it would be pure foolishness on our part not to paint this as an attempt on the part of Utah Mormons to take over the California Court and kick out the one Hispanic voice. Paint it as racism in every Hispanic neighborhood, every Spanish language radio and TV outlet, etc. The Mormons and their recall allies will rue the day they took this path.

In African American communities, pointing out that the Church from Utah wants to replace a Hispanic judge who was fair even to gays, and replace him with a choice more to their liking, certainly doesn’t bode well for cases affecting African Americans that come before the court.

Ultimately we are going to have to learn to play hardball if we ever hope to start winning some of these fights. I think we should already be confronting this recall threat by talking up the issue of Mormons directed from Salt Lake City trying to take over our court system and purge the uppity Hispanic judge they can’t control.


November 22nd, 2008

Just so everyone understands, Chief Justice Ron George, and Associate Justices Carlos Moreno and Ming Chin will all be up for an automatic retention vote in 2010 (unless one or more decides to retire). This is not a “recall”, but it will provide an opportunity for those who are bent out of shape about same-sex marriage to campaign against George and Moreno (Ming was a dissenter in the May decision).

This is just one more reason why it’s vital that we continue our efforts to increase popular support for same-sex marriage, whatever the judicial fate of Prop 8 turns out to be. It would be terrible if these two justices were removed for their votes in favor of same-sex marriage, and a strong vote to retain them will discourage further efforts to intimidate or punish other justices who issue rulings favorable to LGBT people.

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