Prop 8 in California
 

http://www.latimes.com/news/local/la...,7225200.story

While I was not a supporter of Prop 8, I am very much against the CA Supreme Court overturning it. To me, that is a kind of judicial activism that negates all common sense.

Essentially declaring a constitutional amendment unconstitutional.

Maybe, it could be argued, it is too easy to change the constitution in CA. Fair enough. Change the way the constitution can be amended in the future.

I would be sympathetic to removing the justices who would vote to overturn the amendment.

The question is whether Prop 8 was a constitutional amendment or a constitutional revision. If it was a revision, the initiative process was the wrong way to get it passed. Thus, not judicial activism to enforce the provisions of the state constitution.

By the way, calling the California Supreme Court "activist judges" is a deception. Chief Justice George, who wrote the opinion in the marriage cases, is actually quite conservative. Although certainly more moderate than Utah judges might be, he is far from a liberal activist judge.

Any time you have a system wherein a simple majority on a referendum can modify the state constitution, the judiciary should review the outcome, IMO. How else are you going to protect the rights of the minority?

Some people can sit in their libraries with their pipes and explain the difference between an amendment and a revision, but to the average person with common sense there is no difference. A change is a change. And there will be hell to pay if they ignore it.

I hope the judges do what they think is right, under law.

I also hope the people hold the judges accountable.

I have said many times before- in today's nomenclature, "judicial activism" means a judge doing something you don't like.

Let's see how many conservative voices decry this court case as judicial activism.

IOW, majority rule trumps everything. Nice.

Gay rights movement is populated by some real fools.

Their tactics turn off people that would otherwise be inclined to support them. Gavin Newsome and his antics in SF. Trying to overturn Prop 8 in the courts.

Garbage. And you accuse me of reductionist nonsense? Heh.

So can SCOTUS rule the 2nd Amendment unconstitutional?

Can a future amendment to the constitution be ruled unconstitutional?

When the rule of law becomes this arbitrary, there is no rule of law.

California is already the shittiest state in the land. Dropping the rule of law will just be the icing on the cake.

I have not studied California's arcane processes, but without looking up the difference I have no idea what the difference between an amendment and a revision is. As long as California wishes to use the referendum process in current form, the justices should respect the voice of the majority as to the governing constitution, the foundational document.

Under law, words and definitions matter, Waters. A change may be a change, but it may not be an amendment.

I have never heard of the distinction before, because it just sounds like a way jurists may reject the will of the majority. So now we have a star chamber.

It's not like there hasn't been two separate elections on this very issue. Do we live in a democracy or not? Or shall every law the minority doesn't like just get taken to court, where all you need to convince is a handful of judges?

The LA Times article makes such distinctions seem to have precious little precedent, and is skeptical of such an argument. And if I read it correctly, Jerry Brown rejects the argument altogether.

Why do I feel like I am talking to Levin?

Elections can't overturn everything. You know that. This case will decide, in part, whether the rights of homosexuals can be removed by a vote of the people (effectively deciding if they are a protected class under California's Constitution). That isn't entirely clear. There is also a procedural aspect to the case which the judges will decide. There are several examples in history that even you would acknowledge involved a judge properly revoking the will of the people because their will was opressive/unconstitutional.

<crickets>

This is absurd, and you know it Cali.

It is one thing for a statute to be determined unconstitutional when it is viewed against the existing Constitution. That is what we expect of our highest reviewing jurists.

It is quite another thing for these jurists to declare that changes duly adopted are unconstitutional as compared to some nebulous "higher law" constitution, one unwritten except in the minds of the all powerful jurists.

They are creating bullshit out of thin air because they don't like the results of the elections to change the Constitution. Bullshit, but bullshit walks in California.

If California overturns a constitutional amendment, then California doesn't need an amendment process, it can just go to Mount Olympus so that their jurists can divine the law from the inards of its victims. If California does this, then there is no rule of law, and i vote for anarchy. Fuck California.

No, the 2nd Amendment cannot be ruled unconstitutional. And it wasn't adopted by a majority vote, either.

Against what standard? Is the constitution the highest law of the land or isn't it?

This is a "heads we win, tails you lose" situation. The anti-Prop 8 folks campaigned as if the proposition was legitimate prior to the election. They lost, and now they say it was an illegitimate revision of the Constitution.

Any legal argument will be used to achieve the desired ends. The lack of consistency shows there's no integrity in their legal reasoning or arguments.

Historically, when the highest law of the land usurps natural law, there are generally two means of recourse:

1. Bring new laws
2. Bring revolution

America is strong, but jurists doing things like this will cause some creaking in the joints.

If California does this, "there is no rule of law, and you vote for anarchy?"

Classic Arch-speak. Hyperbole, stacked on hyperbole, stacked on irrationality.

If there is no rule of law, the first thing you are going to do is "vote?" Good luck with that system of anarchy. :)

I am not intimately familiar with the legal arguments on either side, having not read their briefs. I would bet any amount of money you are even less familiar. Before you go grabbing your pitchfork and assault rifles, take a breather and read through the briefs first.

That's a nonsensical argument, it was adopted by the process in place at the time.

If California doesn't wish for majority modification of its state constitution then it should change the process, not overrule it because it hates the result.

Bad facts make bad law. If Opponents had thrown as much energy prior to the election, then they would have won and not have to worry about revealing their true lack of character. It's hard to have sympathy for folks who lack integrity.

Question: have you read the briefs of either side?

One can "vote" by means other than formal election. California deserves to become a wasteland. Fuck it all.

I've been involved in challenges of constitutional amendments in Nevada, and would read the arguments, but the practical review of what is going on is obvious. We lawyers are trained to manufacture bullshit, bad faith arguments when our clients lose something they didn't wisht to lose, and pay you enough money and you would argue in court that the LDS Church is the spawn of Satan.

Typically, you challenge the numbers of signatures to get it on the ballot, and I'm confusing for the moment referendum versus amendment, as I know there are procedural distinctions where one goes in front of the legislature and one does not. After verifying the sufficiency of the signatures, you examine the language and the explanations on the ballot.

However, if the process is correct, there really is no historical precedent for distinguishing between "amendment" and "revision." A distinction with no difference except the Courts wish to reject the will of the people.

Go ahead show me the actual caselaw, it won't change the practical review. It's bullshit.

If I am against gay marriage, I am ROOTING for the CA Supreme Court to overturn Prop 8.

Nothing will be better in mobilizing people against gay marriage as that.

"Look what they did in California. We need to make the laws against gay marriage in our states bullet-proof, what we have is not good enough."

Many states have already amended their constitutions. It appears that isn't good enough, because the gay marriage folks will just claim it wasn't a legitimate amendment. What else can they do?

We can appropriately dub this minority rule.

Change the state constitutions such that judges are more easily recalled, as an example.

In Texas, the supreme court is by election.

So I read a brief synopsis of what the arguments are.

A revision changes an existing provision and must first be approved by a two thirds majority of the legislature. I think this is the requirement for one of the two procedures in Nevada.

An amendment simply occurs by majority vote, after enough signatures are collected.

We have the initiative and referendum process in Nevada, and if i thought long enough I'd remember the distinction, but I believe it's similar to California's.


But what is a revision? If a vague provision is interpreted to apply, and an addition is made which states the will of the people, namely to add a provision identifying who gets the benefits of marriage, that sounds like an addition. Previously I don't believe California had marriage specific rights in its Constitution.

The whole distinction seems inane.

The purpose is that majority rule might be used to oppress a minority. The distinctions seem vague and difficult to apply.

As Levin pointed out, the opponents never claimed in their marketing it was a mere revision but rather it was a major addition and change.

Disclaimer: I am not an attorney so this is not my area of expertise.

Sincere question:

We seem to "rallying around the constitution" here. We are talking about the Calif. state constitution, not the US constitution. The US constitution can never be changed in this manner, so it makes senses that the rules would be different. If you believe that state-by-state voter referendums ("referenda"?) that change state constitutions should never be reviewed by the courts, how could the courts ever go about protecting minority rights?

That's a copout. When the issue is on the ballot, they have to campaign against it whether they believe it is legitimate or not. Any other strategy diverting energy away from mobilizing votes on the ballot would have been incredibly foolish.

First, to the extent minority rights are infringed upon by a state law or constitution, it is subject to review within the US federal court system. So there's that vital layer of protection.

Second, relying only upon an additional "layer" of protection, minority rights are protected by the state Constitution, but what you are asking is whether the state supreme court justices should stand above the state constitutions. That's weird. So the question is, what if the State Constitution does not infringe upon the US Constitution but infringes upon somebody's idea of minority rights? Well, that isn't necessarily unlawful and not the job of state justices to impose their idea of minority "rights". Their job is to look at statutes and state conduct to determine if they violate the state constitution, not to create pseudo rights directly contrary to the adopted constitution.

Thanks.

If this is such a blatant violation of the state/federal judicial process, then why has it gotten this far? The article implies that the current review is not such an extraordinary event.

On what grounds? I'm not opposed to protecting minority rights in principle, but there should be rules governing how that happens. Judges don't get to act independent of law just because they disagree with the majority.

California is just a weird, hokey state when it comes to judicial precedent. For the most part, aside from maybe community property precedent, it is ignored by the remainder of the country, although weird aspects do spin off from time to time.

It's not a violation of the federal process, but California has long been known for bastardizing the traditional plebescitic process. The Justices have long thumbed their noses at the State Constitution, long ago since Rose Bird did it.

You haven't provided any convincing evidence that they are operating outside of the law.

First, the justices haven't decided and may well decide it was untoward last grasp effort to overturn a vote which the minority really objected to. To file a lawsuit, all it takes is some ink, some paper and some money.

Second, if the justices act contrary to what appears "lawful", there is nobody to punish them or to correct them. So justices can make the unlawful, lawful.