{ Lawsuit to overturn Prop. 8 may face uphill battle… }

CA Supreme Court Building

CA Supreme Court Building

…So says the O.C. Register. I’m glad to see that they are finally getting in the mood to report on the battle to protect traditional marriage. Here are a few great points made in their article on the Supreme Court Battle to un-protect traditional marriage, discussing equal protection and historical precedent. Although I don’t agree with the Supreme Court even hearing these frivolous cases in the first place, at least they had enough sense to let the democratic process play out before trying to exert their usurped law-making authority,

Gay-marriage advocates tried to challenge the legality of the measure in June, immediately after it qualified for the ballot. Courts ruled that the matter would not be considered until voters approved it.

Power definitely plays a huge role in the homosexual agenda and right now they happen to be seeking power over marriage.

“Anything that really goes to the heart of power, like term limits, or social issues, like gay marriage, frequently gets targeted,” said John Eastman, dean of Chapman University’s School of Law.

“It’s unusual for the court to throw out something entirely, particularly a constitutional amendment,” said Bob Stern, president of the Los Angeles-based Center for Governmental Studies.

Although no hearing is expected before March, there is some good news on the traditional marriage front,

Proposition 8, which won by a 4-percent spread, amends the constitution. In doing so, it makes it more difficult for courts to invalidate as unconstitutional. While gay-marriage advocates are eager for the state Supreme Court to take up the matter, the Yes on 8 campaign is confident it will prevail – so much so that it too urged the high court hear the legal challenges promptly and make a determination.

The article presents some insight into the argument over ‘equal protection’

The six Prop. 8 lawsuits all hinge on whether the measure qualifies as a “revision” or an “amendment” to the state constitution. Prop. 8 was approved as an amendment, but petitioners say it makes such a fundamental change to the constitution that it needs to be passed as a revision to be valid.

The difference is so important that it provides the basis to overturn a vote of the people.

The California Constitution specifies that amendments can be put on the ballot through a petition drive, which was the approach used for Prop. 8. But revisions can only be put on the ballot by a two-thirds vote of the state Legislature or by a rarely used constitutional convention.

The article then points out that the Constitution explains these procedures, but does NOT distinguish when they should be used.

That question was left to the courts, which have ruled over the years that major changes are made through revisions while minor ones are made with amendments.

“The key distinction,” said Shannon Minter, legal director of the National Center for Lesbian Rights, “is that a revision (changes) the underlying principles or structure (of the constitution) while an amendment is consistent with the underlying principles and structure.”

The suits argue that Prop. 8 represents a major change because it alters the constitution’s core principle of “equal protection.”

Prop. 8 supporters say the measure trumps “equal protection” clause when it comes to wedlock by providing a simple definition that marriage can take place only between a man and a woman. They say it otherwise does not change the constitutional protections of minorities or the underlying principles of the constitution.

A little history on ‘historical precedent’

Yes on 8 attorneys cite a 1972 state initiative as precedent. After the state Supreme Court banned the death penalty as “cruel and unusual punishment,” voters approved a measure – Prop. 17 – that amended the constitution to say, in effect, the death penalty was not cruel and unusual punishment and could be used.

Prop. 17 opponents sued unsuccessfully, and the voters’ definition of the death penalty overrode the court’s prior interpretation of the constitution.

Yes on 8 attorney Andrew Pugno says his measure is like Prop. 17 because it’s tightly focused and “doesn’t change how government functions.” Because of that, it is a valid constitutional amendment and doesn’t necessitate a constitutional revision, Pugno says.

Stern is among those who counter by pointing to 1964’s Prop. 14, an initiative to eliminate the state’s housing discrimination law. But while Stern says that’s an example of the equal-protection clause trumping an initiative, he’s not so sure the court will see Prop. 8 in the same light.

“My guess is that the court will find it a valid constitutional amendment,” he said.

Eastman, co-author of a letter to the court on behalf of Prop. 8 proponents, thinks the issue is cut-and-dried to uphold the ban on gay marriage. However, Eastman worries that the court showed with the Prop. 22 ruling that it supports gay marriage – and that sentiment may influence its interpretation of the current lawsuit.

“Unfortunately, our courts are looking for the outcome they want,” he said.

The article also points out that, “legal challenges of propositions are common.” So it looks like gay rights activists aren’t the only so-called “minority” group to be bitter that their “cause” was voted down by the majority, and they certainly aren’t the only group that has ever been sue-happy.  The article points out some other, “notable state propositions that have been challenged in court:”

Source: ocregister.com “Lawsuit to overturn Prop. 8 may face uphill battle”



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