Friday, March 13, 2009

Prop 8 WILL be Overturned...The LA Times Miscalled It



The LA Times has wrongly called oral arguments against Prop 8 before the Supreme Court last Thursday a lost cause. Luckily, I was there when it happened with an in-depth analysis of the case regarding Proposition 8—a measure that amends the California Constitution in a way that strips homosexuals of the right to marry.

Last year, the High Court ruled that Prop 22—a part of the Equal Protection Clause in our Constitution that recognized marriage as only between one man and one woman—was unconstitutional because it stripped a suspect classification of a fundamental right. Now Prop 8 has been called Prop 22 turned into an amendment. The Supreme Court will have to decide whether Prop 8 constitutes an amendment or a revision to the California Constitution in determining its validity.

Shannon Minter of the ACLU argued that not only did Prop 8 take away “the fundamental right to marry from same-sex couples...without compelling government interest,” it enacted a “wide-sweeping change in governmental structure.” Minter argued that the case of “Livermore v. Wade” held that amendments cannot change the core underlying concepts of our Constitution (the Equal Protection Clause of our Constitution is a core underlying concept). Furthermore, it was argued that the people cannot use the initiative process to reinstate a statue the Court has ruled unconstitutional, instead it must follow a separate process outlined in the Livermore case called the revision process, where parts of the Constitution are revised in order to make a proposed statue mesh with the existing framework of the Constitution.

When asked by Chief Justice George about how the case “People v. Frierson” played into his argument, Minter retorted that Frierson “did not strip a fundamental right from a suspect classification. Instead it reinstated a remedy clear across the board.” Raymond Marshal followed up on that point arguing that Frierson was a ruling on “the definition of cruel and unusual punishment,” not the case of an amendment vs. a revision. What happened in the Frierson case was that the death penalty was ruled cruel and unusual punishment and was hence repealed. The people recalled three Justices of the California Supreme Court, replaced them with Justices who ruled the death penalty was not cruel and unusual punishment and hence reinstated it. Dad said no, so they ran to mom.

The Supreme Court went on to ask Theresa Stewart of Lamda Legal how the case “Raven v. Deukmejian” does not affirm the people's ability to remove fundamental rights from a suspect classification. Steward argued that the Raven case constituted a revision because it “removed the power of the State to interpret its own Constitution” but still “did not take personal rights away from one group.” Raven was Prop 115 which stated criminal's rights could not be interpreted any differently than the US Federal Constitution dictated them. That constituted a revision and was thrown out on the grounds that it was a revision, not that it removed rights from a suspect class. Both of these cases restored remedies. What that means when compared to Prop 8: Apples to Oranges.

According to Chief Justice George, since the High Court has never had a case like this before, under the second prong of the 2 part test the Court has established for determining a revision (prong one a quantitative test; prong two a qualitative test), the Court is not limited toonly structural changes in government, and leaves open the possibility that fundamental changes in social rights may constitute a qualitative revision. In fact, it even articulated a possible ruling that “an initiative that alters a fundamental right of a suspect classification constitutes a revision,” according to Justice Corrigan.

Assistant Attorney General Chris Krueger's argument was slightly more novel in that even if Prop 8 is an amendment, it is an ultra vires amendment that the Court has no compelling state interest in upholding. “Amendments cannot be used to take away civil liberties without a compelling State interest,” argued Krueger citing the Raven Case. Courts can indeed strip fundamental rights from suspect classifications, but only if there is some very very good reason pertaining to a State's governmental structure and the ability to run itself. What possible benefit to our governmental structure could not recognizing gay marriage have? Kenn Starr of Pepperdine University, who represented the Intervenors, thinks he has an answer.

“The will of the people is sovereign even if unwise,” argued Kenn Starr. When asked by Chief Justice George if an amendment could be enacted to repeal the freedom of speech, Kenn Starr replied “as long as the people knew what they were voting for, yes.” To quote a movie featuring another famous code of laws, “they're more like guidelines anyway.” “It is the people's right to decide what is wise when it comes to their own legal structure,” argues Starr. My response: then what do we have Courts for? This constitutes a HUGE sweeping change in governmental structure. It takes the power of the Courts and puts it in the hand of the people. The end result: Mob Rule. Out of all the Justices, only one, Justice Kennard, vocally expressed a somewhat agreeable opinion that the people were sovereign but prefaced it by saying “in my opinion.”

According to the Preamble of our California Constitution, Theresa Stewart of Lamda Legal argued that “we the people came together to enact a legally binding document called the Constitution, and we understood that we the people meant all people because it says so in the Preamble.” In response to Starr's argument, this means that all people came together in a legally binding agreement to follow the rules and procedures they set forth in the Constitution, and that there would be a uniform process for revising or amending the Constitution. That is a core underlying principal which Prop 8 upended and went around.

“What I'm picking up is that this Court should willy-nilly disregard the will of the people,” Justice Kennard insenuated. Stewart answered that accusation by saying that the people could likewise not willy-nilly disregard the rules they placed upon themselves. The people do in fact have a “very broad power to amend their Constitution” but must do so in the way they entered into a legally binding agreement to do. If the people don't have to follow their own rules and they don't have to follow the Court's rules, whose rules do they have to follow? What's the point of even having a Constitution if the people have some inalienable right to “willy-nilly” disregard it at will? “Enforcing the statutes while ignoring the reasons they were enacted is like protecting the moat while allowing the castle to burn down,” argued Stewart.

“Doesn't Prop 8 only take away the nomenclature of marriage?” asked Chief Justice George. In a resounding hypothetical, Petitioners suggested that women in California cannot serve on the Judicial Bench, and addressing the Justices themselves, “Justice Corrigan, Justice Kennard, you would be called Commissioners (given your gender), while Chief Justice George would be called a Judge.”

“Justice,” the Court corrected.

“So what, it's only nomenclature right? It's not that important.” That point hit home and even got a laugh out of the Justices. Shannon Minter of the ACLU argued that the elements of marriage are organically intertwined and removing any element changes the entire institution.

Kenn Starr believed that while “denying only the recognition” of marriage did not take away any other rights of same-sex couples, people can wake up tomorrow and find they're not married but it shouldn't bother them because they have the putative spouse remedy. That was the argument Kenn Starr used to attempt to invalidate the 18,000 same-sex marriages already performed, to which the Court said “that was the law of the land at the time, and if the people cannot rely on this Court to tell them the laws, who can they rely on?”

The most important reason why Prop 8 should be invalidated according to the Petitioners is because of the foundational guarantee of equal citizenship. Prop 22 is still unconstitutional, the issue being looked at is do the people have a right to carve an exception out of equal protection? “A conditional guarantee of equal protection is no guarantee at all,” argued Stewart.

“Kenn Starr is arguing a system of Democracy, fortunately it is not this state's system of Democracy,” said Mark Rosenbound, Legal Director for the ACLU in a post-hearing press conference. “California is not a system where minorities' rights are subject to the whim of the majority. If Proposition 8 is upheld, there is no limit to the discrimination that can be mandated by the Constitution.”

Erik Dutch, a long time resident of North Hollywood, seems to agree. “If they want to get married, go for it, let them be miserable just like the rest of us!” However, the hate among some supporters is so ingrained that when Kenn Starr was asked by the Court if calling all marriages in California “civil unions” would satisfy them, Starr said it would. They would give up the right to marry completely before sharing it with homosexuals. Go for it! Then after all this has blown over, lets change the nomenclature of civil unions back to marriage!! (Just nomenclature right?).

When I personally asked Mark Rosenbound about Kenn Starr's comparison of gay marriage to pluralist marriage, Rosenbound responded that “being gay is not a lifestyle. A homosexual individual can turn around tomorrow and choose to be straight as easily as a heterosexual individual can turn around tomorrow and choose to be gay.”

If it's an amendment, it flies. If it's a revision, it dies. Essentially, here are the two side's arguments in perspective: one side, “they're taking away my right to marry the person I love.” The other side, “they're taking away my right to take their rights away.” The Court will decide which right they do and do not have. For everyone who was scared by the LA Times' lack of comprehension in reporting on this case, DO NOT WORRY. Do not stop believing in what you believe because it is unpopular and no matter what the outcome, get ready for rippling repercussions. As the ACLU and opponents of Proposition H8 have so unanimously resounded, “win or lose, this is just the beginning.”

75 Comments:

Blogger Alison said...

Wow! This is a really in depth analysis! I totally agree, but I have learned never to trust people in power.

9:08 AM  
Blogger Nikki_Jilton said...

People think that this court hearing is like the Presidential Election-- the smoothest talker wins. It doesn't work like that in the courts, this time its intelligent people talking to other more intelligent people, and whoever is ACTUALLY right wins.

What I'm worried is going to happen is that since the No on 8 campaign is already preparing to lose--gathering support for another counter-amendment--the Courts are just going to cover their asses and rule in favor of the Yes ppl so that they don't have to risk being recalled. The idiot, socialist press already called it in favor of the other side, so no one will riot if the other side wins. This is pretty dangerous IMO. The No community needs someone like Harvey Milk right about now.

2:08 PM  
Anonymous latifah said...

Really great post, Nicole! Very thorough and you touch on so many truths. I completely agree, and believe that Prop 8 will be overturned. I'll take your advice and not worry. :)

3:51 PM  
Blogger Michael Ejercito said...

Did the original state constitution (adopted in 1879) have an equal protection clause?

If not, when was it adopted? And how ?

11:49 AM  
Blogger Michael Ejercito said...

Raymond Marshal followed up on that point arguing that Frierson was a ruling on “the definition of cruel and unusual punishment,” not the case of an amendment vs. a revision. What happened in the Frierson case was that the death penalty was ruled cruel and unusual punishment and was hence repealed. The people recalled three Justices of the California Supreme Court, replaced them with Justices who ruled the death penalty was not cruel and unusual punishment and hence reinstated it. Dad said no, so they ran to mom.
This is incorrect.

The Frierson case upheld the death penalty.

It upheld an amendment declaring that capital punishment was no longer cruel and unusual.

That amendment was passed after the Court's ruling in Anderson , which declared capital punishment to be cruel and unusual.

1:21 PM  
Blogger Nikki_Jilton said...

Yes, first there was Frierson, then there was Anderson. None upheld any AMENDMENT, Anderson changed the definition of cruel and unusual punishment. It still did not strip a suspect class of a civil liberty. Amendments can ADD to the constitution, Revisions TAKE AWAY. You can add an Equal Protection Clause by popular vote, you cannot take it away by popular vote. Apples to Oranges Michael.

3:20 AM  
Blogger Nikki_Jilton said...

The key case was People v Frierson, it was just easier to refer to the whole shpeel as "Frierson" instead of going back and forth between Frierson and Anderson.

3:22 AM  
Blogger Michael Ejercito said...

So you are arguing that the people can add a clause to the constitution by initiative, but can not use that same process to take away that exact same clause .

Anderson did not change the definition of cruel and unusual punishment; it interpreted the death penalty to be a violation of cruel and unusual punishment. Proposition 17 overturned that.

11:29 AM  
Blogger Nikki_Jilton said...

Nope. "Any amendment that strips a fundamental right from a suspect classification constitutes a revision" --Justice Corrigan.

No, you can't use the initiative process to take rights away. You use a different process called the "REVISION" process. It makes sense to use a different process, after all, you would treat hugging someone differently than you would treat slapping someone.

This whole case is a waste of time. Even if the court somehow rules that the people can place an unconstitutional amendment in the constitution via initiative process, it still doesn't change the fact that it is UNCONSTITUTIONAL (which is IS, the courts ruling last year still hasn't changed), we'll just have to go through the same lawsuit all over again and it will be a repeat of last year and waste of ridiculous amounts of money that could do better things for this economy than take away someone's rights.

Like it or not, gays will marry, and I don't understand WHY people don't like that.

11:58 PM  
Blogger Michael Ejercito said...

"Any amendment that strips a fundamental right from a suspect classification constitutes a revision"
What court decision is this opinion found in?
Even if the court somehow rules that the people can place an unconstitutional amendment in the constitution via initiative process
Constitutional amendments are, by definition , constitutional.

11:33 AM  
Blogger Nikki_Jilton said...

If you would have READ MY ARTICLE, you would know who said that. Now I know that you're just commenting on the issue and probably didn't even watch the hearings.

"Constitutional amendments are, by definition , constitutional."
Now who said THAT? Cite your source.

Separate but Equal was unconstitutional. Plessy vs. Ferguson, Brown vs. Board of Ed, ringing any bells? I'm a political science major, I sure hope you're a lawyer or a politician or someone who has the authority to know what they're talking about and not just some random Mormon who voted yes because their pastor told them to.

10:11 PM  
Blogger Nikki_Jilton said...

Just a note to anyone else reading this feed-- I've heard a few people say that the court doesn't have the authority to overrule the will of the people--that's pretty much precisely the exact job of the court, to intervene in matters between people and overrule one entity in favor of another. Mob rule is not an accepted form of government. Our Representatives and law officials make our laws to which we as citizens have entered into a legal agreement to follow, and our "freedom" gives us the power to decide who those Representatives are. We've got indirect power to control what rules we follow, indirect, not direct. Our Representatives can overrule the will of the people, so you better make sure you know who you're voting for next time you vote...provided you vote like people died for your right to do so.

10:22 PM  
Blogger Michael Ejercito said...

If you would have READ MY ARTICLE, you would know who said that. Now I know that you're just commenting on the issue and probably didn't even watch the hearings.
If it was said during the hearings, then it was not part of a court decision .

Cite a previous California Supreme Court decision where it was suggested that only revisions can withdraw legal protections of fundamental rights.
Plessy vs. Ferguson, Brown vs. Board of Ed, ringing any bells?
Those are federal cases, and they deal with race .

9:02 AM  
Blogger Nikki_Jilton said...

The deal with the fact that constitutional amendments are NOT by definition constitutional.

Go back and read my article, I cited my sources a ton of times and am not going to rewrite the entire thing here just for you.

Answer this question though: what exactly offends you so much about gays marrying? That is what's throwing me, the fact that people are so dog-gone up in arms about taking other people's rights away. Why? What effect does it have on you whether someone gets married or not (and don't use the LIE that they're going to teach it in schools, and so what if they do, they already teach it in health class).

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