Photo courtesy of Ashley Swearengin
Proposition 8, the controversial ballot measure that would eliminate the right of same-sex couples to marry, held a narrow lead on Election Night.
With 38.7 percent of the state̢۪s precincts reporting, Prop. 8 was winning, according to the Secretary of State Web site. As of 11:12 p.m., there was 52.8 percent voting yes and 47.2 percent voting no.
Fresno State political science professor Jeff Cummings said that whatever way the proposition goes, the result would show the importance of marriage in California.
“If it passes, it shows how passionately a majority of Californians feel about gay marriage,â€Â Cummings said.
A similar proposition was approved in 2000 and then later overturned by the State Supreme Court. Cummings said if the initiative passed this time, the only way it could be challenged would be by the U.S. Supreme Court.
“It cannot be thrown out again,â€Â Cummings said. “If it passes it will become part of California’s constitution.â€Â
Students interviewed at Fresno State on Tuesday seemed most interested in the outcome of Prop. 8.
Ryan Tubongbanua / The Collegian
Fresno State student Kyle Sunderland, a kinesiology major, said it would be interesting to watch how the voting turned out for the controversial issue.
Sunderland said that since a ban was passed in 2000 and then later overturned, the latest vote would show if people̢۪s opinions have changed on the issue.
“I think it will show the mind-set of California,â€Â Sunderland said.
Elvis Martinez, a plant science major, was in favor of Prop. 8.
“I liked the way it was before,â€Â he said.
Proposition 1A splits voters
Among the other closely watched ballot initiatives, Proposition 1A had voters split statewide.
Prop. 1A, if passed, would approve $9.95 billion in bonds to fund the first part of a high-speed passenger train system, eventually connecting San Francisco and Los Angeles.
With 38.7 percent of the state̢۪s precincts reporting, Proposition 1A was narrowly winning, according to the Secretary of State Web site. As of 11:12 p.m., there was 51.1 percent voting yes and 48.9 percent voting no.
Kenneth Hansen, a political science professor at Fresno State, said that if the proposition were offered six months ago, it would have been a different story.
“When times are good, people are feeling generous and vote for them,â€Â Hansen said.
“When the economy is doing bad, [the bonds] tend to get defeated.â€Â
Hansen also said that he believes that people in California will really be missing out if the prop isn̢۪t passed.
“To not have it is really a drag on the economy,â€Â he said.
Proposition 2 takes big lead
Proposition 2, which would require that farm animals̢۪ enclosures have enough room for them to sit, stand, stretch, lay down and walk around, took a strong lead Tuesday night.
With 38.7 percent of the state̢۪s precincts reporting, Proposition 2 was strongly winning, according to the Secretary of State Web site. As of 11:12 p.m., there was 62.5 percent voting yes and 37.5 percent voting no.
Although this proposition at first glance may seem to be one of “equal rightsâ€Â to farm animals, many agriculture experts disagree with it.
Michelle Ganci, who teaches poultry production at Fresno State, said that if the proposition passed it would be a great disservice to local family poultry ranchers, who she said make up 99 percent of local production.
“We have the safest food in the world right here with people that know the safety issues,â€Â Ganci said.
Furthermore, Ganci said that in California there are approximately 19 million egg-laying hens that produce 5 billion eggs annually, two-thirds of those Californians consume.
“My life is about animal health,â€Â Ganci said. “Tell me how I can get 5 billion eggs annually if they are mistreated, ill and/or sick?â€Â
Swearengin leads mayoral race
Ashley Swearengin led the race for mayor of Fresno late Tuesday. With 78 percent of precincts reporting at 10:15 p.m., Swearengin had 55 percent of the vote while challenger Henry T. Perea had 44.8 percent, according to the Fresno County clerk.
As voters lined up around the block near the Fresno County Clerk̢۪s office downtown to cast their ballots Tuesday night, supporters of Swearengin and Perea occupied the street corner nearby.
Perea stood among his supporters, waving and greeting passersby. Fans of Perea honked their horns and shouted to show their support.
Although Swearengin̢۪s supporters were among the crowd, Swearengin was busy making last-minute phone calls, according to Cathe McCall, Swearengin̢۪s scheduler.
Additional reporting by Josh Butters and Adam Criswell.
John K. • Nov 19, 2008 at 11:38 am
The problem with that analysis is that it ignores the fact that fundamental rights are not ABSOLUTE, the are just subject to strict scrutiny. That means that they cannot be infringed upon unless the government can show a “compelling state interest” it has in mind and that the infringement is “narrowly-tailored” to achieve that compelling interest. The California Supreme Court conducted this analysis in In re Marriage Cases, but to summarize, if the compelling state interest is encouraging long-term good social outcomes and proven social stability to the benefit of children, does a ban on gay marriage achieve those goals? The Court relied on the evidence on the record, which included studies and testimony of experts on the subject that all confirm that same-sex marriage does no harm, and that witholding it actually DISADVANTAGES families and children. That means, the ban is not narrowly-tailored to achieve the goal, thus the ban must fall.
The question then becomes, is there a compelling reason to institute a ban on polygamy and incest? My preliminary response is yes because I believe studies show that group dynamics change things dramatically, and I’m aware of no studies that show children of polygamous relationships are just as well off as children of two-person relationships. If such studies existed, then perhaps there WOULDN’T be a compelling state interest in banning polygamy. You might still run into problems with doling out benefits to more people in some families than others, which might raise another equal protection question as far as the benefits go, but as far as calling the relationship marriage, perhaps not.
Same goes with incest. As far as I’m aware, the children of incestuous relationships are much more likely to have birth defects. Not to mention that restrictions based on familial relationship only foreclose a miniscule number of persons from marrying each other. The ban does not have the far-reaching affect of stopping me from marrying millions of people. But again, this should be debated on its merits based on the same standards, but separate from the question of same-sex marriage.
John K. • Nov 19, 2008 at 6:38 pm
The problem with that analysis is that it ignores the fact that fundamental rights are not ABSOLUTE, the are just subject to strict scrutiny. That means that they cannot be infringed upon unless the government can show a “compelling state interest” it has in mind and that the infringement is “narrowly-tailored” to achieve that compelling interest. The California Supreme Court conducted this analysis in In re Marriage Cases, but to summarize, if the compelling state interest is encouraging long-term good social outcomes and proven social stability to the benefit of children, does a ban on gay marriage achieve those goals? The Court relied on the evidence on the record, which included studies and testimony of experts on the subject that all confirm that same-sex marriage does no harm, and that witholding it actually DISADVANTAGES families and children. That means, the ban is not narrowly-tailored to achieve the goal, thus the ban must fall.
The question then becomes, is there a compelling reason to institute a ban on polygamy and incest? My preliminary response is yes because I believe studies show that group dynamics change things dramatically, and I’m aware of no studies that show children of polygamous relationships are just as well off as children of two-person relationships. If such studies existed, then perhaps there WOULDN’T be a compelling state interest in banning polygamy. You might still run into problems with doling out benefits to more people in some families than others, which might raise another equal protection question as far as the benefits go, but as far as calling the relationship marriage, perhaps not.
Same goes with incest. As far as I’m aware, the children of incestuous relationships are much more likely to have birth defects. Not to mention that restrictions based on familial relationship only foreclose a miniscule number of persons from marrying each other. The ban does not have the far-reaching affect of stopping me from marrying millions of people. But again, this should be debated on its merits based on the same standards, but separate from the question of same-sex marriage.
Robert • Nov 11, 2008 at 8:57 pm
“I don’t know, how about you tell me?”
Well I think we have to look at why the state even cares about marriage / social order in the first place. Why does the state recognize opposite sex marriages? I think they do because of the long-term social outcomes, the proven social stability and benefit to children. This would indicate to me that government recognition of marriage is a privilege that is granted based on the merits of these unions.
In that case we are not dealing with fundamental rights and we have to look at the merits of government recognition of these private unions. Issues of merit are decided by the legislature and people of California as they are judgement/opinion issues. If marriage is a fundamental right then it would logically follow that group marriage, incest marriage, etc could not be denied.
Robert • Nov 12, 2008 at 3:57 am
“I don’t know, how about you tell me?”
Well I think we have to look at why the state even cares about marriage / social order in the first place. Why does the state recognize opposite sex marriages? I think they do because of the long-term social outcomes, the proven social stability and benefit to children. This would indicate to me that government recognition of marriage is a privilege that is granted based on the merits of these unions.
In that case we are not dealing with fundamental rights and we have to look at the merits of government recognition of these private unions. Issues of merit are decided by the legislature and people of California as they are judgement/opinion issues. If marriage is a fundamental right then it would logically follow that group marriage, incest marriage, etc could not be denied.
John K. • Nov 11, 2008 at 1:30 am
“On what legitimate basis do we deny marriage rights to family members right now?”
I don’t know, how about you tell me?
John K. • Nov 11, 2008 at 8:30 am
“On what legitimate basis do we deny marriage rights to family members right now?”
I don’t know, how about you tell me?
Robert • Nov 9, 2008 at 4:48 pm
“Allowing only gay siblings to marry but not straight ones is not equal, and it wouldn’t even pretend to be, its separateness notwithstanding.”
On what legitimate basis do we deny marriage rights to family members right now?
Robert • Nov 9, 2008 at 11:48 pm
“Allowing only gay siblings to marry but not straight ones is not equal, and it wouldn’t even pretend to be, its separateness notwithstanding.”
On what legitimate basis do we deny marriage rights to family members right now?
John K. • Nov 9, 2008 at 12:16 pm
“Yes, but we treat people differently based on gender…just look at separate but equal bathrooms.”
Come on now, you’re really reaching here. Allowing only gay siblings to marry but not straight ones is not equal, and it wouldn’t even pretend to be, its separateness notwithstanding.
John K. • Nov 9, 2008 at 7:16 pm
“Yes, but we treat people differently based on gender…just look at separate but equal bathrooms.”
Come on now, you’re really reaching here. Allowing only gay siblings to marry but not straight ones is not equal, and it wouldn’t even pretend to be, its separateness notwithstanding.
Robert • Nov 7, 2008 at 1:24 pm
“My only thought on the issue is that it would treat people differently based on gender, which is also suspect. ”
Yes, but we treat people differently based on gender…just look at separate but equal bathrooms.
Robert • Nov 7, 2008 at 8:24 pm
“My only thought on the issue is that it would treat people differently based on gender, which is also suspect. ”
Yes, but we treat people differently based on gender…just look at separate but equal bathrooms.
John K. • Nov 7, 2008 at 8:55 am
Robert: They can’t say that now, after their decision in the first Marriage Cases opinion. The whole point of classifying sexual orientation as a suspect class is that all sexual orientations must be treated the same.
I don’t know how they would handle the question of gay brothers marrying. My only thought on the issue is that it would treat people differently based on gender, which is also suspect. The government would have to show a compelling interest in the difference. I don’t know how they would handle that situation, other than to say that it affects sooo few people that it’s not going to come up in the first place.
John K. • Nov 7, 2008 at 3:55 pm
Robert: They can’t say that now, after their decision in the first Marriage Cases opinion. The whole point of classifying sexual orientation as a suspect class is that all sexual orientations must be treated the same.
I don’t know how they would handle the question of gay brothers marrying. My only thought on the issue is that it would treat people differently based on gender, which is also suspect. The government would have to show a compelling interest in the difference. I don’t know how they would handle that situation, other than to say that it affects sooo few people that it’s not going to come up in the first place.
Robert • Nov 6, 2008 at 10:29 pm
It is in an intellectual bind but could they say that same-sex orientation and opposite sex orientation are both protected classes but different protected classes because there are tangible differences between them? I also don’t see their basis for denying gay bothers to marry if they permit other gays to. The genetic/child disorder harm claim would not hold in that case.
Robert • Nov 7, 2008 at 5:29 am
It is in an intellectual bind but could they say that same-sex orientation and opposite sex orientation are both protected classes but different protected classes because there are tangible differences between them? I also don’t see their basis for denying gay bothers to marry if they permit other gays to. The genetic/child disorder harm claim would not hold in that case.
John K. • Nov 6, 2008 at 10:17 pm
Since the Marriage Cases opinion ruled that sexual orientation is a protected class just like race or gender or ethnicity, the Court will have a hard time explaining why you WOULDN’T be able to do those other things I just mentioned (there’s no extra special protection for race, gender, or ethnicity that doesn’t now apply to gays as well). In the alternative, the Court would have to rule that it is, in fact, ok to vote by a majority to take those things away as well (even though it would almost certainly never happen). The Court is in a real intellectual bind, it seems to me.
John K. • Nov 7, 2008 at 5:17 am
Since the Marriage Cases opinion ruled that sexual orientation is a protected class just like race or gender or ethnicity, the Court will have a hard time explaining why you WOULDN’T be able to do those other things I just mentioned (there’s no extra special protection for race, gender, or ethnicity that doesn’t now apply to gays as well). In the alternative, the Court would have to rule that it is, in fact, ok to vote by a majority to take those things away as well (even though it would almost certainly never happen). The Court is in a real intellectual bind, it seems to me.
John K. • Nov 6, 2008 at 10:13 pm
Robert: the lawsuits filed so far do not implicate DOMA; they stick to state law only. We’re trying to stay away from the current Supreme Court. A loss there would REALLY be a setback, probably half a century.
I don’t think we’ll be seeing group marriages or incest if this falls. The same-sex marriage court decision specifically ruled that out for now, and I think there is enough to distinguish them from gay marriage.
Junior: That marriage is a fundamental right is a settled question. The only question before the Court now will be whether taking that right away from only a specific protected class is a big enough change to constitute a revision rather than an amendment, thus requiring 2/3 of the legislature to refer it to the people rather than just gathering signatures and passing it by a simple majority popular vote. If the Court is going to rule against us, I’d love to see how they are going to reason. Seems to me that this technically opens the door to an initiative petition by gays to strip the Mormon Church of its tax-exampt status (that wouldn’t fly under the federal constitution, but that shouldn’t matter, as the state constitution stands alone, and in principle, shouldn’t rely on the “backup” of the federal constitution to protect fundamental rights). You could technically gather signatures to strip women only of free speech or stop Mexicans from owning property (that would help the immigration problem a lot, no?) The question is whether these changes are considered major or minor.
John K. • Nov 7, 2008 at 5:13 am
Robert: the lawsuits filed so far do not implicate DOMA; they stick to state law only. We’re trying to stay away from the current Supreme Court. A loss there would REALLY be a setback, probably half a century.
I don’t think we’ll be seeing group marriages or incest if this falls. The same-sex marriage court decision specifically ruled that out for now, and I think there is enough to distinguish them from gay marriage.
Junior: That marriage is a fundamental right is a settled question. The only question before the Court now will be whether taking that right away from only a specific protected class is a big enough change to constitute a revision rather than an amendment, thus requiring 2/3 of the legislature to refer it to the people rather than just gathering signatures and passing it by a simple majority popular vote. If the Court is going to rule against us, I’d love to see how they are going to reason. Seems to me that this technically opens the door to an initiative petition by gays to strip the Mormon Church of its tax-exampt status (that wouldn’t fly under the federal constitution, but that shouldn’t matter, as the state constitution stands alone, and in principle, shouldn’t rely on the “backup” of the federal constitution to protect fundamental rights). You could technically gather signatures to strip women only of free speech or stop Mexicans from owning property (that would help the immigration problem a lot, no?) The question is whether these changes are considered major or minor.
Robert • Nov 6, 2008 at 9:31 pm
I would say that free association and the option to spend your life with somebody is a right. All adults have that right. Government recognition of someone’s union (whether that be individual or group) sounds like a privilege to me.
Robert • Nov 7, 2008 at 4:31 am
I would say that free association and the option to spend your life with somebody is a right. All adults have that right. Government recognition of someone’s union (whether that be individual or group) sounds like a privilege to me.
Junior • Nov 6, 2008 at 8:55 pm
Is marriage a right? I don’t know. We’ve never been able to marry without the consent and recognition of the state. So it could be just a privilege.
Junior • Nov 7, 2008 at 3:55 am
Is marriage a right? I don’t know. We’ve never been able to marry without the consent and recognition of the state. So it could be just a privilege.
Robert • Nov 6, 2008 at 4:55 pm
How will DOMA play with this or will it have no effect because this is not in Federal court?
Also, do you think we could get things like group marriage and gay marriage between brothers, etc as they might fall under equal protection if this is is considered to fall under this?
I also wonder if this get overturned if it will trigger a Federal marriage amendment push. Who knows.
Robert • Nov 6, 2008 at 11:55 pm
How will DOMA play with this or will it have no effect because this is not in Federal court?
Also, do you think we could get things like group marriage and gay marriage between brothers, etc as they might fall under equal protection if this is is considered to fall under this?
I also wonder if this get overturned if it will trigger a Federal marriage amendment push. Who knows.
John K. • Nov 6, 2008 at 10:52 am
Well, I’m not exactly sure. However, if you read the brief in the lawsuit filed yesterday, it makes a great case for why exceptions to equal protection require a revision. Basically, the initiative provision, passed in 1911, was itself only passed as an amendment, not a revision. As used in this instance, it divests the Courts from their structural duty to enforce equal protection. Equal protection is a bedrock constitutional principle, essential to the framework of the constitution. The entire point of equal protection is to protect minorities against majorities. Don’t forget that the Cali Supreme Court held in the Marriage Cases that sexual orientation is a suspect class, JUST like gender and race. If a simple majority can make exceptions to equal protection,for a suspect class, then it is rendered ABSOLUTELY USELESS! In theory, if Prop. 8 were upheld, citizens can get a petition together, and a majority can ratify, laws that prohibit Mexicans from owning property, women from voting, Mormons from opening tax-exempt churchs. Perhaps there needs to be a mechanism for making even such fundamental changes, but it simply cannot be that a bare majority can make such changes. This issue can be on the ballot every year and keep swinging back and forth based on a few percentage points. It’s simply unworkable, and although this might be a novel argument and usually a longshot, I think this is the best case to test it because we’re presented with several things that cause problems here, including the fact that marriages have already been entered into, and that the vote margin was SO slim as to call into question the volitiliy from year to year of the issue. I think there is a decent chance the Court will rule this a revision.
John K. • Nov 6, 2008 at 5:52 pm
Well, I’m not exactly sure. However, if you read the brief in the lawsuit filed yesterday, it makes a great case for why exceptions to equal protection require a revision. Basically, the initiative provision, passed in 1911, was itself only passed as an amendment, not a revision. As used in this instance, it divests the Courts from their structural duty to enforce equal protection. Equal protection is a bedrock constitutional principle, essential to the framework of the constitution. The entire point of equal protection is to protect minorities against majorities. Don’t forget that the Cali Supreme Court held in the Marriage Cases that sexual orientation is a suspect class, JUST like gender and race. If a simple majority can make exceptions to equal protection,for a suspect class, then it is rendered ABSOLUTELY USELESS! In theory, if Prop. 8 were upheld, citizens can get a petition together, and a majority can ratify, laws that prohibit Mexicans from owning property, women from voting, Mormons from opening tax-exempt churchs. Perhaps there needs to be a mechanism for making even such fundamental changes, but it simply cannot be that a bare majority can make such changes. This issue can be on the ballot every year and keep swinging back and forth based on a few percentage points. It’s simply unworkable, and although this might be a novel argument and usually a longshot, I think this is the best case to test it because we’re presented with several things that cause problems here, including the fact that marriages have already been entered into, and that the vote margin was SO slim as to call into question the volitiliy from year to year of the issue. I think there is a decent chance the Court will rule this a revision.
Robert • Nov 5, 2008 at 11:09 pm
To be a revision it must, “it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution. [Citations.]â€Â
I don’t know if this measure would meet those requirements. I would like to know who governmental framework has been interpreted in the past.
Robert • Nov 6, 2008 at 6:09 am
To be a revision it must, “it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution. [Citations.]”
I don’t know if this measure would meet those requirements. I would like to know who governmental framework has been interpreted in the past.
John K. • Nov 5, 2008 at 8:51 pm
Robert:
That’s completely different from the argument I was talking about. Initiatives can’t be used to REVISE the constitution whether the voters know what they are doing or not.
John K. • Nov 6, 2008 at 3:51 am
Robert:
That’s completely different from the argument I was talking about. Initiatives can’t be used to REVISE the constitution whether the voters know what they are doing or not.
Robert • Nov 5, 2008 at 6:33 pm
“Like I said, the outcome is far from certain, but the argument that Prop. 8 was improperly placed on the ballot seems like a legitimate winner to me.”
While prop 8 was placed on the ballot during a time when gay marriage did not exist in the state, the ballot changes made by Brown indicate the new realities of the proposition and therefore the voters knew what they were voting for and where not under false assumptions. I think there would be an issue if the voters did not believe the prop 8 would have an effect on the recent legalization of gay marriage although that was abundantly clear both in the ballot language and surrounding discussion of the issue among the general public.
Robert • Nov 6, 2008 at 1:33 am
“Like I said, the outcome is far from certain, but the argument that Prop. 8 was improperly placed on the ballot seems like a legitimate winner to me.”
While prop 8 was placed on the ballot during a time when gay marriage did not exist in the state, the ballot changes made by Brown indicate the new realities of the proposition and therefore the voters knew what they were voting for and where not under false assumptions. I think there would be an issue if the voters did not believe the prop 8 would have an effect on the recent legalization of gay marriage although that was abundantly clear both in the ballot language and surrounding discussion of the issue among the general public.
John K. • Nov 5, 2008 at 1:21 pm
No problem. Like I said, the outcome is far from certain, but the argument that Prop. 8 was imporperly placed on the ballot seems like a legitimate winner to me. The dynamics of the political situation might come into play in that if the Court invalidates the popular vote for a second time in six months, there may be hell to pay for the justices. They have to be reconfirmed every so many years by the voters, and there have been successful campaigns to unseat justices over issues like this before (three or foure justices were unseated not too too long ago over a case in which they found a problem with the death penalty in california). I’m sure the justices are well-aware of this and it may cause a problem for gay couples. The Court declined to hear this revision v. amendment challenge prior to the election (although it did not rule on the merits). That indicates to me that it was hoping the ban would fail so it wouldn’t have to get its hands any dirtier. Now, it doesn’t have much choice but to take on the issue and make a substantive ruling. We’ll see what happens. The suits are already filed as of this morning.
John K. • Nov 5, 2008 at 8:21 pm
No problem. Like I said, the outcome is far from certain, but the argument that Prop. 8 was imporperly placed on the ballot seems like a legitimate winner to me. The dynamics of the political situation might come into play in that if the Court invalidates the popular vote for a second time in six months, there may be hell to pay for the justices. They have to be reconfirmed every so many years by the voters, and there have been successful campaigns to unseat justices over issues like this before (three or foure justices were unseated not too too long ago over a case in which they found a problem with the death penalty in california). I’m sure the justices are well-aware of this and it may cause a problem for gay couples. The Court declined to hear this revision v. amendment challenge prior to the election (although it did not rule on the merits). That indicates to me that it was hoping the ban would fail so it wouldn’t have to get its hands any dirtier. Now, it doesn’t have much choice but to take on the issue and make a substantive ruling. We’ll see what happens. The suits are already filed as of this morning.
junior • Nov 5, 2008 at 11:50 am
I looked up the May 15 ruling and the equal protection clause. It’s kind of interesting that all this is taking place considering that decision. Thanks for clearing that up.
junior • Nov 5, 2008 at 6:50 pm
I looked up the May 15 ruling and the equal protection clause. It’s kind of interesting that all this is taking place considering that decision. Thanks for clearing that up.
John K. • Nov 5, 2008 at 11:27 am
Found it:
http://www.metnews.com/articles/2008/inmyopinion052108.htm
John K. • Nov 5, 2008 at 6:27 pm
Found it:
http://www.metnews.com/articles/2008/inmyopinion052108.htm
John K. • Nov 5, 2008 at 11:23 am
Junior:
Well, first, I’m not talking about the 14th amendment of the federal constitution; I’m talking about the analogous provision of the California constitution, under which the california supreme court decided that gay couples were being treated unequally under the law as it was before this past May, and that the laws treating them differently had to be struck down. The Court ruled that gays were a protected class under the state constitution’s equal protection clause.
What we are talking aboug IS already current law. There is a well-established fundamental right to marriage that is guaranteed by both the federal and state constitutions. Regardless of how the US Supreme Court would rule on the federal right to marriage, the Cali Supreme Court ruled that the state constitution’s right to marriage included the right of gays to marry. That said, the equal protection clause applies. To change the constitution to deny a fundamental right AND to deny equal protection to a protected class certainly seems like a major change to me.
I am going to re-look up the case law on revisions v. amendments and post it.
John K. • Nov 5, 2008 at 6:23 pm
Junior:
Well, first, I’m not talking about the 14th amendment of the federal constitution; I’m talking about the analogous provision of the California constitution, under which the california supreme court decided that gay couples were being treated unequally under the law as it was before this past May, and that the laws treating them differently had to be struck down. The Court ruled that gays were a protected class under the state constitution’s equal protection clause.
What we are talking aboug IS already current law. There is a well-established fundamental right to marriage that is guaranteed by both the federal and state constitutions. Regardless of how the US Supreme Court would rule on the federal right to marriage, the Cali Supreme Court ruled that the state constitution’s right to marriage included the right of gays to marry. That said, the equal protection clause applies. To change the constitution to deny a fundamental right AND to deny equal protection to a protected class certainly seems like a major change to me.
I am going to re-look up the case law on revisions v. amendments and post it.
junior • Nov 5, 2008 at 11:14 am
While I don’t disagree with you John, I wonder if equal protection rights cover something (marriage) that is not already current law. The fourteenth amendment states, “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” That means laws that were heretofore recognized. I don’t know. Just something to consider.
junior • Nov 5, 2008 at 6:14 pm
While I don’t disagree with you John, I wonder if equal protection rights cover something (marriage) that is not already current law. The fourteenth amendment states, “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” That means laws that were heretofore recognized. I don’t know. Just something to consider.
John K. • Nov 5, 2008 at 8:23 am
Robert:
First, perhaps you are right, but that doesn’t change the fact that Mr. Cummings is wrong to say that the only way it could be CHALLENGED was in the US Supreme Court.
Second, the current language of the constitution provides equal protection. Equal protection is one of the cornerstones of the constitution. This makes an exception to equal protection, which defeats the purpose of equal protection in the first place. I do not pretend to know for sure the the Cali Supreme Court will do, but it seems to me that there is a more than compelling case that changing equal protection is a major change that constitutes a revision.
John K. • Nov 5, 2008 at 3:23 pm
Robert:
First, perhaps you are right, but that doesn’t change the fact that Mr. Cummings is wrong to say that the only way it could be CHALLENGED was in the US Supreme Court.
Second, the current language of the constitution provides equal protection. Equal protection is one of the cornerstones of the constitution. This makes an exception to equal protection, which defeats the purpose of equal protection in the first place. I do not pretend to know for sure the the Cali Supreme Court will do, but it seems to me that there is a more than compelling case that changing equal protection is a major change that constitutes a revision.
Robert • Nov 5, 2008 at 4:34 am
Prop 8 is clearly and amendment and not a revision as there is not current marriage language in the Constitution.
Robert • Nov 5, 2008 at 11:34 am
Prop 8 is clearly and amendment and not a revision as there is not current marriage language in the Constitution.
John K. • Nov 5, 2008 at 2:52 am
Mr. Cummings is COMPLETELY wrong. He obviously hasn’t read up on California Constitutional Law. Prop. 8 is amenable to a suit challenging it as a constitutional revision as opposed to an amendment, which means it can only be legally put on the ballot by constitutional convention or referal by 2/3 of the legislature, not by inititiative, which was how it was placed on the ballot. No US Supreme Court case necessary; the California Supreme Court can overturn this just like it did Prop. 22.
John K. • Nov 5, 2008 at 9:52 am
Mr. Cummings is COMPLETELY wrong. He obviously hasn’t read up on California Constitutional Law. Prop. 8 is amenable to a suit challenging it as a constitutional revision as opposed to an amendment, which means it can only be legally put on the ballot by constitutional convention or referal by 2/3 of the legislature, not by inititiative, which was how it was placed on the ballot. No US Supreme Court case necessary; the California Supreme Court can overturn this just like it did Prop. 22.