About prop 8 -- isn't it likely to be overturned?

[skooooo]

If I were a Californian wanting to fight what happened last Tuesday, I would petition my legislature to declare the proposition unconstitutional. I suspect this is exactly what will happen. A mere majority of voters cannot undo bits and pieces of the state constitution.

Doesn't this seem to be a more likely and less-divisive (sic) way of achieving the goal??

[TheWraith]

1. The legislature can't declare a constitutional amendment unconstitutional.

Only the federal courts can do that.

[skooooo]

4. It's in the *STATE* constitution..

...so yes, it's is a state matter.

[TheWraith]

12. And the state legislature still can't declare it unconstitutional.

The only way that works is if it's found to be in conflict with the superceeding law, i.e. the US Constitution. Only a federal court can do that.

[mrreowwr_kittty]

2. It's pretty hard to overturn an amendment to the State Constitution

Here in AZ, we passed an amendment that prohibits the legislature from overturning citizens initiatives.

The best thing that could happen, and IMHO it's a likely possibility, is that after Obama makes a couple of good appointments the SCOTUS will nullify all these state amendments.

[skooooo]

6. Proposition 8 isn't part of the state constitution ..

...as I understand it. The legalization of gay marriage is in the state constitution, isn't that right? So when one contradicts the other, the constitution wins.

[TheWraith]

13. Prop 8 was an amendment to the California state constitution. nt

[shadowknows69]

3. It should be overturned, and if the California SC won't then take it higher

I'll probably get executed for saying this but in the long run I think it could lead to a more important precedent in a higher court. Prop 8 passing has certianly brought it into the national spotlight even more and fired up the activists so I hold hope that there will be a ray of light to this sooner rather than later.

[robcon]

5. California constitution allows amendments by voting.

Where did you get the notion that the CA constitution can be "declared unconstitutional"????

Unfortunately, prop 8 is now part of the CA constitution.

[skooooo]

7. So voters can change the state constitution..

..by a simple majority? Are you sure about that/?

That's the dopiest thing I've ever heard of, if true.

[pinto]

8. Sad but true. A simple majority on a constitutional amendment.

*shakes head*

[Ian David]

9. Maybe, but they need YOUR help

www.InvalidateProp8.org

wwww.eqca.org

[HamdenRice]

10. The state constitution cannot itself be unconstitutional

at least not under state constitutional law. So an amendment to the constitution cannot be declared unconstitutional in that way.

However, a state constitution can be unconstitutional under the federal constitution. For example, a state constitution could not provide that only white males can vote. It would violate the 15th Amendment of the U.S. Constitution.

A state supreme court can apply federal constitutional law to declare a state constitutional amendment unconstitutional. So LGBT Californians can sue in state court to declare the state constitution unconstitutional under federal law. That decision, however, could be appealed to the U.S. Supreme Court. Alternatively, Californians could go directly to federal court over the issue.

The problem is that there is no federal constitutional right yet to same sex marriage. So far, the SCOTUS has only said that gays and lesbians have a constitutional right to have their private relationships protected just like straight people. It also decided in a difficult Colorado case which might or might not apply, that a state constitutional amendment that tried to prevent anti-discrimination law from being applied to gays and lesbians violated the federal constitutional rights of gays and lesbians.

So the only way to declare this California amendment unconstitutional would end up in the US Supreme Court.

I don't think the leadership of the gay and lesbian litigation organizations want to litigate this in the SCOTUS because there is a strong probability they would lose, and that would establish for a long time and nationally the precedent that same sex couples don't have marriage rights.

The entire legal strategy of the major LGBT law firms over the last decade and a half was to go state by state. Hawaii was one of the first where they won. By going state by state and then relying on the federal constitutional principle that each state must recognize other states' marriages, they would make gay marriage normal and national regardless of what some states did or what the SCOTUS did.

Taking that to SCOTUS now would wreck decades of legal work.

[Stargleamer]

11. I think it is unconstitutional as it violates. . .

the Equal Protection clause of the U.S. Constitution. To single out a group of people for a discriminatory act that negatively impacts them violates the the Equal Protection clause of the 14th Amendment.

[HamdenRice]

14. No it may not

This is the biggest misunderstanding floating around DU. The 14th amendment does not ban discrimination against every class or group. All legislation discriminates against someone. So courts have come up with certain classes that can't be discriminated against and all other groups and classes -- from dog owners to tax drivers, bakers to high income earners, ex-offenders and police officers, whatever -- can be discriminated against. The courts recognize that if the government could not routinely discriminate among citizens, it would never get anything done.

So far, the classes that cannot be discriminated against are racial, ethnic and religious minorities, women, voting minorities, children born out of wedlock, and certain classes impacted by political process or civil liberties legislation.

That's it.

(Actually there are a few odds and end groups the court has recognized including, once, students who live together in suburban houses!)

The entire legal struggle is whether LGBT are such a class. A few states have said yes. The SCOTUS has ambiguously said maybe in certain circumstances, but not a definite yes.