With lots of research I guess. Probably will cost the state tons of money. I can’t see them invalidating those marriages anyway.

“It’s always hard to read tea leaves, but I think Justice Kennard is saying that she thinks the constitutionality of Prop. 8 is so clear that it doesn’t warrant review,” said Stephen Barnett, a retired UC Berkeley law professor and longtime observer of the court.”

Same cite.

http://www.sfgate.com/cgi-bin/.....#038;tsp=1

Prop. 8 issues

Issues in the Proposition 8 cases before the state Supreme Court:

– Does Prop. 8 make such a far-reaching change to the California Constitution that it amounts to a constitutional revision, which requires a two-thirds vote of the Legislature to be placed on the ballot?

– Does Prop. 8 violate the constitutional separation of powers by restricting judges’ authority to protect the rights of same-sex couples?

– If Prop. 8 is constitutional, does it invalidate the 18,000 same-sex marriages that took place in California between June 16, when the court’s ruling legalizing gay and lesbian unions took effect, and the Nov. 4 election?

http://www.sfgate.com/cgi-bin/.....#038;tsp=1

NAACP
http://equaljusticesociety.org/prop8/

Additional Analysis
http://www.beyondchron.org/new.....temid=6292

You maybe right with your conclusion, but one think I am certain of is your opinion on that is not relevant to me. I compare my understanding to people I know are working in the area of civil rights law- you know again the NAACP Legal Defense fund, and I note that my arguments are identitical to theirs. I read the petitions. I am guessing you did not.

and, as someone in the gay rights movement, I can tell you this conversation is not sheer sophistry for me either. tomorrow I’ll go to work and make change. what will you do?

You are asking me if they had in fact used the correct process then would I argue they had not? The answer is no. I would not argue that. I am not a sophist. I am trained as a lawyer, and that means something to me. This is not a means to an ends discussion for me like it is with a Christian/right wingnut.

The fact is regardless of the gay issue I would feel this way because I do understand separation of powers and the history of equal protection analysis. Why it exists. Who is suppose to administer it. This is why I actually found both the Council of Church’s petition and the petition by the NAACP Legal Defense Fund so compelling regarding overturn 8.

Gay rights is a happy benefit,b ut its not the central thrust. If the revision process had been used, and the amedment passed, I would have advocated a political process.

But the reason that question is retarded is primarily because- that’s not what happened. You are asking a hypothetical about which I have already said that’s why I view this as a separation of powers question.

Its not like separation of powers even at the federal level can not be changed. its more like, again , there is a correct way to do that. If you do not do that proces- which has at its base the point of real deliberation versus what happened in Prop 8′s lead up, then you should be required to do so.

If after this the Yes on 8 are able to gain what they want through revision. Fine. I won’t like it. but I would advocate a diferent strategy than super majority (which again is designed actually to make the process of taking away rights and changing fundamental structures conservative and rare). THis is that way for a reason. Mob rule. Short term thinking. Etc. All the things the framers worried about.

I have yet to hear a compelling argument given the broadness of the application that would occur if this basic equal protection analysis is overturned without the proper procedure. I see these procedures as protections built into the system to properly protect the minority but also make sure you balance the majority. Remembere all that is really required here is a majority much larger and thus theorectically much more deliberative than the one which decided Prop 8. Its not a perfect approach but over the course of our history it has tended to yield better results.

By the way, Dave’s point is that if the Court were just trying to avoid a technicality of 3 percent , when they knew that Proposition 8 was going to be decided in the Fall, then that would be a pretty big failure on their parts as officers of the court to perform their jobs properly. I am not saying which way they will go in this case. I am however saying their prior ruling, and its language offers a hint as to who they believe controls equal protection in term s of both history, precedent and struture of CA’s constitution.

Answer me this and then we’ll settle our difference:

If the voters had properly revised the constitution to include prop 8, would you still raise your argument, or not?

The question is whether the voters were in allowed to make this the decision the way they did in the first place? You can not answer that by saying- but they did vote. The question is whether they had the power to use this procedure in this way?

did they use the right process? to answer that question the court is taking a step back to ask who is responsible for making the decision? the courts or the voters? if the voters, then how are they suppose to do it?

the first question is the separation of powers question. to answer that you must decide who is responsible for equal protection. the voters or the courts? do you see how this is seperation of powers? think of the voters here acting as a kind of legislature (in effect what the iniative process is). again civics 101. can the voters acting as legislature change the power of the courts by the process they used?

a law or amendment is not valid if its not the correct process. For example if someone were to say that they passed an amendment to the U.S. Constitution, but they did not go through the correct process as required by the Constitution- then it wouldn’t be an amendment. the same is true here. You are getting caught up in “the process is right because the process happened.” That does not make it the right process no more than a majority vote would make an amendment to the US constitution valid if it were passed by the wrong process.

It goes to the heart of what would fundamentally change the documents meaning because by passing Prop 8- the question is did you usurp the Courts role? Its a hard question given CA’s system. It’s also a novel one.

You and others are actually engaged in the sophist’s argument. Remember there re two processes here that could have been used to pass this. You are saying because it was voted on by amendment that’s the right approach. Whereas, the Court asking- was it an amendment if the right approach was not used. By using the wrong process did they usurp the power of separately given to the Courts.

You assume that the right approach was used. They do not. See the difference?

So the separation of powers argument is only important insofar as it goes to the revision/amendment distinction, and I don’t think has independent effect. Plus, why would the court go there (i.e., why would the court reach for the argument that equal protection could neither be amdended NOR revised), when it has an easier, more palatable argument sitting there?

Here’s hoping for March weddings.

What’s more interesting to me is the question presented. The justices didn’t have to choose the separation of power argument. I haven’t read all the briefs closely, but that wasn’t something that was particularly focused on by any of them. In itself, that argument doesn’t point to overturning Prop 8. But if the justices decide that Prop 8 does in fact alter the separation of powers in the California Government, then Prop 8 is a revision and not an amendment.

Quite a hint.

One thing I’ve read elsewhere is that Kennard likely wanted the question of the legality of Prop 8 to be sent to lower courts first, except to the immediate issue of what to do with the marriages already granted.

yeah, and it started in the ancient world, didn’t it?
you have a right to be frustrated, but have some perspective.
plus, compare Our live to those of american Blacks in the 50s south.
they had almost *no* rights in practice – We have literally *every* right save one (set of rights)…
i think all the organized, positive demonstrations have been great, but you know, dry your tears and keep your eyes on the prize.

4 – 1 = 3 Justices

This “recall” stuff is the worst…I hope every one of those conservative judges determines prop. 8 to be invalid. Are they going to recall every one of them? You’d think this recall business would make the judges even more determined to do the right thing.

Another pathetic example of bullying from the moral(ly corrupt) majority…

It means there’s a better chance than if they didn’t hear the case :)

This one seems like it would really depend on how courageous the court is. They’d have to in essence create a new law that says a majority can’t rescind a minority right by amendment. May’s ruling shows that they may indeed be brave enough to do the right thing.

Thanks!