{ 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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{ Ask Governor Schwartznegger to support the will of the voters }

Sign the petition here

Almost 10,000 people have already signed this petition. The letter being sent with our signatures will say the following:

Dear Governor Schwarzenegger,

Since election day, you have made comments urging the California Supreme Court to overturn the citizens’ will in passing Proposition 8 in California defining marriage as between a man and a woman. This was passed after a rigorous election process by a healthy margin of 52% to 48%.

You have recommended that the state Supreme Court declare the initiative unconstitutional and said, “The important thing now is to resolve this issue.” The election passing Proposition 8 did resolve the issue, according to the most basic tenet of our free society, which is based on the “consent of the governed.”

When Thomas Jefferson put that language about “consent of the governed” in the Declaration of Independence, it was not just a nice-sounding phrase, but the keystone of the Declaration and, indeed, the entire revolution. It captured the fundamental reason the colonists had decided to leave the British Commonwealth, and why they were willing, as the Declaration put it, to “pledge their lives, their fortunes, and their sacred honor” to the cause of independence. The hallmark and foundation of this country is the “consent of the governed.”

James Wilson of New Jersey, who signed both the Declaration and the Constitution, wrote that “the only reason why a free and independent man was bound by human laws was this – that he bound himself.” In other words, he consented to be bound by them, because he participated in the process.

To try to overturn an election is an insult to voters and undermines the democratic process. As governor, it is your responsibility to support and defend the California constitution, which now reads that marriage is between a man and a woman and the foundation processes of our country that are based on “consent of the governed.”

We urge you to:

* Publically accept the results of the ballot initiative as the will of the people
* Publically recant any suggestions that the California Supreme Court should overturn the voice of a free and fair election.
* Condemn the recent assaults upon the First Amendment rights of supporters of Proposition 8. We echo what the Protect Marriage coalition has said, “Amidst all this lawlessness, harassment, trampling of civil rights and now domestic terrorism, one thing stands out: the deafening silence of our elected officials. Not a single elected leader has spoken out against what is happening.” We look to you to speak out against those who would silence free speech by targeting donors, disrupting church services and vandalizing property.

Sincerely,

Your Name & Address Here

{ State Attorney General Urges Supreme Court to Keep Proposition 8 in Effect During Review }

Attorney General Jerry Brown

Attorney General Jerry Brown

The Sacramento Bee reported yesterday that State Attorney General Jerry Brown has urged the CA Supreme Court to keep Proposition 8 in effect while they review law suits. Same-sex marriage proponents are upset that Proposition 8 drastically changed the state Constitution, because as this article suggests, only the Legislature can place this type of measure before voters. I think that everyone was aware of the intention of Proposition 8, and voters voted in favor of it, over 50%, and Prop 8 was allowed on the ballot. The time to dissect and analyze whether or not it was legal was way before now……The people have already spoken!

Jerry Brown: Keep Proposition 8 in effect for review
By Aurelio Rojas
arojas@sacbee.com
Published: Monday, Nov. 17, 2008

State Attorney General Jerry Brown today urged the California Supreme Court to review legal challenges to Proposition 8, but steered clear of taking a position on the gay marriage ban measure approved by voters.

In a written responses to three lawsuits seeking to overturn the initiative, Brown’s office said the state’s highest court should allow the measure to remain in effect during the review period because of the confusion that a stay of the measure would cause.

“Due to the potential uncertainty that may be caused in important legal relationships by a temporary stay, the public interest would be better served by allowing Proposition 8 to remain in effect while expediting briefing,” the Attorney General’s Office said in its response.

Brown, whose office is supposed to defend the initiative, was asked by the Supreme Court last week to respond to the lawsuits that seek to overturn the voter-approved amendment to the state constitution.

Opponents of measure contend the initiative process was improperly used because only the Legislature can place a measure before voters that radically revises the state constitution.

They also maintain that Proposition 8 would undo the constitution’s commitment to equality for everyone.

The court may act on the lawsuits as early Wednesday, when the justices hold their weekly conferences.

The sponsors of the measure, which has ignited a wave of protests nationwide, today urged the court to accept jurisdiction for the suits and render a decision as quickly as possible.

“The people of California are entitled to prompt resolution of whether Proposition 8 properly amended their consitution,” Andrew Pugno, an attorney for the Yes on 8 campaign, said in a statement.