Fun With Prop 8

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Well, DeJon explained my plight perfectly in a previous comment, but since I theoretically have a front row seat to this interesting matter, I should give it a shot.

My depth of research includes: (1) listening to my Contracts professor / Constitutional law scholar talk about it for thirty minutes yesterday morning, and (2) a little bit of Google. Oh, and catching two minutes of Dean Starr on CNN on a fellow student’s laptop between classes.

So here goes:

California’s Proposition 8 passed last November 52% to 48%. It was, in effect, an amendment to the state constitution, effectively reversing a California Supreme Court decision that it was unconstitutional to deny marriage licenses to same-sex couples.

[Note: It is my understanding that “domestic” partners in California have the same legal rights as “married” partners; thus, the practical effect of the Prop 8 dance is whether or not same-sex couples will be allowed to use the legal word “marriage” to define their relationship.]

Now, it appears that the chief argument before the California Supremes is whether or not California voters have a right to amend the constitution in a way that takes away previously-held rights. No, that’s not correct. It seems obvious that the state constitution “can” be amended to take away previously-held rights, but there appears to be a legal difference between “revising” and “amending” the constitution. A revision has been defined through a litany of case law as something that is a far-reaching change in the basic structure of government: constitutional revisions require approval by the state legislature, while an amendment does not.

Prop 8 speaks to rights, not government structure. Thus, amendment.

The only real counterargument to the revision/amendment debate is, Well, who says it has to speak to government structure? The only straight answer is case law. Therefore, the only judicial alternative to accepting Starr’s argument is to shoot out on its own and create a definition that just isn’t there. Wouldn’t be the first time, but doesn’t seem to be such a great idea either.

So, bottom line: our social contract theory of government is that the people determine the rules. And the people of California have spoken. They have properly amended the state constitution to remove the right of same-sex couples to use the legal word “marriage” to define their relationship. I think that is a sad outcome – one that I voted against. However, that’s the law.

Now, here is the good news. The people of California aren’t through speaking. My professor believes, as do I, that it is just a matter of time (and probably not that much of it) before the people will speak again. And Dean Starr’s argument will be quite useful then.

I would love it when that day comes if he would go to San Francisco and offer the same argument for the opposite side. That would surprise me a LOT, but I wouldn’t completely put it past him.

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6 Responses to “Fun With Prop 8”

  1. alsturgeon Says:

    To Mikey’s “inalienable” mention on the previous comment thread, Dean Starr (or someone on his team) made the smooth word choice and talked of the “inalienable” right of the people to make the rules. Under our social contract theory of government, that really is an “inalienable” right.

  2. DeJon05 Says:

    On this issue (and most legal issues, really) I’m something of a troglodyte.

    But I am starting to understand that getting to the right answer with a constructive definition or some other legal short cut often creates a precedent that will surely be used to reach a not-so-right conclusion down the road.

    So while I think it is shamefully obtuse of the morally conservative to assert that extending marriage rights to same-sex couples some how erodes heterosexual marriage, I more leery of the long-term consequences of overruling the majority vote of the people… not matter how sane the rationale. That doesn’t guaranty that the rationale for such a move in the future will be quite so sane and logical.

    Maybe my thoughts are shallow, but some times preserving the appropriate legal precedent is more important than reaching the right policy outcome.

  3. Michael Ejercito Says:

    Prop 8 speaks to rights, not government structure. Thus, amendment.

    In previous discussions that I have read on this issue, all of the case law seems to favor Prop. 8 being a legitimate amendment.

    Maybe my thoughts are shallow, but some times preserving the appropriate legal precedent is more important than reaching the right policy outcome.

    Of course.

    If an initiative amendment is passed that amends Section 7.5 of Article I to read, “Only marriage between two persons regardless of gender shall be valid or recognized in California”, then it is a legitimate under current case law.

  4. urbino Says:

    See? I knew I didn’t know enough (anything) about California law to hazard a post on this subject.

    All the above makes sense, with just one question. The CA constitution (and case law thereon) presumably lays out a procedure for amending that constitution. I gather the constitutional provisions allow for amendment by simple majority?

    That’s the part that seems weird, and is relevant to this:

    the “inalienable” right of the people to make the rules. Under our social contract theory of government, that really is an “inalienable” right.

    Sure. But, in the American constitutional tradition, the people usually set themselves a super-majority standard for changing the basic rules of the system. In the case of the U.S. constitution, yes, the people have the inalienable right to change it if they want; even revoke rights guaranteed therein. But it is very doggone hard to do it. The overwhelming majority of the people have to be in agreement on it.

    That doesn’t seem to be the case with the CA constitution, which just strikes me as odd. But, then, CA’s system of public referenda is known to be odd in general, so maybe I shouldn’t be surprised.

  5. alsturgeon Says:

    Yeah, we’re all eat up with odd out here in California.

    “An amendment may be placed on the ballot by either a two-thirds vote in the California State Legislature or signatures equal to 8% of the votes cast in the last gubernatorial election, among the lowest thresholds for similar measures of any U.S. state. As of 2008, this was 694,354 signatures.” (Wikipedia)

  6. urbino Says:

    Well, there you go. I never realized Hollyweird Elites were such populists at heart. It’s counter-intuitive as can be.

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