Thursday, January 15, 2009

A Proposition 8 legal update…

FYI from the National Center for Lesbian Rights

Women’s Groups Warn Against Consequences of Putting Equality Up to a Public Vote

1.14.09 Several leading local, state and national women’s rights organizations have submitted an amicus curiae—or friend of the court—brief to the California Supreme Court, asking the Court to invalidate Proposition 8 because of its disastrous implications for women and other groups that face discrimination. The organizations joining the brief—filed in support of the petitioners in Strauss et al. v. Horton et al. (#S168047)—will include Equal Rights Advocates, the California Women’s Law Center, Women Lawyers of Santa Cruz County, Lawyers Club of San Diego, Legal Momentum, and the National Association of Women Lawyers.

In the papers submitted to the Supreme Court, the prominent women’s groups argue that Proposition 8 drastically alters the equal protection guarantee in California’s Constitution and that such drastic changes cannot legally be made through a simple majority vote. They argue that such changes require, at a minimum, a two-thirds vote of the legislature before being submitted to the voters. They further state that the position of the proponents of Proposition 8 is both offensive to the rich history of equality in California and contrary to California law.

“There was a time when women couldn’t own property, couldn’t vote, and were excluded from equal opportunities in education. If these had been up for a public vote we still might not have them,” said Irma D. Herrera, Executive Director of Equal Rights Advocates. “Our constitution proudly protects women and minorities from having our basic civil rights stripped away so easily as they could be with Proposition 8. For the Constitution to have any meaning, core principles such as equal protection can’t be up for grabs in every election.”

For more information and to read the entire press release visit the National Center for Lesbian Rights website.

5 comments:

Anonymous said...

It is not unusual for the people to place limits on the actions of certain minority groups. We limit the actions of rapists, pedophiles, mass murderers, and those who exibit public lewed conduct. We do this as a result of moral judgements we make. On the other hand, we do not limit actions based solely on race, religion or gender. Where does homosexuality fit?

Anonymous said...

Wow, that doesn't even deserve a response...

Thanks for the update, AngryBB!

Marriage Equality for Everyone.

Protect Marriage, Ban Divorce!

Let's kick some Mormon ass...

xobekim said...

Regarding the first Anonymous' comments, homosexuality does come in under the Civil Rights protections the courts say apply. This is because homosexuals constitute a discrete and insular political minority. Limiting the rights of groups based on this classification will draw heightened scrutiny from the courts.
The standard was first ennunciated in United States v. Caroline Products, a case about milk products. In footnote four, yes you have to read the footnotes, Justice Stone said:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the 14th. [Case citations deleted]
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the 14th Amendments than are most other types of legislation...
Nor need we enquire whether similar considerations enter into the review of statues directed at particular religious...or nationaL...or racial minorities; [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry...

That you would sweep all gay and lesbian persons with the taint of being immoral and directly compare them with criminals suggests that you are neither moral nor psychologically healthy.

aSeaNamedSolaris said...

Ooo, thanks for such a great and informative post. I still do not understand how an issue so important as a civil rights issue, i.e., marriage could be relegated to the public for decision. The public has no right to make such a momentous decision for the simple reason that they use their prejudices and predilections, not critical legal theory, jurisprudence or time-honored philosophical pronouncements.

And xobekim, thank you for that informative post, too.

Shady_Grady said...

The problem is though that Prop 8 is a constitutional amendment, not a law. So it's not clear to me that any judge could invalidate an amendment. By what possible authority could they do that? The Constitution (state in this case) is the actual document from which the judges draw their authority and under which all laws are based.

Judges get to interpret and review laws but they don't get to throw out amendments. If they could the current US Supreme Court would no doubt get rid of the entire Bill of Rights.

Changes to the constitution must come from the people, not the judges. Right or wrong, the people had the right to change the Constitution, which they did. The only relevant question at that point would be does the state constitution clash with the US constitution.

It is obviously offensive and incorrect to compare homosexuals to pedophiles and rapists. But the Prop 8 Amendment should be fought within the political arena. The California Supreme Court would be opening up a very ugly can of worms if it attempted to throw out part of the Constitution, as opposed to a particular law.