On my initial quick read, it seems to me that the California Supreme Court's cases (1) recognizing a right to same-sex marriage under the California Constitution, and (2) today, recognizing that Proposition 8 validly amended the Constitution and thus abrogated the right are excellent examples for any discussion -- in class or otherwise -- about popular sovereignty.
Three Justices reached a result different from the one that they had initially reached, based on their judgment that the people's views prevail over the Justices'. And they rebutted (in my view persuasively, but in any event clearly and informatively) the arguments to the contrary, both arguments focused on the revision vs. amendment question and arguments focused on the people's supposed legal inability to alter supposedly "fundamental" or "inalienable" rights. On the other side, there was able briefing to the contrary, plus Justice Moreno's partial dissent (which I've only skimmed at this point, though I'll read it later today). Put together, this seems to me a great case study of the recurring debates about popular sovereignty, constitutionalism, the role of courts, and more broadly the mixed majoritarian and antimajoritarian nature of American constitutions.
Related Posts (on one page):
- What If the Voters Overturn Other Constitutional Rights Decisions?
- Justice Moreno's Partial Dissent:
- What Next for Same-Sex Marriage in California?
- Popular Sovereignty:
- The California Supreme Court on Attorney General Jerry Brown's Arguments Against Prop. 8:
- The California Supreme Court on Amendment vs. Revision:
- From the California Supreme Court's Prop. 8 Decision:
- California Prop. 8 Upheld, But Held Not To Affect Existing Same-Sex Marriages:
1. An amendment eliminating the right to amendments via petition
2. An anti-miscegenation amendment
My understanding from the discussion here and elsewhere is that these would be OK (if entirely implausible); is that right?
The Court read Prop. 8 as narrowly as possible. Interpreting In re Marriages as involving many holidngs, including: (1) the right to establish a relationship with all the rights of marriage, regardless of whether the term "marriage" is used; and (2) the right to have thet term "marriage" used. The Court held that Prop 8 only affected the second of those two holdings.
Thus, under today's ruling, same-sex couples still have the right to establish a relationship with all the rights of marriage just not to call it "marriage." But with what mechanism? The Court doesn't really say, though Werdegar's concurrence calls upon the legislature to make sure this option exists. The result, to me, would seem to be an "upgrading" of Domestic Partnership law to read: "Domestic Partnerships shall enjoy all the rights of marriage," something that -- despite the lies of the Yes on 8 campaign -- is not the case.
Right now it seems everyone is focusing on the "result" without really seeing what the Court actually did here.
1. Probably so (though I doubt it would pass)
2. No, because it violates the United States Constitution (Loving v. Virginia, 388 U.S. 1 (1967)) and the supremacy clause would prevail.
Just asking.
Does amending a State's Constitution via a poll/election follow the definition of "a Republican form of government?"
Does amending a State's Constitution via a poll/election follow the definition of "a Republican form of government?"
Eliminating the right to amendments via petition could plausibly be seen as a revision under this decision, "altering the basic governmental framework set forth in our Constitution."
I would say that "1" would possibly not be okay because it would fundamentally alter our system of government and this is the role of revisions.
However, I would say that "2" would be okay. What would happen, though, is the California Supreme Court would have to strike it down as violating the United States Constitution. The same conflict doesn't (yet) exist with same-sex marriages.
This raises an interesting point though. If the California Supreme Court believed that it did violate the Equal Protection clause of the 14th Amendment, then it would have been bound to strike it down on those grounds. Of course, we all know that the pro-gay-marriage deliberately didn't raise that issue for fear of a conservative SCOTUS reversal. But it strikes me that not raising it explicitly wouldn't be good enough ground to avoid it. If, say, in Zach's example the parties didn't raise it, would the Supreme Court be free to ignore the US Constitution? Certainly not.
@Dave - thanks; this means that it'd be fine aside from Loving, though, right? So no right is conferred by the CA constitution that cannot be taken away or limited by amendment?
The reason I answered the way that I did was that California voters GAINED the right to initiative and referendum through an amendment to the California Constitution pushed by Governor Hiram Johnson.
If the voters achieved that right through a constitutional amendment, it would seem odd to argue that repeal of this state constitutional amendment would constitute a revision.
An anti-miscegenation amendment may have to be struck down on federal constitutional grounds, though it could be considered too vague to have any effect, as races are fuzzy sets, and defining the borders of fuzzy sets is *difficult*. Under an anti-miscegenation law, who would Tiger Woods or Barack Obama be restricted from marrying?
Well, if we can assume that you mean, "...aside from Loving, AND all other related federal case law/statutes, etc. . . .", then I think the answer is 'yes.'
If we go in agreeing that federal law has no legal impact on California law (for the purpose of your argument, I think), then California can do whatever it wants. That is the point of amending (or revising) the Constitution.
That's also true for the US Constitution, of course. There is no right so sacred that it could not be taken away by amending the Constitution. We could eliminate, say, the rights of Whites (or, Blacks, Jews, Catholics, tall people, etc.) to own property. Take away completely the right to own a gun. Trying Prohibition (again). Eliminating the right to worship. And so on. I am obviously ignoring the actual odds that any such change would survive the amendment process, but that was not your point. Every single right (via Constitution, legislative process, handed-down-by-God, judge-made, et al) can be taken away by amending a constitution. True for the US in general. And true for the specific state of California (subject to complying with federal law in non-hypothetical situations).
Okay, maybe I can imagine California enacting some law which (per your hypo) was not touched by federal law, but still violated some international treaty. But I'm not sure if a California law that did this would be invalidated as a matter of law. (Well outside my area of knowledge.)
Such is the nature of California constitutional law. Be glad it's a bit harder at the federal level.
OT? Moi?
I don't know about OT, but perhaps distracting.
Now I'm going to go back and finish that poem I was writing...
Anthony A, Obama's race would've been easy to classify in 1890 (link); his kids, on the other hand... I never understood why there were quadroon and octroon categories but no three-quarteroon category.
Not exactly. The right of each state to have equal representation in the Senate with every other state explicitly requires unanimity amongst the states before the U.S. Constitution could be amended in such a matter.
How do you figure?
Race has a very long history in the US, something totally vacant from the issue of sexuality. Obviously, this would be mooted by prior Supreme Court precedent.
What people are still not iterating on the 14th is that this does not affect a Class of People. "The gays and the straights and the whites and the spades" can all marry a member of the opposite gender. The fact that this is unsatisfactory to some is not relevant. A law that allows men to marry a man or woman but only lets women marry men... would and should be tossed out under Equal Protection.
Article V:
Uh... Proposed Amendment #1: repeal that line through the usual process requiring 2/3s and 3/4s.
Proposed Amendment #2: pick a state, any state, and deprive it of its equal suffrage. I nominate Texas.
I further ask why people ignore Baker v. Nelson. BAKER is the appropriate Federal Precedent, not Loving. Several Courts have recognized it's binding effect as a matter of Federal Constitutional Law, including some Pro-SSM judges.
One can try to pretend that there are no distinctions between race and the fundamental difference of sex, however reality dictates a different view.
I don't think it conductive to this debate to post snarky "Exam Questions" that implicitly refer to anyone with an opposing view as a racist bigot. An example of such an "exam question" would be:
"Would it constitute a revision or amendment to the California Constitution to restrict the term "marriage" to opposite sex couples of the same race while, while not otherwise affecting the fundamental constitutional rights of mixed-race couples."
"Please keep in mind when answering this question not to refer to the Federal Constitution or whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution."
Reasonable minds can disagree on this issue without resorting to such tactics. I am firmly convinced that this particular issue has caused more than a few to take leave of their senses.
I suppose you can be bothered that it seems like a stupid exam question (and given that the answer is apparently straightforward, it would be) if you like. By including the snarky exam question about an anti-initiative initiative I'm implicitly referring to anyone with an opposing view on marriage as what, exactly?
Any state that feared it was at risk of being deprived could appeal to SCOTUS that the amendment was in violation of the amendment process, since it was going to deprive it of equal representation. And I think that the state would probably succeed, although we'll never find out.
Of course, a lot of the Constitution depends upon people in government having basic respect for it. If the President and the military and Congress and its aides and SCOTUS and its clerks and the appellate circuit decide to just ignore it, we don't have any recourse besides armed rebellion. There's no money-back guarantee.
Doesn't work...
A strict reading of this would say that no amendments are valid if one amendment deprives a state of equal sufferage. I think it's safe to say that the intent is that only the offending amendment(s) are affected though.
Hard to see that as any less legitimate that the 1787 Constitution, which was pretty much adopted in the same fashion.
After that, it's fair game!
Texas, along the other southern administrative federal subdivisions, were denied equal suffrage once already because there is no Constitutional authority explicitly delegated to the SCOTUS to consider the question. Otherwise the so called 14th amendment would be null and void.
We continue to become more and more like the Estados Unidos de Mexico.
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