The Constitutionality of California’s Marriage Amendment

Prop 8 amends California’s constitution with only a simple majority vote. This is one obvious problem. Our Constitution is the foundation of our state’s law. It doesn’t matter what the issue, it needs to be more difficult to change our Constitution than by simply winning a simple majority. At the very least changing the state’s Constitution by popular vote should require at two thirds majority. I suggest a movement to put a proposition on California’s ballot to amend our Constitution to require just such a vote. Hey, we’ll only need a simple majority to pass it!

Another obvious Constitutional problem when it comes to the marriage amendment is the fact that the way Prop 8 amends the state’s Constitution is contradictory and UNCONSTITUTIONAL in a number of ways.

1. Article 1 Section 1 of the California Consitution states, “All people are by nature free and independent and have inalienable rights.” It is clear that Prop 8 ignores this first line of the first article of the foundation of our state law. Prop 8 assumes that some people are more free than others. In fact it does not just assume this, it codifies it into law, into the very foundation of our law. Thanks to Prop 8, only straight people are equal in California. This is illegal, unethical, immoral, and shameful.

2. Article 1 Section 7b states that “A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.” In light of this clause, how can marriage be legally granted to one class of citizens and not another in this state? Now, thanks to Prop 8, Article I Section 7.5 says that “Only marriage between a man and a woman is valid or recognized in California.” This is in direct contradiction to Art. 1 Sec 7b. By defining marriage legally as only between a man and a woman a “class of citizens” (gay people) is being specifically denied a right that other classes of citizens have been granted. According to Art. 1 Sec. 7b if marriage is recognized by the state among one group of people, it must be recognized by the state among all groups of people.
California Constitution Source

The state’s Supreme Court agreed with this argument when, in the case of In re Marriage Cases they said in a 4-3 decision, “…we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” This ruling overturned a previous law passed by California voters, Prop 22, which outlawed same-sex marriage, but was not an amendment to the state’s Constitution. Can there be any question that state Supreme Court, by the same legal logic that was used in In re Marriage Cases to overturn Prop 22, must also declare Prop 8’s marriage ban amendment unconstitutional?

There is precedent for a state Supreme Court declaring constitutional amendments unconstitutional. For example, Lousiana’s gay marriage ban amendment was overturned in October of 2004 as unconstitutional. Granted this was not because of the nature of the amendment, but rather because amendments to Lousiana’s Constitution must only deal with one issue and this particular amendment dealt with more than just marriage (source).But the point is the same, Constitutional amendments voted into law by popular vote have and can be overturned by the courts. Such precedent does exist and the Lousiana marriage amendment is only one example.

Interestingly enough Governor Arnold Swarzenegger, who one year ago in October of 2007, vetoed a law passed by the State Legislature that would have legalized gay marriage (source), has said that the state Supreme Court should overturn Prop 8 (source).

Can there be any doubt that this illegal constitutional amendmentment must be overturned as such, as unconstitutional?


3 Responses to “The Constitutionality of California’s Marriage Amendment”

  1. This is a very good post!

    The argument being made is that the amendment is so far reaching, it is actually a revision of the state constitution, which has different rules-a 2/3 majority and a majority vote. If the CA high court agrees, it could be struck down. I am keeping my fingers crossed-unfortunately, in California, there is not very good precedent for this argument-from the LA Times Nov 10: “Historically, however, the court has taken a narrow view of what kind of measure “substantially alters the basic governmental framework.” For example, neither Proposition 13, which capped property tax rates, nor Proposition 140, which imposed legislative term limits, were held to be a revision of the Constitution despite their far-reaching transformation of state government. Moreover, a 1972 initiative that reinstated the death penalty after the court had declared it cruel and unusual punishment was also deemed an amendment, not a revision, even though it directly limited the judiciary’s power to declare fundamental rights.”

    Lets hope for them to set a new precedent. And there is still DOMA to be dealt with

  2. countryjim13 Says:

    One thing we have that neither Prop 13 nor 140 had are THOUSANDS of people, in this state and across the country, out in the streets in protest of this. Certainly protesting does not mean the Supreme Court will definitely overturn Prop 8, but it is an added element to the equation that these other propositions did not have. The other new element that I believe sits in our favor is that neither Prop 13 nor 140 (nor any of these others that we could use as examples) actually took away a civil right from an entire group of people. Civil rights and equality are entirely different issues from things like property taxes and term limits. Civil rights and equality are about human decency. Hopefully, that fact will tip the scales of “justice” in our favor!

  3. I also find it outrageous that the Pro-Prop 8 people argue that we should just shut up and stop whining about this because the people voted and it’s a democracy.

    One of the building blocks of our country’s democracy is that the TYRRANY of the majority cannot take away the rights of the minority and it is the legislature’s job and the courts’ job to make sure that doesn’t happen.

    I also find it ironic that when the courts rule in the favor of gays, women or any other minority that the religious right likes to use as a punching bag, that they are labeled as “liberal activist judges” who are “legislating from the bench.” Hate to tell them – but the majority opinion was written by a CONSERVATIVE justice who is a republican because he recognized that we were a protected minority group and deserved the dignity and respect of having our relationships honored with marriage. And when conservative judges actively take away our rights by voting in favor of corporations or governmental spying, etc. those judges are held up as some kind of paragon of democracy when THEY are actually writing new laws by taking away the rights given to us by the Bill of Rights or State Constitutions.

    Then again, hypocrisy is one of the biggest issues on the neo-conservative, fascist platform.

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