A thought on California's Proposition 8...
It's been about five months since my last LJ post, and this one's kinda long. It's also got some legal stuff, so be warned!
The US Constitution, Article I, Section 10, states:
"No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."
Although I've seen comments about the "ex post facto" clause and how that may apply to Proposition 8, I'd like to look at the immediately preceding clause: "Bill of Attainder". This isn't a commonly-known term among the general public, but it is an important principle of law.
Historically, a "bill of attainder" referred to an act of the legislature that inflicted capital punishment to a named individual, bypassing the judicial system and the individual's right to a trial. There was another term, a "bill of pains and penalties", which referred to a similar act which did not involve the death penalty.
In 1866, however, the US Supreme Court wrote that "[w]ithin the meaning of the Constitution, bills of attainder include bills of pains and penalties" (Cummings v. Missouri, 71 U.S. 277, 323), thus merging the two terms into one as used in the United States. Thus, the term "bill of attainder" refers to "every legislative act which inflicts punishment without a judicial trial" (ibid., 287).
In 1943, the US Congress passed the Urgent Deficiency Appropriation Act, which provided additional funding for World War II. Included in the Act was Section 304, which singled out three individual government employees, stating that they were not to be paid after a certain date unless they were re-appointed by the President and confirmed by the Senate. These were individuals whom the House Committee on Un-American Activities found to be "subversive", and Congress decided that they would inflict the punishment of losing their government jobs without the benefit of a trial. The three men sued, and their lawsuits made their way through the courts.
The Supreme Court consolidated their cases as US v. Lovett, and found that the law was unconstitutional. The Court wrote that:
"legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution." (328 U.S. 303, 315-16).
To see if Proposition 8 qualified under this definition, we need to look at each part of the definition.
Is Proposition 8 "legislative ac[t]"? Although Prop. 8 was a voter-led initiative, and the State Legislature was not involved, I believe it does. The act itself has a legislative nature, and given the qualifier "no matter what their form", I believe that Proposition 8 does qualify as a "legislative ac[t]".
Does Proposition 8 apply to either "named individuals" or "easily ascertainable members of a group"? Yes. Actually, there are two groups affected, one more "easily ascertainable" than the other. By stating what will be "recognized" in California, the Proposition directly invalidates the formerly-valid marriages of some 18,000 couples. There are records of each of these approximately 36,000 individuals, so they are easy to identify. Also affected are people who would like to get married, and would have been able to, but cannot now. This group is much less easy to define, so it may be easier to focus on just the 36,000.
Does Proposition 8's nullification of existing marriages qualify as "inflic[ting] punishment"? I think forcing 18,000 couples into divorce is a pretty hefty punishment.
Does Proposition 8 take effect without a judicial trial? This one is a given, and doesn't even need to be argued.
Assuming my logic holds up, then Proposition 8 is a bill of attainder, and is invalid.
Therefore, even without bringing up "due process", "discrimination", "equal protection", etc., it can still be shown that California's Proposition 8 is invalid under the United States Constitution.
davidh