Calif Atty General Jerry Brown challenges constitutionality of Prop. 8

[AtomicKitten]

I've searched the archives at DU, and it appears nobody posted this from last week. I've posted it my responses four times with a link and no response. My conclusion is that this is either an oversight (on my or DU's part) or that a glimmer of good news cannot be endured on DU. Jerry Brown at one point did not plan to challenge the constitutionality of Prop 8. And now he is seeking a stay to block the enforcement of it. Hooray. Right?

Jerry Brown seeks legality of Prop. 8
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/17/BAGP1467MF.DTL&type=politics&tsp=1

Bob Egelko, Chronicle Staff Writer

Tuesday, November 18, 2008

(11-17) 16:42 PST SAN FRANCISCO -- The likelihood of a final California Supreme Court showdown over same-sex marriage increased dramatically Monday when Attorney General Jerry Brown and the pro-Proposition 8 campaign urged the justices to decide whether the voter-approved ballot measure is constitutional.

Both Brown, the state government's top lawyer, and the Protect Marriage campaign organization plan to defend Prop. 8, which would write a ban on same-sex marriage into the state Constitution. In separate filings Monday, the liberal attorney general and the conservative sponsors of the initiative gave similar reasons for asking the court to review lawsuits filed by the measure's opponents.

"There is significant public interest in prompt resolution of the legality of Proposition 8. This court can provide certainty and finality in this matter," Deputy Attorney General Mark Benington said in court papers.

***

The court could decide at its weekly conference Wednesday whether to accept the suits for review and whether to issue a stay that would block enforcement of Prop. 8 until a ruling is made. A stay would restore authority for gay and lesbian couples to marry, although those marriages - like an estimated 18,000 same-sex weddings performed before the Nov. 4 election - would have an uncertain status until the court cleared up Prop. 8's legality and scope.

***

All the lawsuits argue that Prop. 8, a state constitutional amendment, violates other provisions of California's Constitution by taking rights away from a historically persecuted minority group and stripping judges of their power to protect that group.

Prop. 8, approved by a 52 percent majority, would overturn the court's May 15 ruling that gave gays and lesbians a constitutional right to marry in California.

The central claim in most of the suits is that Prop. 8 would make such a fundamental change to individual rights and judicial responsibilities that it would amount to a revision of the state Constitution and not merely an amendment. While a constitutional amendment can qualify for the ballot with 694,354 signatures of registered voters, a revision requires a two-thirds legislative vote to reach the ballot.

[Deja Q]

1. It is unconstitutional.

For a few reasons, the most obvious one being "separation of church and state".

[AtomicKitten]

4. the Calif Constitution can only be changed by two-thirds vote of the legislature

The loons overreached, in this case seeking to limit the rights of others by writing it into the State Constitution. Once that part of it is knocked down, the Calif Supreme Court will again reaffirm the right of the LGBT community to marry.

Amen and amen.

[slackmaster]

19. That may not be correct

CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION

SEC. 1. The Legislature by rollcall vote entered in the journal,
two-thirds of the membership of each house concurring, may propose an
amendment or revision of the Constitution and in the same manner may
amend or withdraw its proposal. Each amendment shall be so prepared
and submitted that it can be voted on separately.

SEC. 2. The Legislature by rollcall vote entered in the journal,
two-thirds of the membership of each house concurring, may submit at
a general election the question whether to call a convention to
revise the Constitution. If the majority vote yes on that question,
within 6 months the Legislature shall provide for the convention.
Delegates to a constitutional convention shall be voters elected from
districts as nearly equal in population as may be practicable.

SEC. 3. The electors may amend the Constitution by initiative.

SEC. 4. A proposed amendment or revision shall be submitted to the
electors and if approved by a majority of votes thereon takes effect
the day after the election unless the measure provides otherwise. If
provisions of 2 or more measures approved at the same election
conflict, those of the measure receiving the highest affirmative vote
shall prevail.

The question is not simple because the document does not define what constitutes an amendment vs. a revision. Section 3 appears to allow initiatives only to amend but not to revise. If the changes specified in Proposition 8 qualify as a revision, the whole thing may be unconstitutional. If not (i.e. the changes merely amend but do not revise), there is no way it can be thrown out.

[AtomicKitten]

22. that's the argument and it is a rather gray area

Brown had decided initially that it was his duty to enforce Prop 8, but I actually think Ken Starr being hired to press for nullifying existing marriages was the fire lit under him to change his mind and argue its constitutionality. Fingers crossed.

[patrice]

2. Hooray!!! Right!! I am Glad to hear this. nt

[ayeshahaqqiqa]

3. Here's hoping the judges know the law

and know that this proposition is unconstitutional.

[xchrom]

5. recommend

[pleah]

6. K&R I can't believe

you posted this 4 times and I never saw it! So, k&r to help keep it afloat this time.


Great news! I wondered if someone was going to do this and was amazed that I hadn't heard about this.


Thank you.

[goclark]

7. Now we are talking!!!!

Please let it be.

I'm sure I will get flamed for asking this but I sincerely want to know....


There has been so much screaming at DU about Warren and Prop. 8.

I happen to be straight and my friends are asking where they can direct their supportive energy to protest that will not demean Obama and others.

They truly want to be supportive but they can't take all the blasting of Obama.

I suppose I am thinking of something that people that attend the Inaugural for example and other activities, like a ribbon, that is for the Overturn of Prop 8 and the rights of others.

If there is no such plan, you do not have to respond.

My thinking is that if we want a bigger tent we can not exclude those that may not be as passionate as others.

I want to be supportive but I am turned off when those that I have supported with $$'s and time for many years are blasting everyone left and right that may not feel the pain the way they feel it.

I'll say it again. I am African American and we sure know what ropes and slavery feels like. Day after day we still have constant reminders that we are not appreciated.

That said,what can be done to be inclusive of others that may not be on the same page with the Warren issue for example?

Thanks :patriot:

[AtomicKitten]

9. This is and will continue to be a constant legal battle.

Over the past decade in particular, the wingnuts have deployed a cadre of attorneys across the country, state by state, constructing ballot measures and putting into place absurd regulations (i.e., insane restrictions on abortion clinics, etc.) to limit the rights of others. This bullying behavior must be resisted, going toe to toe with them in a court of law to insist on our freedom and rights as citizens. And we have to be firm in our resolve to continue to stand up against them because like the Terminator, they will not stop.

:patriot:

[AntiFascist]

20. I, as a caucasian gay person, I very much appreciate your support...

it is unfortunate that Obama and his ardent supporters are being unfairly attacked, we should really be focusing our anger at Warren and his agenda, which goes way beyond GLBT issues. Please try to understand the anger and why people feel that they are being thrown under the bus in order to bring America together under religious terms. My feeling is that Obama needs to take less of the messianic approach and more of the down-to-earth, workers-rights, civil rights, etc. approach.

[gollygee]

8. I did see it posted at least once

I think maybe twice?

Anyway, yay! And I hope that works!

[AtomicKitten]

10. I posted it four times in my responses with no reaction by anyone.

And this OP clearly has earned a shrug of shoulders as well.

As a Californian, I am thrilled that Brown decided to fight this and can only speculate on the nonplussed reaction to this at DU.

:shrug:

[AtomicKitten]

11. kicked for some good news

well, I think it's good news

:shrug:

[EFerrari]

12. Go, Jerry.

:kick:

[ruggerson]

13. thanks for posting it

recommended

[ProfessorGAC]

14. Good For Jerry

I think any plebiscite that involves diminishing the rights of others is de facto unconstitutional. That's not a legal opinion, merely an ethcial one.

But, i think he's right and good on him.
GAC

[Kaleko]

15. Excellent news. Go, Jerry. You'll win this case. n/t

[BuelahWitch]

16. Very good news!

:thumbsup:

[bklyncowgirl]

17. I think Jerry Brown is no longer on Rick Warren's Christmas list

Good for the man formerly known as Governor Moonbeam. I always liked that guy.

[AntiFascist]

18. K&R, this seems like a big victory....

Brown is supposed to defend Prop 8 on behalf of the state, but instead he is doing the opposite because he has concluded that it is unconstitutional. Now, only the third party Yes on 8 supporters can defend Prop 8 before the CA Supreme Court, and in the past they have been pretty inept.

[AtomicKitten]

21. My money's on Jerry Brown. Ken Starr can suck it.

They intend to punctuate the egregious Prop 8 with asking the courts to nullify some 18,000 marriages in California. I'm thinking that persuaded Brown to say hell no to that mess after all. Glad he changed his mind.

And the legal dance continues. For as long as it takes.