No Borders and Binaries

I am hoping this is my last Prop. 8 blog till at least the weekend.

I figure there are four ways for the California Supreme Court to rule on this Prop. 8 mess in the coming week.

1. Injunction Relief

A reader suggested that I look into Romer v. Evans – the case goes like this:

In 1992, voters in Colorado approved Amendment 2 by 53.4%, which nullified existing anti-LGBT discrimination ordinances. The District Court questioned the constitutionality of the proposition and granted a temporary injunction against the proposition till a trial was scheduled by the Colorado Supreme Court. The higher court upheld the injunction, declaring Amendment 2 in violation of the Equal Protection Clause of the Fourteenth Amendment. In 1996, the U.S. Supreme Court struck down Amendment 2 as unconstitutional in a 6-3 decision arguing that the law did not even meet the rational basis test (let alone the ‘strict Scrutiny’ that California and Colorado both afford to ‘sexual orientation’).

Thomas, Scalia and Rehnquist dissented, arguing that homosexuals can be denied ‘special’ protections due to their ‘self-avowed’ conduct. That is one amusing nut-job dissenting opinion for the ages.

This would be the easiest way out for the California Supreme Court — grant an injunction relief and let the federal courts decide the mess. It’s probably not what either side wants but it would also grant gay couples the right to marry and time to reverse the measure by 2010 before the U.S. Supreme Court would even hear it.

2. Invalidate Prop 8.

This is the amendment vs. revision debate and the argument that the ACLU, Lambda Legal and NCLR make in their brief. Volokh and Bainbridge do not think so.

Although the electorate may amend the Constitution by initiative (art. XVIII, § 3), a revision of the Constitution may be accomplished only by a constitutional convention and popular ratification (art. XVIII, § 2) or by legislative submission of the measure to the electorate (art. XVIII, § 1). The opponents of Prop. 8 plan to argue in Court that Prop. 8 would require a revision and not merely an amendment because it was in direct violation of equal protection and the spirit of the constitution, and thus a SUBSTANTIAL change.

Raven v. Deukmejian in 1990 was the first case where a proposition was thrown out on the basis that it would have required a revision and not an amendment. The California Supreme Court argued similarly for ‘gay marriage’ in re Marriage cases:

“We conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.“

Is Prop. 8 a substantial change? Well, legal ‘experts’ think it is a stretch but lets agree that it does violate the EQUAL PROTECTION CLAUSE of the California Constitution decided by the Courts on May 15. If the California Supreme Court lets Prop. 8 stand, it sets a dangerous precedent that provides a gaping slippery slope, whereby equal protections for all groups in society could be put on the ballot and voted away by a minimum majority.

For example, in 2010, let’s ban the Republican party from California - it should pass by an easy majority, more than 52% for sure. Oh, not fair? Too bad.

On this basis, I truly believe that it has to either provide an injunction or invalidate.

3. With-hold marriage benefits from everyone

(I will throw a party for this one)

There may be no need to overturn Prop. 8.

Prop 8 put an asterisk or exception to the ‘equal protection clause’ of the California Constitution and the only way to settle the contradictions between the different clauses would be to strike marriage from the constitution—if gays cannot get married under civil law, neither can anyone else, period.

This is from re Marriage cases:

When a statute’s differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class. (119)

[…]

In the present case, it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation.(120)

The probable intent in this case is discriminatory and violates equal protection through the statutory initiative process.

Is the court courageous enough to invalidate Prop. 8 or will it go a step further and withhold civil marriage equally from all segments of society? The latter would certainly spark an outcry and be well-deserved. It would also create a mess in light of the ‘universalizing’ marriage laws of other states and might make California scramble and agree to marriages for all couples.

Not likely to be done anytime soon. But amusing nonetheless especially since this all started with the Christian conservatives wanting to ‘protect traditional marriage.’ They can still have their little traditional marriages (whatever that means), but that would have nothing to do with the state.

4. Do nothing. Let the will of ‘the people’ stand

Legal ‘experts’ say that the ruling will probably stand. It seems unlikely as the Court has reacted with an urgency to the lawsuits filed, declaring that a decision would be made by next week. Would the California Supreme Court let Prop. 8 stand and the culture war intensify further in California? Right now I think that would be great for the LGBT civil rights movement.

Anyway, that was my two Fijian cents. I am no legal scholar.

Feel free to list more ways that make legal sense.

P.S. Some segments of the ‘Yes on 8′ are already talking about recalling the four judges on the Supreme Court responsible for upholding minority rights. Go figure.

Related post: Law professors all over California debunk Prop. 8

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