Tuesday, May 26, 2009

In Re to CA and The Movement: Hold You Heads Up


"Promising equal treatment to some is fundamentally different from promising equal treatment for all... Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment." - Justice Moreno, the lone dissenting opinion on the Prop 8 Case

Today is a sad day for California, but not the end of our movement. While California is a set back, it is times like these that we need to realize that we will not get every state, every heart and every mind that we fight for.

The California Ruling is disappointing. It is sad anytime a suspect class can have their rights taken away by a majority vote. It undermines our republic form of democracy.

The first question was is Prop 8 an amendment or a revision. An amendment is an addition to while a revision is changing something that is already in the constitution. A revision require the legislature and amendment does not. Therefore, it it had been a revision, then it would have to go to the legislature. The CASC (CA Supreme Court) said the following:
As we shall see, our state’s original 1849 California Constitution provided that the Legislature could propose constitutional amendments, but that a constitutional revision could be proposed only by means of a constitutional convention, the method used in 1849 to draft the initial constitution in anticipation of California’s statehood the following year. Thus, as originally adopted, the constitutional amendment/revision dichotomy in California — which mirrored the framework set forth in many other state constitutions of the same vintage — indicates that the category of constitutional revision referred to the kind of wholesale or fundamental alteration of the constitutional structure that appropriately could be undertaken only by a constitutional convention, in contrast to the category of constitutional amendment, which included any and all of the more discrete changes to the Constitution that thereafter might be proposed.
Later Adding:
Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws. ... we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision. As a quantitative matter, petitioners concede that Proposition 8 — which adds but a single, simple section to the Constitution — does not constitute a revision. As a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment.
The second question was if a suspect class can have their rights taken away by a ballot initavtive. The court said the following:
Petitioners contend, however, that even if Proposition 8 does not affect the governmental plan or framework established by the state Constitution, the measure nonetheless should be considered to be a revision because it conflicts with an assertedly fundamental constitutional principle that protects a minority group from having its constitutional rights diminished in any respect by majority vote. Petitioners, however, cannot point to any authority supporting their claim that under the California Constitution, a constitutional amendment — proposed and
9 adopted by a majority of voters through the initiative process — cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision.
And Later:
The Attorney General, in his briefing before this court, has advanced an alternative theory — not raised by petitioners in their initial petitions — under which he claims that even if Proposition 8 constitutes a constitutional amendment rather than a constitutional revision, that initiative measure nonetheless should be found invalid under the California Constitution on the ground that the “inalienable rights” embodied in article I, section 1 of that Constitution are not subject to “abrogation” by constitutional amendment without a compelling state interest. The Attorney General’s contention is flawed, however, in part because, like 11 petitioners’ claims, it rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7. As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .” (Marriage Cases, supra, 43 Cal.4th at p. 781), such as the right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within that family.
The final question was if marriages performed before Prop 8 would still be valid. The CASC said yes:
Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state.
What is left to question are out-of-state marriages performed in other states before Prop 8 passed be legally recognized?

While California is one big loss, it is just that, One big loss. Remember the following:
Four states -- Connecticut, Maine, Massachusetts and Iowa -- allow same-sex marriages. A Vermont law making such marriages legal will take effect in September.

On May 6, same-sex marriage became legal in Maine as Gov. John Baldacci signed a bill less than an hour after the state Legislature approved it.
We are gaining ground in other areas. While the decision is disappointing in California, it is not the end. We can still have another ballot initiative. Once it passes, Same-Sex marriage will be legal in California once again.