Wednesday, November 19, 2008

Official Supreme Court Case Filings on Prop 8

High Court Denies Requests to Stay Enforcement of
Proposition 8 and Agrees to Decide Issues
Arising Out of Proposition 8

Here is the Official Filings for the California Supreme Court on Prop 8.

This is complicated politics and this is simple politics. The argument against Prop 8 seems to be that it is a Constitutional Revision instead of a Constitutional Amendment, and has not gone through the proper channels that a Constitutional Revision must go through in order to be enacted.

So far from what I have read, the simple politics is that in 2008 the California Supreme Court struck down a law called "Family Code 300" and "Family Code 308.5" because it violated the California Constitution's "Equal Protection Clause" and the right to marry. This led to the striking of Family Code 308.5 from the California Constitution all together in June of 2008. The High Court found that Family Code 300 was sexual orientation discrimination and that sexual orientation is a suspect classification, which is basically affirming it as a minority.

Here is the ruling in that Case. Apparently, the High Court went back and asked the question "what is marriage?" In order to answer that question, they determined what the aims of marriage where. The aims of marriage were for two adults to love each other in a relationship, establish an officially sanctioned family, and if they so desired, to raise children within that family. The High Court ruled that being of opposite sexes is not a necessary prerequisite for those conditions, that two adults of the same sex are capable of forming a loving relationship and raising children. Therefore, Family Code 308.5 was a hindrance to their ability to do so successfully as residents of the State of California.

Now, Prop 8 adds a provision to the California Constitution that is identical to former Family Code 308.5 stating "only marriage between a man and a woman is valid and recognized in California." Essentially, the voters are trying to reverse a decision that the Supreme Court ruled on.

What it means to strike something from the Constitution or rule something "Unconstitutional" is to say that "it never should have been there in the first place." The fact that Family Code 308.5 was on the books means that it was interfering with the Constitution, and in 2008 High Court finally affirmed that it was and had it stricken from the books.

Now essentially what Prop 8 wants to do is put it back on the books. BUT here's the deal. If Prop 8 is put on the books, the Constitution will not work because not everyone will have the same equal right's that the Constitution guarantees them. That's why the original law was struck down. You cannot put a law on the books that makes the Constitution not work, so, since Prop 8 passed and now has to go on the books, the Constitution would have to be REVISED in order for Prop 8 to work. Therefore, Prop 8 is a REVISION to the California Constitution.

A REVISION to the Constitution cannot be passed by popular vote, it needs a 2/3 majority vote in the California Legislation. Prop 8 did not go through the proper legislative process, therefore it cannot be added to the books, and must be ruled "Unconstitutional" because it would make the Constitution as a document ineffective.

Now, to pass Prop 8 the legal way, it would have to be submitted as a Bill to the California Legislature and they would have to vote on it with a 2/3 majority, and then it could be submitted to the people for passage or non-passage. Prop 8 did not follow this route, therefore it should be deemed Unconstitutional now, be rewritten as a bill by whoever cares enough about it to rewrite it and resubmitted through the Legislature for approval or disapproval.

Do you see now? So to anyone who says "the People have spoken," no, the Mob has spoken. American is not run by Mob Rule, which is what pure Democracy is.


Blogger C-dell said...

first thanks for the comment I love it when you stop by.

Now you are right Prop 8 is wrong legally. Personally I think it is wrong to try and deny people their civil right, because you disagree with their life style. based on your comment it would seem that you would like prop 8. the fact that you don't gives me hope that people can actually just believe in what is right rather than what their side says believe in.

9:56 AM  

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