Prop 8 For Dummies: What to Expect During Thursday's Court Hearing

On Thursday morning, the long awaited Proposition 8 arguments will be delivered to the California Supreme Court. For those who were outraged or saddened by the vote on election day, this three hour window is a chance to get back some of what was lost.

I will be watching the oral arguments on live feed and wanted to set out a little background for those readers who are also interested in tuning in, but have the good sense not to study law for a living.

A few opening points: this argument will actually touch upon a number of cases all surrounding the same issue and all petitioning the same man (Mark Horton, State Registrar of Vital Statistics). The most well known of these cases is referred as Strauss v. Horton. The arguments don't vary much from case to case.

As well, there are a ton of interveners - civil society groups making submissions in writing (briefs) to the Court in support of one side or the other - hoping to alert the court to the impact this decision will have on the lives of people not named as a party to the actions. Each of those briefs raise novel arguments that might not form the center of the challenge to Proposition 8.

The argument against Proposition 8 has two main assertions.

The first - the big picture fundamental rights approach - argues that, once the California Supreme Court found that unequal marriage rights constituted a violation of the equal protection clause in the California Constitution, taking away marriage rights from same-sex couples would constitutionally enshrine a violation of the right to equality. This would create severe internal contradictions in what is the fundamental legal document for the State of California. In other words, equal treatment under the law is so fundamental that you can't take it away, even by amending the Constitution.

This idea of fundamental rights has been recognized in some jurisprudence, but there certainly is no consensus about the existence of these kinds of rights (Although it does make you sleep easier at night thinking that the right to free speech can't just be voted away on a whim).

This leads into the smaller technical argument: Proposition 8 created such a fundamental shift in the fabric of the Constitution that it can't be approved by votes alone and requires a secondary legislative approval process. Amendments to a Constitution are, according to a very old Supreme Court decision, an addition or change to the original legal document. Revisions, on the other hand, are a substantial alteration of the underlying principles of a legal document.

Revisions require approval by two thirds of the state house before a majority vote in order to become law.

When determining whether a proposition is a revision or an amendment, the court looks to the qualitative changes (how much of the document is affected) and the quantitative changes (how many words are added, how many different provisions are effected, etc.). Proposition 8 was very short and only affected one section of the Constitution. That said, if you buy the fundamental rights argument, Prop 8 caused a great shift in constitutional guarantees in California. The opposition to Prop 8 is hoping to convince the Court that the gay marriage ban was significant enough to constitute a revision and must be referred to the state house.

If you're feeling good about these arguments, don't start planning your big gay wedding quite yet. The Proposition 8 supporters have some pretty convincing law on their side (they also have Ken Starr who writes like he's running for office - it's pretty entertaining to read).

First, a large part of the argument against Proposition 8 relies on the notion that parts of the Constitution are so fundamental they cannot be altered even if those alterations are legally executed. Unfortunately, although that makes intuitive sense, no court has stated affirmatively that parts of the Constitution are safe from alteration. Those courts that have hinted at these rights haven't been too clear about what is included in those rights. Perhaps it's just the freedom from unreasonable search and seizure rather than the broad notion of equality.

The broader the sphere of fundamental rights, the less power the people have to control their own lives. Americans are kind of touchy about giving their democratic powers away. You need to be sure you are right when you carve out a section of law and tell citizens they have no effect on its application.

Without a hierarchy of rights that preserves some from amendment, when two provisions within one legal document conflict, the Court usually finds that the specific provision (in this case Proposition 8) overrides the more general provision (the equal protection clause).

Second, the fact that Proposition 8 was passed by popular vote according the amendment requirements means that the Court must assume it is valid. That leaves the petitioners with the burden of proving that the amendment is actually a revision.

Burden is important because when there is a presumption of validity you need to clearly prove your argument to have any chance at success.

Historically, revisions have been long amendments (as in provisions with a lot of words) or additions that affect a large number of provisions. They also might affect the basic governmental structure. It's a break from certain precedents to read the possible effect of a short specific addition as being so fundamental that the amendment is reclassified as a revision.

The single most important element of the Prop 8 supporter's argument is that the amendment represents the will of the majority of the California population. While you can rhapsodize about the tyranny of the majority as much as you like, American history has created a nation of people that value the will of the people over the will of a centralized governing body. Courts are aware of the importance of democracy and accountability and they will need a very convincing argument to override a popular vote.

While courts have a rich history of activism - a history that has led to some of the greatest civil rights progresses of our time - they are often loathe to interfere in the democratic process. Because of this, I think the strongest argument Prop 8 opponents have is that characterizing Proposition 8 as a revision underscores the fundamental change of removing equality rights from a discrete group and also leaves the final decision in the hands of elected representatives.

This compromise may be the best hope for gay marriage in California. Until, that is, the next ballot.

Comments

[zbig]

Instead of bringing this to the CA supreme court, money would've been better spent creating a "Prop 9" that reverses Prop 8--supporters of Prop 8, especially financial supporters, are less likely to support it in 2010 having already sufferred from exposure to Prop 8. Anti-prop 8 have also learned from their mistakes and will most likely be better organized, better supported, more likely to win.

[PhilipB]

I appreciate the information in this post.
Thank you. I read this earlier, and i am referring to it today, Thursday!

[subseeker]

Ostriches hide their heads in the sand, oppossums play dead, chameleons change their color when their enemies approach, and kps888 attempts to hide from her enemy, truth. Very courageous, and very futile. You cannot oppose truth, for it is in the hearts of every man, and this lie will not stand forever. You seek to find symbols to attack, and so attack "religious zealots", minorities, and anyone else who dares to uphold what is written in the hearts of every man. Some of us don't know ourselves very well, and the rest are parked in front of a T.V. all day and can't reason to save their lives. "know thyself", as Socrates advised. Had we a state that engaged in this, we would not have this current waste of time and energy. You amaze me, kps888, for I no sooner showed why there is no relationship between civil rights and the choice of homosexuality, when you pipe up (as if repetitively saying something makes it truth) with a comparison to the segregation of Mississippi. Unsurprising and feeble.

[lovelivelaugh14]

wow--u really have to get out more.

[subseeker]

It is poignantly sad to see the deluded minds of so many. Deluded I know not by what, but seriously deluded nonetheless. When reason perishes from the Golden State, the power we have so long enjoyed will be perishing as well. It is an absurdly simple premise. So simple that many people have outsmarted themselves. Most people know better than to open their mouth and talk, when they know so little, for fear of exposing their ignorance for all to see. As Mark Twain said, "It is better to remain silent and be thought a fool, than to open your mouth and remove all doubt". Yet brotherhood emboldens those, and the thought that if we are all fools, it is not so bad, and so the blathering is empowered.

For all of you crying about rights and your ridiculous protections, please explain why a woman cannot repent and become a man (weird surgeries aside), an african-american cannot repent and become a caucasian (nor would they want to), but a homosexual certainly can, (and thousands have) repented and stop their perverse behavior. It is very intellectually taxing, and and insult and affront to reason, to hear people stridently proclaim the relationship of this vile choice with women's suffrage and the civil rights movement. I would be even more outraged if I were a minority, and had to see my movement compared and put on equal footing with this desecration of morals.

[kps888]

How's the weather down there in Mississippi? I have to call you out as well. You know perfectly well what reaction such a post will produce. People, don't follow my example and respond to this person, it is what they want more than air.

[JHCowboy]

This a h is probably a troll from NARTH. He gets his junk science from the likes of Joseph Nicolosi and other "ex-gay" fraud peddlers from the religiously based "ex-gay" industry. Everyone knows there is absolutely NO hard fact based evidence that "thousands" have changed their orientation. Bigots will always be bigots no matter how they couch their arguments.

[blueskybigstar]

The assumption that a revision takes a lot of words is incorrect. The greatest revisions will always be those with the fewest words.

[bilweeler]

Emma:

Thanks for the thoughtful (and neutral) breakdown of the arguments. Live webcast tomorrow (9:00-Noon, PST) can be viewed at Calchannel.com.

Bill

[dsws]

The bad guys won fair and square on Proposition Hate, and the basic system under which they won -- rule of law, democratic process for determining what the law is, and separation of laws into a constitution to protect rights and define the structure of government and ordinary statutes and regulations for all other purposes -- is the best protection we're likely to get. Protest is warranted, including civil disobedience; judicial action on unsound arguments is not. Revising the CA Constitution so that basic rights cannot be denied by simple majority vote is warranted; disregarding the CA Constitution is not.

[M1]

The true bottom line in the Prop 8 debate is that the CA Supreme Court already said that Civil Unions were a badge of second class citizenship, marriage was a fundamental right and Gays are a protected class. So, do they have the Courage to follow this to its principaled conclusion?

After all the burdens, presumptions and fears that Constitutional rights may be abridged under compelling circumstances are put to rest, what remains is whether the court will stand by it decision and give effect to full equality for Gay people. If the Court fails to do so even prop 8 supporters will understand, by instinct, that the Court has decided to treat Gay people unfairly and inequality will win the day. Gays will understand that the rule of law is no law at all for Gays. Both sides will lose respect at at a gut level for our court because they will instinctively know it furthers inequality of an entire class of Americans.

In the end, this case will be decided by either courage or lack of it to do the "right thing" and utilize our rule of law to further equality and justice for all Americans. Only time will tell the courage of the CA Supreme Court.

Make no mistake....this case rests upon the Courage of ordinary people to stand up and do an extraordinary thing....to serve justice when the public seeks injustice and tyranny.

[Pippen]

Will you be saying that if those who support Prop 8 "stand up and do an extraudinary thing...to serve justice....." ? I think not.

Both sides believe they are right of course. And both sides have legitimate arguements both with compelling issues.

Neither side is willing to concede even the slightest ground regardless of the ruling. Both sides would rather gamble all or nothing.

The fallout will most definitely hit the politicians who act.

The Supreme Court is not going to side against Prop 8 they are going to go neutral or force the issue into the state representatives hands. SCOTUS is largely still conservative.

States will throw it back to the courts and it will go round two or three ding ding to buy more time til the next set of politicians take office.

But even if the state does cast Prop 8 down, the movement still has to get the US Government to acknowledge the marriages otherwise whats the use ? And we already know Obama will not support gay marriage just civil union.

[marxmarv]

"But even if the state does cast Prop 8 down, the movement still has to get the US Government to acknowledge the marriages otherwise whats the use ?"

The State is free to bestow its benefits on whoever it pleases. The State has very broad latitude to set its own tax and probate law, among other things.

[Pippen]

A time line of "decisions" and "reads" is kinda what the article implies but I appreciate the analysis.

[follyeoa]

Sounds to me like there are some very serious flaws to the California constitution. I do not know of any other that allows an amendment by s simple majority vote. The strenth in any constitution ilies in the protection of the rights of a minority.

[JohnBisceglia]

Not all of us will "wait patiently "for a court to deem us worthy enough - Civil Disobedience is the only answer:

1. All gay and lesbian couples should file as married if they consider themselves married.

2. No gay person owes the I.R.S. a penny UNTIL equal.

As a gay man, the utter LACK of concern from our fellow heterosexuals (including our own family & friends) can be overwhelming at times. They often forget we still experience all of the challenges they do in American Life, PLUS. Actually, PLUS + +, due to legal inequity.

I'm still waiting for the Exalted Heterosexuals to give me ONE GOOD LEGAL REASON why I cannot marry the man I love. Just One. I've been waiting my entire lifetime. I'm tired of waiting. I'm tired of "having to make the case" (thank you Jon Stewart). I'm tired of begging for what others get without question. I'm tired of pleading and donating and protesting and trying to reason with the unreasonable and irrational.

I now revolt - I fully support Charles Merrill's tax case against the federal government - Click my profile if you want more information; google.

[randyjet]

The reason is that there is NO benefit to the state for gay marriage. When homosexual sex results in children, THEN I WILL be in favor of gay marriage. Just because the state can and does grant things such as subsidies to one business, does NOT mean that ALL businesses are denied their "rights" if they don't get similar subsidies. That is the analogous situation.

Marrage is a legal contract that the state grants for ITS purposes. It is NOT a grab bag of goodies that all are entitled to. Nor do we allow plural marriages either. A man and woman cannot marry the person that they love if they are already legally married. So are they therefore denied their rights?

[Petesdaddy]

There is nothing in the heterosexual marriage contract that says that the married couple must produce children. Many married couples do not have children, either by choice or by circumstance. The world is full of unwanted, disadvantaged, abused, neglected children, most of them the progeny of heterosexual people who have neither the desire, the skills, or the means to care for them.
When marriage results in FEWER childer, we will be a healthier society.

[Susan Bruther]

According to your argument couples past childbearing years should also not be granted the right to marry, after all the state doesn't see a benefit from their marriages either. What about men who have had a vasectomy or women who have had a hysterectomy? Funny prop 8 didn't mention those circumstances.

[BobSF94117]

If there's no benefit to the state, I guess that means you'll be more than happy to pick up the tab for my retirement and medical costs later in life. I mean, if your attitude prevails, there's no way I'll rely on my partner (or that he'll rely on me) when you're so sure we can't help each other and shouldn't be expected to.

[Gidster]

My brother and his wife have no interest in children, so by your logic their marriage is invalid. What about infertile women or men, are their marriages invalid as well.
You have a narrow view of what marriage means. Your wife must be so happy.

Divorce is available to those already married and in love with a third party.

Marriage is a civil union authorized by the State, church participation is optional.

Your being in favor of something as fundamental as marriage equality is irrelevant to the issue.

There is also a Tyranny of Majority issue involved in Prop 8's passage.

[complice]

Many couples wed without any intention of conceiving children. Some couples face the heartbreak of infertility, some couples divorce and remarry once their children are grown and independent, while some still simply have no interest in the prospect of raising families. According to your logic, these heterosexual couples automatically forfeit their rights to enter into legally-sactioned relationships. If you're going to argue that marriage is simply a vehicle for procreation, you at least ought to be a bit more consistent.

[FlexSF]

"The broader the sphere of fundamental rights, the less power the people have to control their own lives. Americans are kind of touchy about giving their democratic powers away. You need to be sure you are right when you carve out a section of law and tell citizens they have no effect on its application."

The people have used prop 8 to control our private lives, and limit our liberties. Americans have used their democratic power as a weapon against us. They have abused their power, and in doing so, voted our right to marry away. They have carved out a section of law and told us, you are not entitled to these equalities.

This is what we will show the court, and hope they side with us. Is the California constitution so weak that it must rely on the federal protections to grant equality to it's citizens? Can we pass an amendment to ban people with grey hair to move out of California? The pro prop 8 side thinks so! They believe that they can use it for anything. We're supposed to rely on the "good will" of the people.

There is no good will intentioned with prop 8. It is pure religious bigotry!

[randyjet]

When you ask the STATE to grant you a legal contract, your act is NOT private, but PUBLIC and are asking the state for a favor. Nobody is denied ANY liberty since you can live and do whatever you please in your PRIVATE life. We don't have sodomy laws any more if you haven't noticed.

[limmic]

By your rational, the state of California could just refuse to grant marriage licenses to, say, Mormons.

[LeftRight]

randy,

That is, without a doubt, the WORST argument you've EVER come up with!!!!!!!! The fact of the matter is that the reason that Loving v. Virginia went the way it did was because they were telling the people what they could and could not do in their PRIVATE LIVES!! Just like the sodomy laws!

Marriage is a PERSONAL PRIVATE choice, that the state happens to encourage, finding that society performs better with some sort of marriage. Therefore, it IS a private matter, which you happen to need a license to perform legally, if you want the CONTRACT aspect of it enforced!

[FogCityJohn]

One thing that you didn't mention are the implications of a decision upholding Prop. 8. If the court were to rule that a simple majority of voters could take away rights guaranteed by the state constitution's equal protection clause, then a ballot initiative could, as a matter of state constitutional law, reinstate the state's ban on interracial marriage. (Obviously, the federal constitution would void any such initiative, but I'm speaking solely of the state constitution here.) After all, the only thing that invalidated the anti-miscegenation law in California was the California Supreme Court's reading of the state equal protection clause in Perez v. Sharpe. Are the justices of the California Supreme Court ready to hold that majorities of voters can basically do anything they wish to the rights of minorities and that a majority vote leaves the courts powerless to intervene? I hope that they will think twice before so holding.

[bruster55]

I agree with you on this issue, but would like to point out that by upholding prop 8. the courts would be declaring that no one has the right to marry. Marriage is now a privledge to be controlled by the state.

[LeftRight]

Which it's been for years. Right now, if you are a straight man and want to marry a straight woman, you can do that without a license, but you will have none of the legal rights associated with it.

[randyjet]

Marriage is a legal preference granted for the interests of the STATE as well as that of the couple. THAT is why gay marriage is NOT a right. The FACT is that the Supreme Court of the US only said that HETEROSEXUAL marriage is a right, NOT gay marriage. So it is a REAL stretch to say that Loving decision should be applied to gay marriage as well.

[ColumbusMike]

Doesn't sound very encouraging.

[DavidOnTheMedia]

I think it is important to mention that the Cal Sup Ct already over road a popular vote on Prop 22 and may just as well do so again. Also, in the last paragraph last sentence before your closing line, don't you mean Prop 8 detractors, and not "supporters"?

[FlexSF]

I was confused by this too. But, she is not a legal expert either.