| Yesterday, the Yes on 8 gave their somewhat premature victory speech. While I think the odds are tough for us to come back in the absentees, it doesn't look good. Either way, it is what it us. They have the numbers right now on their side. Say what you will about discrimination being written into our constitution, or the threshhold necessary for said constitutional graffiti, we only have this from a statement from the No on 8 campaign:
Based on turnout estimates reported yesterday, we expect that there are more than 3 million and possibly as many as 4 million absentee and provisional ballots yet to be counted.
Here's hoping for a Dewey defeats Truman moment, but I think they are a bit optimistic about those numbers. Turnout cratered after the polls closed on the east coast and people started learning about Obama's success. My guess is that turnout will end up around, or slightly below, the 2004 total of 12.6 million. That's substantially less than Field's estimates of 13.6 million, but still much more than the 10.3 million votes currently counted in the presidential election. So, the fat lady has yet to sing on Prop 8, despite the AP and the Yes campaign.
That being said, the legal response to any prospective Prop 8 victory has already begun. First, there's the issue of retroactivity. Jerry Brown said over the summer that he thinks it isn't retroactive, and the ACLU is backing that position. We probably won't see a challenge to that until we have some real-life facts to challenge that on. I'm not sure when that will happen, but I can't imagine the right-wing will want to just leave this hanging for too long.
Then there's the bigger question of whether Prop 8 is valid at all. Back in June/July, ACLU, EQCA, NCLR, etc, filed a lawsuit regarding whether Prop 8 was a revision or an amendment. There is a big difference there. Revisions can only be accomplished through a constitutional convention and lots of 2/3 votes, while amendments require a bare majority at the polls. Yeah, it's a big deal.
Before I go on, I'll say this. It's at best a 50-50 shot, and that might be generous. Not that we have a weak case, but what is critical here is that this will take monumental courage from our Supreme Court. As you probably know, our Court faces election, and a decision in favor of marriage here will open them up to even more electoral challenges. Rose Bird is your big case there. However, the Justices should know that if they follow their convictions, and the case law set down before them, the LGBT community, as well as the greater progressive community, will come out in force in support of these Republican judges. We will give them money, and we will support their reelection to the Court. Rose Bird was a lesson that we shouldn't forget.
Let's review the law, over the flip...
|I'm just going to bring back my analysis from my previous post, with a few edits here and there. But there is a new Petition to the court.
What's the deal with this revision argument?
Alrighty, this really goes to the heart of the matter. So, what is a "revision"? Basically a revision is a change to the "underlying principles" of the Constitution. If the Court determines that the question at issue affects the underlying principles of the California Constitution, the initiative must go through a different process. A revision requires a 2/3 vote of both houses of the Legislature or the convening of a Constitutional Convention (a process that I won't go into here). The revision then must be ratified by the people. Obviously this initiative hasn't gone through either process.
But what is an "underlying principle", you ask? Well, good freaking question! There have been only a few cases which have actually dealt with this. A few months back Killer of Sacred Cows wrote a recommended diary at dKos and crossposted here about an article by Kevin Norte (and a follow-up), a research attorney in the LA Superior Court.
In other breaking news, there is no such thing as a free lunch. This will be a tough case for Chief Justice George and the California Supreme Court. While he did give a hint in the questioning all the way back in March, it's not clear by any stretch that there are 4 votes for this, either before or after the election.
The EQCA brief cite several cases where amendments have been tossed. The most notable amongst the amendments that were tossed was at issue in Raven v Deukmijian (52 Cal 3d 336). In that case, Stephen Bomse (the same attorney at Heller Ehrman that field the case on behalf of the voters and orgs in the marriage case) argued that a proposed initiative that would have limited California criminal rights to the extent of the US Constitution. The CA Sup Ct ruled that such an amendment would so change the structure of the California system of government as to amount to a revision of the Constitution.
The Court stated a rather nebulous standard in Raven:
As explained in Amador, and confirmed in Brosnahan, our revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision. Before examining the applicable authorities in greater depth, we first set forth the nature of petitioners' revision challenge.
So, the Court goes through a two-pronged analysis when dealing with revisions. Quantitative goes to scope of changes in the Constitution, quite literally. That looks to the actual number of additions, deletions, and amendments to the California Constitution (Raven , III, B, 2). As to the qualitative aspect, the Court states that "even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision."
Clearly, the marriage issue is looking towards qualitative aspects. And again, Raven is the case to look at:
Even under respondent Attorney General's "limited" construction of new article I, section 24, fundamental constitutional rights are implicated, including the rights to due process of law, equal protection of the law, assistance of counsel, and avoidance of cruel and unusual punishment. As to these rights, as well as the other important rights listed in new section 24, California courts in criminal cases would no longer have authority to interpret the state Constitution in a manner more protective of defendants' rights than extended by the federal Constitution, as construed by the United States Supreme Court.
This is where the case is headed, where the controversy lies. The EQCA attorneys argue that marriage is now a fundamental right. It is implicated under equal protection of the law, as orientation is now a suspect class under In re Marriage Cases. From the brief:
Equal protection is not merely a discrete constitutional guarantee; it is a trascendent principle that is deeply woven into the fabric of our entire Constitution. (Brief at 17)
There is a substantive argument to be made here. But, there is no case law on the definition of fundamental rights. This would be the Court going out on a limb and expanding the scope of the revision doctrine. Now, this is the same court that decided In re Marriage Cases, so it's not entirely unthinkable.
But, as the writ points out, the Courts were specifically formed to protect the rights of minorities. This is the very definition of a majority trampling on the fundamental rights of a minority.
And the court, in In Re Marriage Cases defined the right to marry as exactly that: fundamental.
we conclude that ... the differential treatment at issue impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple. In Re Marriage Cases at 10
And the word fundamental is spread liberally throughout In Re Marriage Cases. But, like I said, this isn't a question of law, the precedent is there. This is merely a question of courage. Does our justice system allow for the curtailing of fundamental rights by a bare majority? It certainly wasn't designed to do so...but the jury is still out.