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An Expert analysis of Prop 8 and its Challenges - WSJ
Another offering from E-08. There's a lot of good stuff posted there and I'm more than glad to give them credit and bring it over here so y'all don't have to thumb through the extraneous "stuff".
http://blogs.wsj.com/law/2008/11/07/unpacking-the-challenges-to-prop-8-a-qa-with-uscs-david-cruz/
Unpacking the Challenges to Prop. 8: A Q&A With USC?s David Cruz
We?ve been following the saga of California?s Proposition 8 rather closely since its passage on Tuesday (click here and here). The basics: California voters on Tuesday approved the initiative, which adds to the state constitution the following sentence: ?only marriage between a man and a woman is valid or recognized in California.?
While the wording is simple, the situation has quickly become complicated. One question: What happens to those same-sex couples who married prior to the ruling? Legal challenges filed on Wednesday raised other questions: Was the referendum process itself lawful? Does the new language conflict with other parts of the state constitution? Separately, should Prop. 8 opponents have filed challenges saying the proposition violated the U.S. Constitution?
To help sort through some of these questions, we chatted with David Cruz, a constitutional law expert at the University of Southern California.
Hi David. Thanks for taking the time. Frankly, we?ve been confused by much of what?s happened since Tuesday. For starters, could you help us understand the grounds upon which Proposition 8 is being challenged in court?
Sure. The three lawsuits [here, here and here] challenge the procedure by which the referendum was passed. Under California law, there are two categories of changes that can be made to the state constitution: amendments and revisions. Amendments are more minor changes; revisions are larger in effect. This is important because each has its own process for taking effect ? essentially different ways they go before the voters. An amendment can go in the form of a ballot initiative, which requires a certain number of signatures to make its way on. Constitutional revisions, however, have to have a two-thirds blessing from each house of the state legislature to make the ballot.
Now, the problem, at least from the point of view of Prop. 8 supporters, is that the legislature had previously indicated a willingness to support same-sex marriage. So the proposition?s supporters were unwilling to treat this [change] as a revision and send it to the legislature, opting instead to treat it as an amendment. The Prop. 8 opponents are arguing that this change actually constitutes a revision, not an amendment, and therefore needed to go through the legislature.
Why wasn?t all this figured out prior to election day?
There?s really no process by which a determination is made before the election. When the petition is submitted to the attorney general and secretary of state, it doesn?t get reviewed on whether or not it?s a revision. The signatures get examined and the summary of the proposed change is reviewed for accuracy.
These post-election ?writs? were filed with the California Supreme Court. Challenges on these grounds ? this ?revision or amendment? issue ? don?t need to go through lower courts first?
No. The California Supreme Court has wide latitude to hear issues directly, especially when the issues concern the state constitution.
Were any other issues raised in the suits?
Yes. A same-sex couple that was married before the election made another argument. Remember, the California Supreme Court in May ruled that bans on same-sex marriage were not allowed under the state?s constitution. [That ruling prompted Proposition 8.] In that ruling, the Supreme Court essentially said two things: that same-sex couples had a fundamental right to marry, and that the underlying law violated the state?s equal protection clause.
The suit filed Wednesday argues that while Proposition 8 squarely addressed the marriage half of the Supreme Court?s ruling, it didn?t address the equal-protection half. In other words, the couple argues that the state constitution is now in conflict with itself ? part of it says that same-sex marriage is flatly illegal, and the Supreme Court has interpreted another part to say that bans on same-sex marriage violate the state?s equal protection clause.
And a constitution can?t be in conflict with itself?
Right. There?s a common principle in constitutional jurisprudence called ?harmonization,? which says that no part of a constitution can conflict with any other.
Why haven?t there been challenges brought under the U.S. Constitution?
I think that the Prop. 8 opponents have largely wanted to shy away from the federal courts for fear that this issue would go up to a U.S. Supreme Court that might not be receptive to its arguments.
Provided that the state Supreme Court rejects all these arguments and the constitutional amendment is allowed, you still have this issue as to what happens to the marriages that took place before Proposition 8 was passed, right?
Right. And on that question, the state Supreme Court would likely look at what the intent of the voters was in passing the law.
How would the court determine that? By asking voters?
It would likely look at the language of the Proposition itself, in addition to the title, official ballot literature, and to the advertisements that were run during the campaign. Supporters of Proposition 8 point to language on the ballot that explained that voters would be defining marriage as between a man and woman, ?regardless of where or when performed.? That seems to argue for invalidating the earlier marriages. But the attorney general, Jerry Brown, will likely raise the official title of the Proposition, which mentions the elimination of the ?right of same-sex couples to marry.? Here, there?s no mention of the earlier marriages, and it seems to indicate that it?s the right to get married going forward that?s being taken away.
Great, David. Thanks very much for taking the time.
My pleasure.
(If you click on the link there are also some good comments below.)
Re: An Expert analysis of Prop 8 and its Challenges - WSJ
interesting, thanks! i'd read some things about the challenges, but it's good to have it explained a bit by someone who knows the law and the constitution.
so, jerry brown is going to argue to keep existing marriages legal by using the title of the proposition...that he named, correct? i do believe someone was thinking ahead...