If Prop 8 does pass, what are some potential recourses?

[TeamJordan23]

Would we have to wait for a Federal Court to rule it unconstitutional?

Or can the CA citizens just put it on the ballot again in 2 years to amend the constitution again to take out the "traditional" definition of marriage?

[lapfog_1]

1. I believe that if a proposition can "make" it, another can "unmake it. - n/t

[nsd]

2. We can put a measure on the ballot in 2010 to reinstate gay marriage.

Eventually it will pass -- it's clear to everybody which way the wind is blowing.

That said, I think Prop. 8 is going to be defeated.

[BlueCaliDem]

3. I think it won't hold up if challenged in the California Supreme Court but I'm

not an attorney so I don't know for sure. I think it becomes an equal rights issue then and will be challenged.

It's definitely unconstitutional. I believe the premise of our Constitution is to protect equal rights for all, not take them away.

[David__77]

12. Indeed, a "constitutional amendment, can be unconstitutional.

Equal protection is a central part of the constitution. It would have to be altered. For instance, we couldn't just pass an amendment to instate slavery in California.

[trashcanistanista]

17. I heard that too, from an attorney (I'm not one). It will

be challenged in the Cal Supreme Ct. and it will go down. I heard a rumor that they are going to be out on election day trolling voters for signatures on a new petition around polling places for it to be put on again. It will be on in every election, just like the abortion prop. This came up in Election training for officers. According to the Elections' Trainer, this would not be considered electioneering as it is for the next election. That means we can't kick them away from the polling place (100 ft rule). If I see any, I plan to anyway. Fuck'em.

[msongs]

4. prop 8 = shoving religion down everyone's throats - thats the defense as

it forces everyone to follow the whims of various bigot religions and cults even tho one does not belong to those religions or cults.

it discriminates on ACCOUNT of religion.

not that the majority religion in this country gives a pootie about the rights of non believers of course.

Msongs
www.msongs.com/obama2008.htm

[Withywindle]

23. Or even progressive believers.

There are Christian denominations that are fully affirming, and do bless and consecrate gay and lesbian commitments. (And what about THEIR religious freedom, eh?) Just don't tar 'em all with the same brush.

[cbayer]

5. I heard a discussion on this today on the Pat Morris show.

The California Supreme Court has the option of ruling it unconstitutional. They can decide that this is not an amendment but a change to the original constitution and, therefore, unconstitutional.

The other option is that another proposition can be placed on the ballot next year to unamend the constitution.

Hopefully, neither of these will need to be considered and we will all celebrate it's defeat tomorrow.

:toast:

[dubeskin]

6. I posted a thread the other day on it

I can't find it, and there was some discussion on it. I think the main thing is that it shows how accepting we are as a culture, but then we take it to the SCOTUS and let them decide whether to uphold the will of the people, or equality.

[waldnorm]

7. In Colorado in 1992

Amendment 2 was never made into law. The recourse was to have a state judge pose an injunction. It succeeded, and then went to the State Supreme Court. When it was struck down, it then went to Appeals, eventually to the United States Supreme Court (four years). Granted, Amendment 2 was much more extreme (it would've legalized discrimination against LGBT people in the workplace, housing, etc. and overruled laws that recognized LGBT in Denver, Boulder, Aspen, and Telluride), but there is means of recourse--especially for the thousands of married couples who would suddenly be stripped of that status.

But never mind that, the goal is to DEFEAT it.

[tpi10d]

8. If it passes...

The recourse would be to pass another prop. It is just a matter of time.

All the recent polls I've seen showing prop 8 losing by a small margin-and I suspect it will.

[stopbush]

9. When it's defeated tomorrow - and it will be defeated! - can the

haters put it on the ballot again in 2010, or do they have to wait for a few years?

[David__77]

11. It can be put on the ballot indefinitely. Every election.

That goes for either side. But I think it becomes more politically untenable to revoke marriage equality after 2 years vs. a few months. We will see what happens tomorrow!

[FreeState]

14. It would have to originate in the legislature though - not signature gathering n/t

[David__77]

16. Not true for amendments.

If it's an amendment, not a revision, it only requires signatures.

[FreeState]

18. But if it passes it would require a revision to remove it n/t

[David__77]

19. I don't think so. Where do you get that from?

Why would changing it one way be an amendment but the other a revision? There's no language in the constitution to suggest such a thing.

[FreeState]

21. Because it would then be changing the constitution by revising it n/t

[FreeState]

13. It would have to originate in the assembly/legislature - no prop

it would then be a revision to get rid of it so it could not be placed on the ballot though the normal signature gathering process.

That being said I hope it does not pass - and if it does its possible it will be struck down for the same reason it could not be placed on the ballot through signature gathering because its a revision not an amendment.

[David__77]

10. Two courses of action.

1. Go back to state Supreme Court and argue that the amendment was not an amendment, but a "revision," and therefore invalid without a constitutional convention.

2. Pass a proposition to revoke the amendment. Keep trying at the polls until it's revoked. As said above, it would only be a matter of time and a question of natural attrition.

[ddeclue]

15. Loving vs. Virginia, 1967 388 U.S. 1 (1967) and Article IV Section

DISCLAIMER: I'M NOT AN ATTORNEY BUT I DID STAY IN A HOLIDAY INN EXPRESS LAST NIGHT:

States are required in the constitution to honor things such as marriage in other states - if a state like CA, MA, etc. decides to legalize gay marriage then other states will have to honor it regardless of their own Constitutions.

Loving v. Virginia:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=1

In this case the court ruled that marriage was "one of the fundamental civil rights of man." (I assume this derives from the Tenth Amendment which reserves unenumerated rights (such as "marriage" or "privacy") to the people.)

I would think that if it is a fundamental right of man and if states must respect the proceedings of other states that they would not be able to pass a law to invalidate a marriage over sexual orientation grounds if they could not do so over racial grounds.

http://en.wikipedia.org/wiki/Loving_v._Virginia#Future_implications

I think this would open the way for acceptance of gay marriage nationwide after it becomes prevalent enough that people are no longer frightened by what they aren't familiar with.

Facts of the Case

In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. The Lovings returned to Virginia shortly thereafter. The couple was then charged with violating the state's antimiscegenation statute, which banned inter-racial marriages. The Lovings were found guilty and sentenced to a year in jail (the trial judge agreed to suspend the sentence if the Lovings would leave Virginia and not return for 25 years).

Question

Did Virginia's antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment?

Conclusion

Yes. In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. The Virginia law, the Court found, had no legitimate purpose "independent of invidious racial discrimination." The Court rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were not subject to a "rational purpose" test under the Fourteenth Amendment.

[blue_onyx]

20. Ideally, I would like something to be done on the federal level

Federal laws trump state laws so it would solve the problem. I wish we could guarantee gay people the same rights that straight people have in all states. I know it's unlikely though.

[GregD]

22. It would be immediately appealed as unconstitutional

[goletian]

24. it is without question unconstitutional. i got someone who opposes gay marriage to understand

that today, to reluctantly accept that yes, opposing gay marriage is in fact opposing equal rights, and that such a precedent has consequences for everyone, regardless of sexuality.

heres the simple way of demonstrating that its a civil rights issue.

man has the right to vote but woman doesnt.
man has the right to attend school but woman doesnt.
man has the right to drive a car but woman doesnt.

is that equal? no, of course not.

now, change any and all of those rights with the right to marry a woman. same exact everything, only difference is the right. the inequality is blatantly obvious. denying gay marriage is an instance of sexism. plain and simple.

[Tektonik]

25. Invade Utah

:P

[AntiFascist]

26. I think the Religious Right is really screwing themselves...

the CA Supreme Court has already ruled that there is a conflict with the Equality Clause. Simply defining marriage as being between a man and a woman does not remove that conflict. The court stated that there were only 2 remedies: extend marriage rights to gay couples or remove special marriage rights for anyone, so the only alternative that would be left (if Prop 8 passes) would be to remove special rights for heterosexual married couples and leave marriage as purely an institution of the church. Proposition 8 could end up destroying marriage rights rather than restoring anything traditional, as far as the state is concerned.