CA Supreme Court to Hear Prop 8 Arguments
March 4, 2009
Tomorrow morning, the California Supreme Court will hear oral arguments regarding several cases brought to overturn Prop 8, the CA constitutional amendment/revision passed last November that removed the rights of gays and lesbians to be married in the state. Also at stake are the 18,000 same-gender marriages that were legally formalized in California between June and November 2008. A suit has been brought to invalidate all of those marriages, effectively divorcing 36,000 people in one day.
CA Attorney General, who supports the return of gay and lesbian civil rights, released a statement today at The Huffington Post (excerpted here):
The case touches the heart of our democracy and poses a profound question: can a bare majority of voters strip away an inalienable right through the initiative process? If so, what possible meaning does the word inalienable have?
In 2008, the California Supreme Court was faced with the question of how the values enshrined in Article I apply to same sex marriages. It concluded that the concept of “liberty” includes the right to form the enduring relationship called marriage and that no compelling interest justified denying this right to same sex couples. Just like the right to be free from discrimination in housing, citizens have the right to be free from discrimination in state-granted marriage licenses.
In addition to Brown’s reasoning, there is another case to be made for striking down Prop 8, one that has to do with procedure unique to the CA constitution. I’m no law-talkin’ guy, but it seems to have some weight to it. The issue is whether Prop 8 qualifies as a constitutional amendment or a constitutional revision. With thanks to Timothy Kincaid of the Box Turtle Bulletin:
An amendment needs only signatures of 8% of the voters (who voted in the last gubernatorial election) and a majority vote. A revision requires approval by two-thirds of each house and a majority vote of the populace.
As Proposition 8 was not (and would not be) approved by two-thirds of the legislature, a determination that it is a revision effectively kills the effort.
This issue is of enormous significance, and not just to gay Californians. In Re Marriage Cases did more than grant marriage rights; it set sexual orientation as a suspect classification. Regardless of one’s “opinion” or what one “feels” about the history of discrimination against various groups, in the State of California sexual orientation is now treated with the same consideration as race or religion.
Whichever way the Court decides this question, precedent will be set. The answer to this question will determine whether a small selection of signatories can, with a simple majority vote, remove a fundamental right from a suspect class.
In other words, if the Court finds that Proposition 8 can remove from gays the right to marry, then here forward nothing in the California Constitution bars future amendments from denying, for example, African Americans the right to procreation or Mormons the right to own property. And while such propositions may be unenforceable due to federal constitutional protections, they could sit as a part of our governing document for the state. If fundamental rights can be removed from suspect classes by popular vote, then there really are no minority protections at all coming from the state constitution.
According to the LA Times, the CA Supreme Court’s decision may already be made and may be released as soon as tomorrow.
