Prop 8 updates
I've been following in a number of blogs like this one* the plans to challenge the constitutionality of Prop 8. There're some great comparisons to lawsuits & court decisions that forced civil rights changes.
And sure enough: Calif. Supreme Court to take up gay marriage ban. **
On the down side, the Prop 8 pushers got "friend of the court" status to argue in favor of keeping it, since Jerry Brown is an avowed opponent & they figured he wouldn't put effort in to it, AND they were successful in barring the "no on 8" people from getting the same status.
We'll see how it goes.
Speaking of Prop 8's proponents, here's a VERY interesting cartoon about the history of the Mormon church (including their historical racism). Yeah, I'd feel uncomfortable taking anything people holding these beliefs say about marriage (or anything else) seriously.
*
It's Not Over Til It's Over
Out of the courthouse, back to the streets. That seems to be the view of thousands of members of the California gay and lesbian community seeking to secure the right to marriage. They are mistaken. Actually, civil rights history may simply be repeating itself.
As in several other states, in barely passing Proposition 8, California's voters have undone the California Supreme Court decision invalidating the California statute allowing civil unions but denying marriage because that distinction violated gay citizens' rights to equality and privacy under the California Constitution. But by doing, the electorate may well now have violated parallel guarantees contained in the United States Constitution. We have been here before.
In 1964, in the midst of a racial divide now perhaps hard to fathom after the election of Barack Obama, California's voters overwhelming passed proposition 14. Like Prop 8, that measure amended the California Constitution to invalidate the state's recent laws prohibiting race discrimination in housing. In the famed case of Reitman vs. Mulkey, first the California and then the US Supreme Court struck down the initiative as unconstitutional. They invoked well settled constitutional doctrine perhaps best stated decades earlier by Justice Robert Jackson: "the very purpose of the Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities... Fundamental rights may not be submitted to a vote, they depend on no elections."
Governor Arnold Schwarzenegger and other public officials have now stated that after passage of Proposition 8, they must now follow "the will of the people." However, it is in the best tradition of the Founding Fathers to protect against laws intended only to suppress inalienable rights held by all Americans -- gay or straight . They come, after all, not from the state or the electorate; as Jefferson said, "we are endowed" with them "by the Creator."
In its In Re Marriage decision, the California Supreme Court's cited prior decisions striking down laws against interracial marriage on the grounds that under the US Constitution "marriage, so integral to an individual's liberty... may not be abrogated by the legislature or the electorate." (Without such decisions, we would have no Barack Obama). However, the state supreme court did not reach the US Constitutional question since our own Constitution guaranteed equality and privacy rights. By amending the California Constitution with Proposition 8, however, the federal question is now squarely presented -- both in the state and then eventually in the US Supreme Court. Like its California counterpart, the US Constitution protects the individual against discrimination in exercising fundamental rights including privacy -- what Justice Brandeis once called "the right to be left alone" -- from intrusion by government. Being gay does not make one a lesser citizen. Proposition 8 should now be struck down.
Several years ago, the people of Colorado passed a mean-spirited ballot measure amending their state constitution to prohibit government officials from adopting laws against gay discrimination. The Colorado and then US Supreme Court's tossed it out in Romer vs. Evans because "the disadvantage is born of animus against the category of persons affected." So too was Proposition 8 which should suffer a similar fate. Because at its core, our Constitution protects the right to be different, the right to be free. That's called liberty.
Al Meyerhoff is a civil rights lawyer in Los Angeles.
**
Calif. Supreme Court to take up gay marriage ban
By LISA LEFF
Associated Press Writer
SAN FRANCISCO (AP) -- California's highest court agreed Wednesday to hear several legal challenges to the state's new ban on same-sex marriage but refused to allow gay couples to resume marrying before it rules.
The California Supreme Court accepted three lawsuits seeking to nullify Proposition 8, a voter-approved constitutional amendment that overruled the court's decision in May that legalized gay marriage.
All three cases claim the measure abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.
As is its custom when it takes up cases, the court elaborated little. However, the justices did say they want to address what effect, if any, a ruling upholding the amendment would have on the estimated 18,000 same-sex marriages that were sanctioned in California before Election Day.
Gay rights groups and local governments petitioning to overturn the ban were joined by the measure's sponsors and Attorney General Jerry Brown in urging the Supreme Court to consider whether Proposition 8 passes legal muster.
The initiative's opponents had also asked the court to grant a stay of the measure, which would have allowed gay marriages to begin again while the justices considered the cases. The court denied that request.
The justices directed Brown and lawyers for the Yes on 8 campaign to submit arguments by Dec. 19 on why the ballot initiative should not be nullified. It said lawyers for the plaintiffs, who include same-sex couples who did not wed before the election, must respond before Jan. 5.
Oral arguments could be scheduled as early as March, according to court spokeswoman Lynn Holton.
"This is welcome news. The matter of Proposition 8 should be resolved thoughtfully and without delay," Brown said in a statement.
Both opponents and supporters of Proposition 8 expressed confidence Wednesday that their arguments would prevail. But they also agreed that the cases present the court's seven justices - six of whom voted to review the challenges - with complex questions that have few precedents in state case law.
Although more than two dozen states have similar amendments, some of which have survived similar lawsuits, none were approved by voters in a place where gay marriage already was legal.
Neither were any approved in a state where the high court had put sexual orientation in the same protected legal class as race and religion, which the California Supreme Court did when it rendered its 4-3 decision that made same-sex marriage legal in May.
Opponents of the ban argue that voters improperly abrogated the judiciary's authority by stripping same-sex couples of the right to wed after the high court earlier ruled it was discriminatory to prohibit gay men and lesbians from marrying.
"If given effect, Proposition 8 would work a dramatic, substantive change to our Constitution's 'underlying principles' of individual equality on a scale and scope never previously condoned by this court," lawyers for the same-sex couples stated in their petition.
The measure represents such a sweeping change that it constitutes a constitutional revision as opposed to an amendment, the documents say. The distinction would have required the ban's backers to obtain approval from two-thirds of both houses of the California Legislature before submitting it to voters.
Over the past century, the California Supreme Court has heard nine cases challenging legislative acts or ballot initiatives as improper revisions. The court eventually invalidated three of the measures, according to the gay rights group Lambda Legal.
Andrew Pugno, legal counsel for the Yes on 8 campaign, said he doubts the court will buy the revision argument in the case of the gay marriage ban because the plaintiffs would have to prove the measure alters the state's basic governmental framework.
Joel Franklin, a constitutional law professor at Monterey College of Law, said that even though the court rejected similar procedural arguments when it upheld amendments reinstating the death penalty and limiting property taxes, those cases do not represent as much of a fundamental change as Proposition 8.
"Those amendments applied universally to all Californians," Franklin said. "This is a situation where you are removing rights from a particular group of citizens, a class of individuals the court has said is entitled to constitutional protection. That is a structural change."
The trio of cases the court accepted were filed by six same-sex couples who have not yet wed, a Los Angeles lesbian couple who were among the first to tie the knot on June 16 and 11 cities and counties, led by the city of San Francisco.
And sure enough: Calif. Supreme Court to take up gay marriage ban. **
On the down side, the Prop 8 pushers got "friend of the court" status to argue in favor of keeping it, since Jerry Brown is an avowed opponent & they figured he wouldn't put effort in to it, AND they were successful in barring the "no on 8" people from getting the same status.
We'll see how it goes.
Speaking of Prop 8's proponents, here's a VERY interesting cartoon about the history of the Mormon church (including their historical racism). Yeah, I'd feel uncomfortable taking anything people holding these beliefs say about marriage (or anything else) seriously.
Click to view*
It's Not Over Til It's Over
Out of the courthouse, back to the streets. That seems to be the view of thousands of members of the California gay and lesbian community seeking to secure the right to marriage. They are mistaken. Actually, civil rights history may simply be repeating itself.
As in several other states, in barely passing Proposition 8, California's voters have undone the California Supreme Court decision invalidating the California statute allowing civil unions but denying marriage because that distinction violated gay citizens' rights to equality and privacy under the California Constitution. But by doing, the electorate may well now have violated parallel guarantees contained in the United States Constitution. We have been here before.
In 1964, in the midst of a racial divide now perhaps hard to fathom after the election of Barack Obama, California's voters overwhelming passed proposition 14. Like Prop 8, that measure amended the California Constitution to invalidate the state's recent laws prohibiting race discrimination in housing. In the famed case of Reitman vs. Mulkey, first the California and then the US Supreme Court struck down the initiative as unconstitutional. They invoked well settled constitutional doctrine perhaps best stated decades earlier by Justice Robert Jackson: "the very purpose of the Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities... Fundamental rights may not be submitted to a vote, they depend on no elections."
Governor Arnold Schwarzenegger and other public officials have now stated that after passage of Proposition 8, they must now follow "the will of the people." However, it is in the best tradition of the Founding Fathers to protect against laws intended only to suppress inalienable rights held by all Americans -- gay or straight . They come, after all, not from the state or the electorate; as Jefferson said, "we are endowed" with them "by the Creator."
In its In Re Marriage decision, the California Supreme Court's cited prior decisions striking down laws against interracial marriage on the grounds that under the US Constitution "marriage, so integral to an individual's liberty... may not be abrogated by the legislature or the electorate." (Without such decisions, we would have no Barack Obama). However, the state supreme court did not reach the US Constitutional question since our own Constitution guaranteed equality and privacy rights. By amending the California Constitution with Proposition 8, however, the federal question is now squarely presented -- both in the state and then eventually in the US Supreme Court. Like its California counterpart, the US Constitution protects the individual against discrimination in exercising fundamental rights including privacy -- what Justice Brandeis once called "the right to be left alone" -- from intrusion by government. Being gay does not make one a lesser citizen. Proposition 8 should now be struck down.
Several years ago, the people of Colorado passed a mean-spirited ballot measure amending their state constitution to prohibit government officials from adopting laws against gay discrimination. The Colorado and then US Supreme Court's tossed it out in Romer vs. Evans because "the disadvantage is born of animus against the category of persons affected." So too was Proposition 8 which should suffer a similar fate. Because at its core, our Constitution protects the right to be different, the right to be free. That's called liberty.
Al Meyerhoff is a civil rights lawyer in Los Angeles.
**
Calif. Supreme Court to take up gay marriage ban
By LISA LEFF
Associated Press Writer
SAN FRANCISCO (AP) -- California's highest court agreed Wednesday to hear several legal challenges to the state's new ban on same-sex marriage but refused to allow gay couples to resume marrying before it rules.
The California Supreme Court accepted three lawsuits seeking to nullify Proposition 8, a voter-approved constitutional amendment that overruled the court's decision in May that legalized gay marriage.
All three cases claim the measure abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.
As is its custom when it takes up cases, the court elaborated little. However, the justices did say they want to address what effect, if any, a ruling upholding the amendment would have on the estimated 18,000 same-sex marriages that were sanctioned in California before Election Day.
Gay rights groups and local governments petitioning to overturn the ban were joined by the measure's sponsors and Attorney General Jerry Brown in urging the Supreme Court to consider whether Proposition 8 passes legal muster.
The initiative's opponents had also asked the court to grant a stay of the measure, which would have allowed gay marriages to begin again while the justices considered the cases. The court denied that request.
The justices directed Brown and lawyers for the Yes on 8 campaign to submit arguments by Dec. 19 on why the ballot initiative should not be nullified. It said lawyers for the plaintiffs, who include same-sex couples who did not wed before the election, must respond before Jan. 5.
Oral arguments could be scheduled as early as March, according to court spokeswoman Lynn Holton.
"This is welcome news. The matter of Proposition 8 should be resolved thoughtfully and without delay," Brown said in a statement.
Both opponents and supporters of Proposition 8 expressed confidence Wednesday that their arguments would prevail. But they also agreed that the cases present the court's seven justices - six of whom voted to review the challenges - with complex questions that have few precedents in state case law.
Although more than two dozen states have similar amendments, some of which have survived similar lawsuits, none were approved by voters in a place where gay marriage already was legal.
Neither were any approved in a state where the high court had put sexual orientation in the same protected legal class as race and religion, which the California Supreme Court did when it rendered its 4-3 decision that made same-sex marriage legal in May.
Opponents of the ban argue that voters improperly abrogated the judiciary's authority by stripping same-sex couples of the right to wed after the high court earlier ruled it was discriminatory to prohibit gay men and lesbians from marrying.
"If given effect, Proposition 8 would work a dramatic, substantive change to our Constitution's 'underlying principles' of individual equality on a scale and scope never previously condoned by this court," lawyers for the same-sex couples stated in their petition.
The measure represents such a sweeping change that it constitutes a constitutional revision as opposed to an amendment, the documents say. The distinction would have required the ban's backers to obtain approval from two-thirds of both houses of the California Legislature before submitting it to voters.
Over the past century, the California Supreme Court has heard nine cases challenging legislative acts or ballot initiatives as improper revisions. The court eventually invalidated three of the measures, according to the gay rights group Lambda Legal.
Andrew Pugno, legal counsel for the Yes on 8 campaign, said he doubts the court will buy the revision argument in the case of the gay marriage ban because the plaintiffs would have to prove the measure alters the state's basic governmental framework.
Joel Franklin, a constitutional law professor at Monterey College of Law, said that even though the court rejected similar procedural arguments when it upheld amendments reinstating the death penalty and limiting property taxes, those cases do not represent as much of a fundamental change as Proposition 8.
"Those amendments applied universally to all Californians," Franklin said. "This is a situation where you are removing rights from a particular group of citizens, a class of individuals the court has said is entitled to constitutional protection. That is a structural change."
The trio of cases the court accepted were filed by six same-sex couples who have not yet wed, a Los Angeles lesbian couple who were among the first to tie the knot on June 16 and 11 cities and counties, led by the city of San Francisco.