Prop 8 in California

[Archaea]

Originally Posted by Jeff Lebowski

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?

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.

[Jeff Lebowski]

Originally Posted by Archaea

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".

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.

[Archaea]

Originally Posted by Jeff Lebowski

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.

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.