Legal analysis on Prop. 8 from a lawyer friend (fairly encouraging) [View All]

[villager]

or rather, a friend of a friend, in the Bay Area, and forwarded to me by my father (who got it from *his* minister, btw!):



The California Supreme Court did in fact rule, for the first time, that Gays are not just another minority group, but a “suspect class” of minority. This status has only previously been extended to race, sex, and religious minorities. This means that discrimination against a “suspect class” triggers “Strict Scrutiny” on the part of the courts, and this analysis requires the government to come up with a “compelling state reason” for the discrimination. Historically, once a minority group has attained status as a “suspect class” discrimination against it has always been prohibited because the government has never been able to come up with a “compelling state reason” for the discrimination.

This analysis will survive Proposition 8. Gays are still a suspect class and the government will have to come up with a compelling state reasons to justify denying them fundamental rights including marriage.

This means several things; The court may rule that the California Constitution cannot be amended to take away fundamental rights from a suspect class by a simple majority vote. They may well decode that a constitutional convention is required to take away fundamental rights. This requires a two-thirds vote of the state legislature.

A writ has already been filed by a collection of civil right’s lawyers (moi included) seeking to obtain such a ruling. If so, the election could be tossed out and the homophobes left with having to get two-thirds of the legislature to agree to a constitutional convention.

Lots of luck.

This would mirror the Federal Constitution which cannot be amended without two-thirds vote of both houses of Congress plus ratification by three -quarters of all the state legislatures.

As you recall, the last gasp of the Federal Religious Right attempted such an amendment in Congress on this very issue and they failed to get even a simply majority of either the House or the Senate let alone a two-thirds majority.

So the argument goes: California’s Constitution must reflect the Federal one. It can only be amended to take away fundamental rights by a Constitutional Convention which requires two-thirds of the state legislature.

This battle is far from over.