004_prop8.jpg

Okay, where was I? Oh yes, it was OK for us to vote out people’s rights by a stupid ballot initiative in California.

Pages 84-122: Yes, all those cases in the previous 40+ pages were very interesting past history, but how does this all relate to Prop 8? I’m so glad you asked!

So you can only “revise” the Constitution by a constitutional convention (which changes the structure of the government), but thanks to Hiram Johnson, the voters can make any changes we want to the Constitution by “constitutional amendment.” That includes the right to redefine fundamental civil rights like gay rights, because we don’t have anything in the California Constitution saying you can’t do that. This Constitution sucks.

Not in the document but some tentative legal thoughts: Okay, this is just me thinking: So technically, you probably could pass a ballot initiative making it okay to discriminate against African-Americans or taking away the right of women to vote in California — but the difference is if that passed, you could appeal to the federal courts that such a ballot initiative was unconstitutional under the US Constitution. Since the federal constitution hasn’t recognized a fundamental right of gays to be protected (yet), we don’t have that option here, unless someone wants to take this one through the federal court system next. Legal scholars out there, feel free to clarify or argue with me about this one!

Pages 128-135 : ….so what happens to people who got married before Prop 8 passed? The basic rule in California is that changes to the law don’t go backwards unless you explicitly say they will, and the court decides that Prop 8 didn’t clearly say it would go backwards — so if you got same-sex married before November 4, 2008, you’re still married in the eyes of the law. How much money are we losing in the California economy because we’re not marrying same-sex couples now??? It’s a recession, people! We need all the money we can get!

Justice Kennard concurrence (separately numbered): Not my fault, blame the electorate.

Justice Werdegar concurrence: If civil unions are so awesome, you better make them exactly the same as getting married, California. (i.e., does anyone want to sue over the fact that civil unions aren’t the same as getting married?)

Justice Moreno, concurring and dissenting: Are you serious? Can you really just give away people’s fundamental rights? No on 8. (The “concurrence” part of the opinion is because he agrees that same-sex marriages before Nov 4, 2008 should remain valid.)

Okay, I think that’s it. See you guys at the protests this evening.

Also — here’s a question for you. We had same-sex marriage all the way through the state legislature back in ’05 and again in ’07, but Schwarzenegger vetoed it both times. So why has he been all like, I support gay marriage and I’m bummed they didn’t overturn Prop 8 this time around?

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  • Greg Dewar

    Great analysis, Rita. And yet another reason it’s time to ditch the current joke of a constituion we have. I remember in college one of my professors pointing out the many inconsistencies in it, and how it’s one of the worst written and oft amended constitutions in the world.

    between this, the fact that any idiot with a fat wallet can pass some dumbass budget busting “law” and whatnot, and the fact that our system of government clearly doesn’t work it’s time to hit the reset button. The Bay Area Council, the Courage Campaign, and many concerned citizens are finally getting this going and it’s about time!

  • Greg Dewar

    Great analysis, Rita. And yet another reason it’s time to ditch the current joke of a constituion we have. I remember in college one of my professors pointing out the many inconsistencies in it, and how it’s one of the worst written and oft amended constitutions in the world.

    between this, the fact that any idiot with a fat wallet can pass some dumbass budget busting “law” and whatnot, and the fact that our system of government clearly doesn’t work it’s time to hit the reset button. The Bay Area Council, the Courage Campaign, and many concerned citizens are finally getting this going and it’s about time!