Monday, March 02, 2009
Prop 8 Legal Battle Continues
When California's highest court agreed to hear several legal challenges to the state's new ban on same-sex marriage it refused to allow gay couples to resume marrying before it rules.
Three suits seeking to nullify the measure now before the court claim the initiative abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.
"The issue is not whether the prohibition of gay marriage violates the constitution," said Prof. Erwin Chemerinsky, the dean of UCI's law school.
Instead, he said, the questions before the California Supreme Court boil down to two issues.
If the initiative is a revision of the constitution, then it's invalid because that requires approval from two-thirds of both houses of the California Legislature before submitting it to voters.
"If it's a revision, then Proposition 8 is invalid and then we go back to having marriage equality in California," Chemerinsky said.
But if it's an amendment, then assuming it's valid the court then has to consider its affect on the 18,000 some gay marriages already sanctioned.
"If they uphold (the proposition), they have to decide whether it applies retroactively," said Chemerinsky, who has taken the position that the initiative is an unconstitutional revision.
Over the past century, the California Supreme Court has heard nine cases challenging legislative acts or ballot initiatives as improper revisions. The court eventually invalidated three of the measures, according to the gay rights group Lambda Legal.
Andrew Pugno, legal counsel for the Yes on 8 campaign, said he doubts the court will buy the revision argument in the case of the gay marriage ban because the plaintiffs would have to prove the measure alters the state's basic governmental framework.
Joel Franklin, a constitutional law professor at Monterey College of Law, said that even though the court rejected similar procedural arguments when it upheld amendments reinstating the death penalty and limiting property taxes, those cases do not represent as much of a fundamental change as Proposition 8.
"Those amendments applied universally to all Californians," Franklin said. "This is a situation where you are removing rights from a particular group of citizens, a class of individuals the court has said is entitled to constitutional protection. That is a structural change."
(OC Register 2/27/2009)
Three suits seeking to nullify the measure now before the court claim the initiative abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.
"The issue is not whether the prohibition of gay marriage violates the constitution," said Prof. Erwin Chemerinsky, the dean of UCI's law school.
Instead, he said, the questions before the California Supreme Court boil down to two issues.
If the initiative is a revision of the constitution, then it's invalid because that requires approval from two-thirds of both houses of the California Legislature before submitting it to voters.
"If it's a revision, then Proposition 8 is invalid and then we go back to having marriage equality in California," Chemerinsky said.
But if it's an amendment, then assuming it's valid the court then has to consider its affect on the 18,000 some gay marriages already sanctioned.
"If they uphold (the proposition), they have to decide whether it applies retroactively," said Chemerinsky, who has taken the position that the initiative is an unconstitutional revision.
Over the past century, the California Supreme Court has heard nine cases challenging legislative acts or ballot initiatives as improper revisions. The court eventually invalidated three of the measures, according to the gay rights group Lambda Legal.
Andrew Pugno, legal counsel for the Yes on 8 campaign, said he doubts the court will buy the revision argument in the case of the gay marriage ban because the plaintiffs would have to prove the measure alters the state's basic governmental framework.
Joel Franklin, a constitutional law professor at Monterey College of Law, said that even though the court rejected similar procedural arguments when it upheld amendments reinstating the death penalty and limiting property taxes, those cases do not represent as much of a fundamental change as Proposition 8.
"Those amendments applied universally to all Californians," Franklin said. "This is a situation where you are removing rights from a particular group of citizens, a class of individuals the court has said is entitled to constitutional protection. That is a structural change."
(OC Register 2/27/2009)
