Undoing Prop 8

[Kanastrous]

Let's suppose that the worst-case scenario materializes, and California Proposition 8 is approved at the polls.

What legal mechanisms exist, for challenging, obstructing, and undoing its passage?

[Solauren]

Does it violate the Federal level constitution?

[Kodiak]

The measure is, itself, an amendment to the state constitution. In order to remove it there would have to be either another ballot measure to repeal it (IIRC this requires a 66% margin) or to be overturned by the supreme court. I believe this issue will ultimately be decided in the SC, since there are >30 states right now that have a gay marriage ban in effect, either through a constitutional amendment or some other law (California originally tried their ban through a change in the civil code).

[Kodiak]

Does it violate the Federal level constitution?

Ghetto edit: So far none of the states with "Marriage Definition" amendments to their state constitution have had them overturned by the SC.

[Stormbringer]

Does it violate the Federal level constitution?

Ghetto edit: So far none of the states with "Marriage Definition" amendments to their state constitution have had them overturned by the SC.

But how many of them have actually gotten to the Supreme Court? I'm aware of none that went any higher than a State Supreme Court.

[Pint0 Xtreme]

The measure is, itself, an amendment to the state constitution. In order to remove it there would have to be either another ballot measure to repeal it (IIRC this requires a 66% margin) or to be overturned by the supreme court. I believe this issue will ultimately be decided in the SC, since there are >30 states right now that have a gay marriage ban in effect, either through a constitutional amendment or some other law (California originally tried their ban through a change in the civil code).

Why would it require a 66% margin? Constitutional amendments such as Prop 8 in California only require a simple majority. (50%)

[General Zod]

Does it violate the Federal level constitution?

I don't think the Federal government isn't horribly concerned about whether marriage laws violate the constitution or not, since DOMA is still on the books unless I'm not mistaken.

[Kodiak]

The measure is, itself, an amendment to the state constitution. In order to remove it there would have to be either another ballot measure to repeal it (IIRC this requires a 66% margin) or to be overturned by the supreme court. I believe this issue will ultimately be decided in the SC, since there are >30 states right now that have a gay marriage ban in effect, either through a constitutional amendment or some other law (California originally tried their ban through a change in the civil code).

Why would it require a 66% margin? Constitutional amendments such as Prop 8 in California only require a simple majority. (50%)

Because there are some issues in CA which require 66%. Budget increases are one, and I had thought repealing a state constitutional amendment was also serious enough

[Metatwaddle]

The measure is, itself, an amendment to the state constitution. In order to remove it there would have to be either another ballot measure to repeal it (IIRC this requires a 66% margin) or to be overturned by the supreme court. I believe this issue will ultimately be decided in the SC, since there are >30 states right now that have a gay marriage ban in effect, either through a constitutional amendment or some other law (California originally tried their ban through a change in the civil code).

Why would it require a 66% margin? Constitutional amendments such as Prop 8 in California only require a simple majority. (50%)

Holy shit, are you serious? You can amend your state constitution with a simple 50% majority referendum?

I can't think of any reason why repealing an amendment would be any "bigger" than making the amendment in the first place, though. In the US Constitution, the 21st Amendment does nothing more or less than repeal the 18th. Wouldn't a repeal of an amendment be simply another amendment?

[The Duchess of Zeon]

The measure is, itself, an amendment to the state constitution. In order to remove it there would have to be either another ballot measure to repeal it (IIRC this requires a 66% margin) or to be overturned by the supreme court. I believe this issue will ultimately be decided in the SC, since there are >30 states right now that have a gay marriage ban in effect, either through a constitutional amendment or some other law (California originally tried their ban through a change in the civil code).

Why would it require a 66% margin? Constitutional amendments such as Prop 8 in California only require a simple majority. (50%)

Holy shit, are you serious? You can amend your state constitution with a simple 50% majority referendum?

I can't think of any reason why repealing an amendment would be any "bigger" than making the amendment in the first place, though. In the US Constitution, the 21st Amendment does nothing more or less than repeal the 18th. Wouldn't a repeal of an amendment be simply another amendment?

The California State Supreme Court could also strike it down, however, because it would be amending the constitution itself. That is what the gay rights movement in California plans to do if Prop 8 passes--challenge it before the CSSC. The reason for this is since the State Supreme Court has found gay marriage to be a constitutional right in California, eliminating that right would be repealing part of the constitution, and therefore require 66%.

And of course everyone who got married before the Proposition goes into effect will remain married after it goes into effect.

Though California's laws are fucking retarded. Here in Washington State, you need both houses of the legislature to pass an amendment with 60% support, and THEN for a majority of the people to approve it as well, for the amendment to become law. The bigots haven't even tried to ban gay marriage constitutionally here; it would never even get out of the State House of Representatives.

[CaptainChewbacca]

If an amendment to the constitution is passed, it becomes a part of the constitution. How can a part of the constitution be a part of the constitution? Isn't that like saying whichever amendment overrules the 3/5ths clause for black people in the US constitution is unconstitutional?

[The Duchess of Zeon]

If an amendment to the constitution is passed, it becomes a part of the constitution. How can a part of the constitution be a part of the constitution? Isn't that like saying whichever amendment overrules the 3/5ths clause for black people in the US constitution is unconstitutional?

No, because the law for amending the California State Constitution and the US Constitution are different.

Simple explanation:

1. If an amendment changes part of the California constitution, it requires 66%.

2. If an amendment just adds something to the constitution, it just requires 50%.

That's how I understand it, and where the unconstitutionally of the proposition may come from.

[Durandal]

If an amendment to the constitution is passed, it becomes a part of the constitution. How can a part of the constitution be a part of the constitution? Isn't that like saying whichever amendment overrules the 3/5ths clause for black people in the US constitution is unconstitutional?

Constitutional amendments are evaluated in descending order of precedence.

[CaptainChewbacca]

If an amendment to the constitution is passed, it becomes a part of the constitution. How can a part of the constitution be a part of the constitution? Isn't that like saying whichever amendment overrules the 3/5ths clause for black people in the US constitution is unconstitutional?

Constitutional amendments are evaluated in descending order of precedence.

Really? I was always under the impression that the most recent amendments superceeded the older ones...

Or is that what 'descending order of precedence' means? Its late

[Alyrium Denryle]

On possible way to mitigate the effect would be to get rid of "marriage" in CA. The initial ruling, because it relied on CAs equal protection clause, would still stand. The only thing that would change is that marriage would become unconstitutional and CA would start providing civil unions

[Durandal]

If an amendment to the constitution is passed, it becomes a part of the constitution. How can a part of the constitution be a part of the constitution? Isn't that like saying whichever amendment overrules the 3/5ths clause for black people in the US constitution is unconstitutional?

Constitutional amendments are evaluated in descending order of precedence.

Really? I was always under the impression that the most recent amendments superceeded the older ones...

Or is that what 'descending order of precedence' means? Its late

That is what it means. Descending means from greatest to least. So, if any two amendments contradict, the amendment whose number is greater takes precedence. Hence why the 21st amendment overrides the 18th amendment.

[CaptainChewbacca]

That is what it means. Descending means from greatest to least. So, if any two amendments contradict, the amendment whose number is greater takes precedence. Hence why the 21st amendment overrides the 18th amendment.

So then, a new amendment to the state constitution couldn't be ruled unconstitutional, since it would have precedence over other parts of the constitution?

[RedImperator]

That is what it means. Descending means from greatest to least. So, if any two amendments contradict, the amendment whose number is greater takes precedence. Hence why the 21st amendment overrides the 18th amendment.

So then, a new amendment to the state constitution couldn't be ruled unconstitutional, since it would have precedence over other parts of the constitution?

That's how the Federal constitution works, but if Marina is right, the California constitution is different. There's a different procedure depending on if you're merely adding to the Constitution or changing it. So, to take two examples from the Federal constitution, if it used California rules, the 19th Amendment (extending suffrage to women) would have taken fewer votes to pass than the 17th Amendment (popular election of senators), because the 19th added a new right, while the 17th changed Article I, Section 3.

[Comando293]

I read through the relevant sections of the state constitution, and it appears that a simple 50% majority is needed.

(a) An initiative statute or referendum approved by a
majority of votes thereon takes effect the day after the election
unless the measure provides otherwise.

Where I found that.

Where does this 66% figure come from?

[Tsyroc]

Arizona has a proposition on the ballot to amend the state constitution to make marriage officially "a man and a woman". There's already a law on the books which states that but now the freakazoids are trying to amend the state constitution to say the same thing. I'm assuming it's to avoid a bitch slapping "unconstitutional verdict" later on.

I think that it might pass this time around but I wouldn't be surprised if it would be changed in the next ten years or so.


Arizona has a lot of Catholics, LDS, Southern Baptists and even some borderline whack job Prespetrians who care far too much about this shit considering that gays being able to legally marry is probably much more of a good thing as far as the state is concerned.


Everything below this point has nothing to do with the real subject of this post and the politics of boning over people who are in committed non-heterosexual relationships because your religion says tom or because you are a insecure dick head who doesn't like the American Ideal of being fair to everyone. .


I'd like to recommend and endorse using Safari for Windows when deciding to use the Internet when drunk off your ass. The nice little red dotted lines (i.e., instant spell check) are incredibly helpful in making sure that you remain semi-coherent when posting on bulletin boards or writing email when totally drunk off your ass. FYI: Jim Beam fucking rules and this is coming from someone who thinks most all alcohol tastes like crap. Essentially, it means that the taste is only somewhat crappy but the alcohol content is pretty high. Right now, I'm buzzin' so hard that I can feel it in my feet. Hence, I reiterate using a browser that checks your spelling as you type. Otherwise this post would look like I smashed my face against the keyboard several times before hitting submit. Seriously, I'm surprised I can still type at this point. I'm so fucked up that I'm still posting and I'm somewhat disappointed that I can't shoot energy beams out of my hands, and the sound proofing on the ceiling of this room looks far too interesting. Like I said earlier. A browser that checks your typing as you go is a good thing. Otherwise there'd be a "FUCK!, what the fuck did he just post thread"...Somewhere Maybe there will be one anyway. Okay, now my feet are buzzing like a motherfucker. Perhaps I drank a bit too much?

I'll have to let you know if I'm hungover when I'm trying to work tonight. Luckily I'm just the "delivery boy" tonight and not making any intravenous fluids. (Seriously, if it weren't for this browser I would make no fucking sense what so ever.)

Second FYI: The glass half empty/half full coffee cups from Despair.com are a seriously fucking good way to measure your bourbon if you want to get royally get fucked up. Using only a browser that checks your spelling as you go of course. Shit! For a second there it felt like my left foot fell asleep. That's some good shit.



Apparently I'm nowhere near drunk enough because if I was really drunk I wouldn't even notice the little red dotted underlines. If drunk posting gets banned by the Senate or the Mods after this I'm sincerely sorry.

If this post makes any sort of sense you can thank the people at Apple for making Safari for Windows. If it doesn't make sense what so ever than you can blame me, and the Marauder people who make Jim Beam bourbon.

If you still aren't sure that I'm fucked up beyond recognition at this time I'd like to recommend Starship Troopers: Marauder as a video pick. The political satire elements in the flick are fuckin' great! I mean really great. They even rip on the Bible thumper element in the US. At least in the weak assed way that a US based film could. The actual movie leans toward fucking suckin' big time. After some early "this blows!" moments it kind of hits a happy medium where it isn't all that bad and can be quite fun. If you are lame/drunk like me watch the movie with the actor's commentary. It's kind of funny when you realize that Casper Van Dien's wife Catherine Oxenberg: one of the hot chicks in Lair of the White Worm who isn't Amanda Donahoe is checking out his ass in the scene where they all get scanned for the Marauder suits.

Once again I can't recommend a browser that checks your spelling as you go anywhere near enough. Those stupid little bumps on the keyboard are helpful too. Expecially when your vison you starts to blur. Now I'm going to take a piss not quite like a race horse but pretty damn close.

The Mess Rules!

[Durandal]

I just donated $100 to the anti-Prop 8 cause last night. I encourage anyone who cares about the movement for equal marriage rights in the US to do the same. Also, my girlfriend (who I adore), friend and his wife went through a parking lot in San Francisco tearing up pro-Prop 8 fliers that some bigots had stuck on car windshields.

I gotta say, it felt pretty righteous. Fuck the Mormons and their cronies in this state.

[Base Delta Zero]

Isn't that like saying whichever amendment overrules the 3/5ths clause for black people in the US constitution is unconstitutional?

The '3/5ths clause' is in regard to slaves, not black people. Thus, it wasn't repealed by the 13th amendment, just made irrelevant.

[Medic]

And of course everyone who got married before the Proposition goes into effect will remain married after it goes into effect.

Are you sure? Cause the proposed text reads, in it's entirety in the Voter Information Guide:

"Proposition 8

This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8, of the California Constitution.

This initiative measure expressly amends the California Constitution by adding a section thereto; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new.
SECTION 1. Title
This measure shall be known and may be cited as the "California Marriage Protection Act."
SECTION 2. Section 7.5 is added to Article I of the California Constitution, to read:
SEC. 7.5 Only marriage between a man and a woman is valid or recognized in California."

Italicized text not my emphasis, bolded mine. So note the above: it's only an ADDITION and not a change to the Constitution, and marriage not between a man and a woman isn't "valid or recognized." That's quite a bit of legalistic wiggle room.

I encourage anyone who cares about the movement for equal marriage rights in the US to do the same.

After pay-day, apparently I've been as a drunken sailor recently.

[SirNitram]

I believe there's still the nasty snag that the California Supreme's also ruled male-female couples can't have different rights from same-sex couples. Which will create the sort of total chaos that will have the Supreme's stepping in on this one.

[Terralthra]

I believe there's still the nasty snag that the California Supreme's also ruled male-female couples can't have different rights from same-sex couples. Which will create the sort of total chaos that will have the Supreme's stepping in on this one.

If it gets challenged, as a dispute between a state Constitution and the U.S. Constitution, it will almost have to get granted cert by the SCOTUS.

If it comes up before the SCOTUS, the conservatives on the bench would have a hard time overturning the precedent set in Loving v. Virginia that marriage is one of the "basic civil rights of man," but they may go to a New York Court of Appeals decision in 2006 that tried to reason that some of the language in Loving indicated that the decision was based in part on a belief that marriage is quintessentially procreative in nature, as stupid as that is. One wonders if those justices would uphold a law restricting marriage to those of childbearing age and intent?