It would be very unwise for the U.S. Supreme Court to agree to hear an appeal over this issue, as it’s decision could ultimately invalidate DOMA and all other state constitutional amendments banning same-sex marriage.

I have read that this is already implied in the State Constitution which required that the state legislature, or a constitutional convention, be convened first in order to forward (by a super majority) any amendment to the state constitution for a public vote if such an amendment under consideration affects any substantial change to the basic structure of the state constitution.

The California Supreme Court has already ruled that homosexuals are a “suspect” or “protected” class of citizens under the state constitution. That ruling implies that the rights they share with heterosexuals are henceforth protected from public referenda as set forth by the California Equal Protection Clause in the California State Constitution.

In essence, it means that if laws were changed that either limited or expanded the rights of homosexuals then those changes in law, in effect, would also limit or expand the rights of heterosexuals. Proposition 8, if passed, would be in conflict with the California Equal Protection Clause as it exists today after the ruling. The California Equal Protection Clause would have to be re-written specifically to exclude homosexuals — this could only be accomplished by another state constitutional amendment which would first require a super-majority of the state legislators before being passed onto the people of California.

If passed, that would, no doubt, open the door to a challenge before the US Supreme Court, such as in Romer -v- Evans, where the court found the state of Colorado had violated the US Constitution’s Fourteenth Amendment’s Equal Protection clause when it passed Amendment 2 that declared that homosexuals could not even petition their elected representative for equal rights in the state. Animus is no justification for denying equal protection, the court ruled.

////”[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . .” Civil Rights Cases, 109 U. S., at 24. …We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.” ~ US Supreme Court Justice Kennedy wrote in Romer -v- Evans as the court struck down Colorado‘s Amendment 2.///

http://www.law.cornell.edu/supct/html/94-1039.ZO.html

So, Californians, how about adding something positive in the nature of advancing human rights for a change to the framework of the law? If a “Prop 9“, that clarifies the limits of public referenda, is voted upon it could serve to educate people. If it passes then it would further codify the law; if it fails, then that negative outcome would be moot, but it would still serve to remind people that “a provision against overturning fundamental rights by a citizens’ initiative ” already exists in the California State Constitution, and it cannot be changed by a public referendum.

It’s worth a try to make this clearer to future courts, and especially to put a finer point on it as it pertains to unremitting assaults on human rights caused by the hateful rabble-rousers out to poison the community well by seeking power at our expense and for their own profit. Unfortunately, bigotry is still a booming business both for unethical politicians and for immoral religions groups who pervert human decency for personal gain.

What will these manipulators of group-hate do when they don’t have the GLBT community to kick around anymore? I think that scenario frightens these sociopath miscreants to no end. We should all dedicate our lives to making sure that nightmare comes true for them.

~ Bud Evans

With such a low threshold for having a ballot initiative in California, the gays can easily gather the one million signatures needed to force another vote in a few years. Since most of the opposition to same-sex marriage comes from the older generations, it is merely a waiting game at this point.

Although I’d like to see the referendum process reformed, as long as we’re playing under these dreadful rules, then we might as well give the right-wing a taste of their own medicine. If Prop. 8 passes, I want to see measures to overturn it on the ballot every year until it is repealed.

I read all 172 pages of the CSC opinion of May 2008. They specifically wrote in it that reserved the right to strike down any law or any amendment which creates a conflict within the California Constitution.

They have already ruled that marriage is a basic right of the people, and rightfully ruled in favor of mariage for ANY 2 PEOPLE in California. A “basic right” cannot be overruled by law or amendment no matte rthe numebr of times this amendment is brought to the people for a vote.

If Prop 8 passes, it will create a conflict within the California Constitution, and they will again strike it down. They have already done so several times to amendments approved by the people of California. It will happen again.

The courts were specifically setup by our founders and the people of California to keep a “tyranny of the majority” from doing exactly what they are trying to do this time. “Suspect minorities” are protected by the courts above and beyond what the general public might try to do. They did a detailed analysis of the situation and they ruled appropriately in May 2008. They simply must wait for another law suit to be brought to them to AGAIN STRIKE DOWN a prejudiced and dicriminatory amendment.

Quote:
“It found that “equal respect and dignity” of marriage is a “basic civil right” that cannot be withheld from same-sex couples, that sexual orientation is a protected class like race and gender, and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution.”

That’s not precisely true. They can’t overturn Proposition 8 outright. But there’s still the “nuclear option” favored by some libertarians. That is, they can remove the State from the marriage business completely.

As with most anti same-sex marriage amendments, Proposition 8 only defines marriage in the State Constitution. It does not “authorize” marriage. Nor does it provide the “mechanism” by which marriages are given force. The legislatively approved Marriage Act – which was last amended in 1977 – does that. This difference may seem insignificant to those outside the legal establishment. But it actually means the high court does have some wiggle room. And since California is the only state where homosexuals are considered a suspect class, any law that discriminates against them are subject to a “strict scrutiny” review. Thus, the California Supreme Court can still find the Marriage Act of 1977 unconstitutional as civil officers cannot discriminate against homosexuals in solemnizing marriages (in effect nullifying everybody’s state sanctioned marriages).

But if they do that, it would probably trigger a constitutional crisis. Which is why it is called the “nuclear option.” I don’t think they’ll go down that route because it is too risky. It would also create a severe backlash within the federal government and perhaps even revive the fortunes of the FMA in Congress.