Can the court throw out Prop 8?

[Renew Deal]

My understanding is that Prop 8 changed the California constitution. If that is the case, then I don't think the court can do anything about Prop 8 because it is now "constitutional."

An analogy would be the US Supreme Court declaring the (insert amendment number here) amendement unconstitutional. That's just not possible because it's in the constitution.

Am I missing something here? It seems that the only way to eliminate Prop 8 is another change to the California Constition.

[northernsoul]

1. The argument is that Prop 8 is procedurally invalid

and therefore is not effective law. In other words, it didn't actually change the constitution because in California, constitutional amendments that affect fundamental rights have to be approved by a super-majority (Prop. 8 was only approved by a simple majority).

[TommyO]

3. If I'm not mistaken it also needs to go through the Legislature first

and it didn't. Not only didn't it go through the Legislature, it would have failed in a Legislature that twice passed marriage equality bills only to have them turned down by Governor Schwarzengroper.

Can any Californians confirm this for me?

[Renew Deal]

4. That seems like a strange loophole.

Who gets to decide what is a "fundamental right?"

[smiley_glad_hands]

2. Constitution cannot be unconstitional unto itself, must have equal protection.

[Sinistrous]

5. One way they can is to decide that Prop 8 was invalid

because it improperly modified one of the basic principles of the CA constitution, e.g. equal protection. This, I believe, is one of the arguments being raised against the amendment.

They can also rule that the necessary procedure (legislative action) was not followed in making such a change to the constitution and thus the amendment is invalid.

[t0dd]

6. Sure

You are missing a lot of things. It doesn't take long to do a little research on this. There are several issues to be decided, but this is the central one:

- Is proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the CA constitution?

And there is also the case Jerry Brown is making

Brown said Tuesday the Supreme Court should strike down the measure on the grounds that same-sex couples had an "inalienable" right to marry that should not be allowed to be taken away by a simple majority vote.

Anyway, you can do some reading here, but yes, it can be struck down:

http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm

[cabbage08]

7. Thanks for the link

and welcome to DU

[Renew Deal]

9. This is the answer I anticipated would eventually come

A snotty bullshit remark.

[t0dd]

10. Aww, sensitive much?

And how is it bullshit? These arguments hold weight. Obviously they do. Otherwise, the Supreme Court wouldn't bother hearing the cases at all. And I was merely pointing out that if you are going to claim the SC can't do something, you should obviously do a little research first to justify your observation. It doesn't take much effort :-)

[Renew Deal]

16. Thankfully someone below answered the question fully.

It's going to be interesting to see how this goes. It seems like the amendment vs. revision process is probably hopeless, but the inalienable rights argument has a chance.

I wanted to know on what grounds Prop 8 can be thrown out. Now I have it. I wouldn't be willing to bet which argument succeeds. This is incredibly complicated. It seems like the pro-prop 8 forces are on slightly stronger ground, but only slightly.

[Terran]

12. geez...

It may have been snotty, but it certainly wasn't bullshit. Grow up, he/she gave you the answers you wanted.

[damonm]

23. Huh?

Neither snotty nor bullshit, from what I can see.

[tangent90]

20. Good summary, thanks. Tomorrow will be interesting.

...

[SidneyCarton]

8. The LA Times had a good discussion on this issue last Sunday

http://www.latimes.com/news/opinion/commentary/la-oe-goldberg1-2009mar01,0,2867679.story

[Renew Deal]

14. This article has all the answers I was looking for.

It really explains all the aspects. Thanks for posting. :yourock:

[SidneyCarton]

15. No problem, I found it very informative.

[Terran]

11. States can't enact laws that conflict with the US Constitution

Ultimately, even if Prop 8 doesn't get tossed on state procedural grounds, it's still in violation of the 14th Amendment to the US Const and could be removed that way. Of course, bringing that challenge federally also means bringing the ultimate gay rights case: making same-sex marriage legal on a federal level. Personally, I think past rulings by the current court pretty much require them to agree that Prop 8 is unconstitutional.

[Renew Deal]

17. I don't think we would want this to go to the US Supreme Court

Because I have little confidence the pro-marriage supporters would win.

[Terran]

21. It will have to eventually.

Even if same-sex marriage were somehow enacted federally, it would be challenged in federal courts immediately, and would end up in the SCOTUS pretty quick.

[tangent90]

22. Well, that's hard to predict. I would never have thought they would decide Lawrence v. Texas

the way they did a couple years ago.

[CitizenPatriot]

13. I don't understand the complexity of the "law"

involved, but all I can say is they better throw that POS out.

What next? We vote on taking rights away from another class of citizens? Where does this insanity end? It certainly seems like a dangerous precedent to set, not to mention such a regressive hateful thing.

I contributed nothing; sorry. I guess I just wanted to vent. I really do respect the process of law and reason -- I just get tired of the hate.

[Renew Deal]

18. Actually your argument seems to be half of the case.

Part of the case is that the CA constitution can never take away "inalienable rights."

[CitizenPatriot]

24. ah! even stupid people are right some of the time, I guess!

Ha. It seems illogical to me and pisses me off so much -- all of the focus on taking rights away from a group of people who aren't hurting anyone...meanwhile, Rome burns.

Why can't the religious nut jobs ever focus on actually improving things?

[upi402]

19. if Repubs can throw out the Constitution and Bill of Rights...

sure, give it a go!