Subscribe to Breaking NewsRuby-Sachs: On the Proposition 8 litigation
Today, Liberty Counsel asked the California Court of the right to intervene in the Proposition 8 challenge. Their basis: the decision of the Court will affect the campaign for gay marriage and the right of the people to amend the Constitution through popular vote.
If the Court decides to allow their intervener status, they will be validating the false notion that straight people and religious people somehow have an actual stake in the marriage or non-marriage of other individuals.
However, if they are not granted status, the practical fact that 35 million dollars were poured into a campaign to invalidate gay marriage and those monies were raised by a group of religious, straight people and the measure won by that campaign is at risk, will be ignored.
If the Court does overturn Proposition 8, it might be better for all of us if those who sought to pass the measure are present in the courtroom and had a chance to defend their actions.
But overturning Proposition 8 is unlikely. We need to prove that it is a revision, not an amendment. At the end of the day, even if the proposition is inconsistent with one decision by the California Supreme Court, it does not have a widespread effect on the Constitution as a whole.
It’s just our marriage rights that are taken away. It’s just us, gays and lesbians, who are affected. The whole amendment is only fourteen tiny words in a large document.
Revisions to Constitutions are large changes (like adding 21 000 words) or changes that effect more than one other section of the Constitution.
Asking the California Supreme Court to ignore a popular vote based on the assertion that Proposition 8 is somehow a revision is not likely to succeed. There would just be too much backlash against the judicial branch.
At the same time, it is a legal challenge that should succeed.
The Constitution of California, right now, contradicts itself. It provides equal protection for LGBT people and then specifically denies that protection. This kind of enshrined discrimination undermines the credibility of the document as a whole.
If the United States’ Supreme Court had any decency, any courage, it would have already interpreted the Federal Equal Protection clause to include LGBT people. Then amendments like this could not stand, in California, Florida, Arizona or any other state that decides to take a step backwards in the fight for civil rights.
Professor Gaudard could you expound upon your opinion for those of us whom have little legal background explaining why you feel Prop 8 could and should be overturned by the California Supreme Court? It seems there is considerable disagreement in the legal community which makes it problematic to follow. I’d be interested in hearing more of your opinion.
Oopps…forgot: that Yale or Harvard Prof. of History was John Boswell.
And, something I fond VERY hypocritical are those “Christians” that claim, when they vote for such anti-Gay legislation that they (allegedly) *don’t* hate gay people! Who are they trying to fool?!
I have never understood why our Christian religious oppressors incist on purposefully blurring the lines between marriage as “civil law”, and one based in terms of religion! What’s so hard about that? Such legislation (and its supporters) declare they are only seeking to defend the “Traditional definition of marriage”. But, whose marriage are they talking about? One woman I heard commenting about the issue stated that its what “God” wants, because the Bible says marriage is reserved only for a man and a woman. However the Bible is silent regarding any suchy claim! Also, if they were REALLY seeking to defend “Traditional Marriage”, then they should REALLY start advocating for marriage as a contractual obligation where one’s parents chose the eventual spouce for their child and paid a “bride price” to the groom’s family. Also, Harvard (or was it Yale?) Prof. of History found evidence for the early-modern Church actively solemnizing marriages between two men.
This also opens up another question: What about non-Christians and atheists? They never seem to be considered in such actions of religious oppression of a minority. Many Pagan cultures throughout antiquity allowed men to marry other men; and in many tribal societies they were highly prized as a spouce and a shaman! I, myself, am a contemporary Pagan-Witch and ordained Clergy within the state of Iowa. And, as a result, such legislation prevents religions with no religious taboos from marrying Gay people to act out their own religion! Again, this comes down to Christanity’s unability of tollerating any non-Christian views! Why can other religions that support Gays’ rights, also, not be allowed to do so? Moreover, why do so many of our Legislators (usually Republiscums, such as my own representative: Steven King) refuse to take such into consideration, and turn a blind eye to these issues? Sad, really.
Ruby-Sacks saids:”The whole amendment is only fourteen tiny words in a large document (and not a revision). Revisions to Constitutions are large changes (like adding 21 000 words) or changes that effect more than one other section of the Constitution”
Uh, really? So an amendment that that outlawed the marriages of “heterosexuals” (in just a few words), but allowed it for homosexuals would not be a “revision” of the Equal Protection Clause of the California Constitution, eh?
Emma Ruby-Sachs: I have a hypothetical for you. California Supreme Court has held that freedom of speech is a fundamental right (just like marriage). They have also held that gender is a suspect class (just like sexual orientation). Are you suggesting that California voters could pass an “amendment” to the Constitution that would prohibit freedom of speech to women while allowing it for men?
Separate but equal? I don’t think that is allowed re Brown v, Board….
“The whole amendment is only fourteen tiny words in a large document.”
Why would the number of words determine this?
If the Proposition had been worded just to ban Mormons.. or Lutherans from marrying, they could have used 3 or 4 words to accomplish it.
Oh Bud, I’m so waiting for Obama’s appointments to the Supreme Court. I’m waiting for people to make excuses about the people that he will be appointing.
WAIT FOR THE OBAMA APPOINTMENTS TO THE US SUPREME COURT!
Bud Burgoon-Clark
San Diego CA USA
2nd-class citizen, no thanks to the
Konservative Kristianist Kultist Krazies
(KKKK)
the simple fact is that somewhere in some law we are all protected BUT we cannot take this to the federal level at this time (from what i understand) because guess what the judges appointed by Mr. Bush are leaning waaaay right that is ultimately the only way we are going to solve this issue because religious groups are allowed to insert their beliefs on the secular Americans with no consequences
Ruby:
I think Prof Gaudard says it pretty well. Not to come down hard on you or anything but the fact is the damage to the CA constitution is HUGE if the CA supreme court lets it stand. This is first year law school stuff. At the end of the day the courts would be issuing a precedent that allows equal protection to be subverted by the referendum process. I’m just curious how this thing was even allowed in the first place considering that could be the outcome. What’s next? A referendum to make racial profiling the law of the land? A referendum abolishing the mormon church in CA? (actually, not such a bad idea)…a referendum changing the voting age to 25?
The court has to come down on the side of fairness and equality, otherwise civil rights and minority rights in CA will be completely abolished…
And where did you go to law school? Was it accredited? Did you practice or even pass the bar? You seem really uninformed to comment on legal issues. Maybe just inexperienced? I’d do some basic research before you spout off.
Emma Ruby-Sachs,
So why not get creative. I am a law school graduate studying for the bar as we speak and I have read the legal pleadings. If what you say is true then why not find another door that gets at the matter and take it up to the United States Supreme Court?
I really do not see why a gay couple whose religious beliefs require them to be married. Why not claim a violation of the 1st A’s free exercise of religion….I think the arguments under this challenge would get at the heart of the matter….whose religious freedoms do we as americans allow? All or just some.
What will two attorneys and a buck get ya?
A cup of coffee at McDonald’s.
Professor Gaudard, I am a lawyer, have read the pleadings and am making observations that have been echoed by law professors across the country. Please see:
http://michaeldorf.org/2008/11/revision-or-amendment.html
http://www.stephenbainbridge.com/punditry/comments/proposition_8_passes_what_now/
Obviously you have not read the pleadings in the case and are not a lawyer. I would suggest you talk to a lawyer who has read the pleadings before you pontificate on whether or not Prop 8 is a revision or an amendment. It is abundantly clear that this is a revision, and the Supreme Court should have no problem overturning Prop 8 which is identical in wording to Prop 22 which they overturned in the In re Marriage Cases.