Good As You

This may be a dumb idea. But this morning I wrote to Michael Moore. I suggested his next film should be about the last legal form of discrimination left in this country, namely us gay folk. I don't know if he'd do it, but I'd love to see our struggle given the same treatment Mr. Moore gave to the health industry, 9/11, and the Columbine disaster.

I cannot begin to tell ALL of you how disappointed I feel that Prop 8 has (possibly) passed.
The passage of this DISCRIMINATORY Amendment not only takes marriage rights away from me,
gay or lesbian citizens across the country, and the blogger of this website, but most EGREGIOUSLY has made it clear the Separate but Equal is STILL ACCEPTABLE for a segment of the population. Though a tremendous blow has been dealt to LGBT EQUAL RIGHTS across the country we will PREVAIL.
Just like how we dealt with and are prevailing over AIDS we will win this fight in the end. With time an electorate more accepting of LGBT EQUAL rights will come to power. With time the new President will ensure LBGT persons enjoy SOME EQAUL Rights by repealing Don’t Ask, Don’t TELL, DOMA, and by supporting CIVL UNIONS type benefits as he has PROMISED.

Just a foot note...

As a California resident that is gay I feel that my VERY soul has been taken out of me, been trampled upon, and defaced, then shoved back in.

But, I will endure that a hundred times over if it means that ALL citizens in the U.S. ARE ABLE to enjoy the Domestic Partnership RIGHTS available to me and other California residents. Hopefully, Barack Obama will GRANT gay and lesbian couples Domestic partnership type rights.

LONG LIVE BARACK OBAMA!

That Barack Obama won last night is truly historic. It is proof that the world we live in is changing. And, it is very encouraging.

Even so, we, as a community, have suffered greatly in past elections, and now (again) in the California, Nevada and Florida elections. But the majority tyranny that has once again stepped up to usurp our fundamental freedom will not go unchallenged. We have truth, we have justice and we have the American way of life on our sides.

And, let's not forget that the California courts found this discriminatory legislation to be unconstitutional once before. They found it to be unconstitutional, not because it wasn't directly addressed in the constitution, but because it violates the basic tenet of equal protection. I have no doubt that they will do so once again.

We made a very great effort to solidify the public opinion that seemed to be in our favor. But once again our minority has been met with the cruel hand of intolerance and injustice. All of which continues to reinforce the argument that the courts must act to protect us and our rights.

Dick, I'm sorry, but it just doesn't work that way. State equal protection arguments cannot be used against that state's own constitution, of which Prop8 is now a part. A constitution cannot be used against itself, and explicit pronouncements override implicit ones derived through a greater dose of interpretation. The CA court could invalidate the amendment solely on FEDERAL equal protection grounds, which would immediately hurl the matter into the federal courts, where the prognosis is a great deal less rosey and much more dangerous. A more narrow _Romer vs. Evans_ argument would be much safer there. More likely, since the legal team is filing in CA, the argument has something to do with the proper way to "revise" the CA constitution, which only the legislature can do. I'll try to check what they're actually doing and get back on this.

Steve, it is a matter of fact that exactly what I described has happened in California before. Proposition 14 back in the 1960's was overwhelmingly approved as an AMENDMENT to the California Constitution, and the California Supreme Court struck it down as a violation of equal protection.

That ruling was appealed to the US Supreme Court, and the US Supreme Court upheld the California Court's ruling.

Dick, I assure you this can't happen. Do you know the name of the case? Since it ended up in the US SP, I can only assume the CA court ended up making a federal argument that ended up in the federal courts. It happens all the time.

U.S. Supreme Court
REITMAN v. MULKEY, 387 U.S. 369 (1967)
387 U.S. 369

REITMAN ET AL. v. MULKEY ET AL.
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.
No. 483.
Argued March 20-21, 1967.
Decided May 29, 1967.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=387&page=369

Thanks, Dick, that's precisely what I was talking about ;-). The first sentence of the decision clearly states, "The question here is whether Art. I, 26, of the California Constitution denies 'to any person . . . the equal protection of the laws' within the meaning of the Fourteenth Amendment of the Constitution of the United States." Therefore, the FEDERAL equal protection clause (i.e., the 14th Amendment) was at issue, not the CA one. That was the FEDERAL matter that allowed the CA court to invalidate the CA amendment and got the case into the federal court system. Got it?

Now that that's over with, Dick, I saw that lambdalegal.org now has a bit on the case on Prop8, and they're doing exactly what I assumed they'd do. They're claiming Prop8 is a "revision" of the CA constitution, not just an amendment, and therefore requires legislative action before voters can vote on it. The report doesn't mention it, but at issue is art. 18, sec. 2 of the CA constitution and the distinction between an "amendment" and a "revision." I think that argument unlikely to work, since it involves a more figurative than literal "revision." But here's hoping they really FEEL like invalidating the proposition.

It is important to note that the CA court did invalidate Prop 14, and also to note that all equal protection stems from the 14th amendment - whether it is racially based or not. Additionally, the Fair Housing acts which directly stem from Reitman v Mulkey have been extended to include, among other protections, the protection based on a persons sexual orientation.

The argument that the CA court can't invalidate an amendment simply isn't true, but, it is likely that it would be appealed. The outcome of the appeal, though, is a subject for debate.

And, Steve, I can understand why Lamda Legal (and others) would want to make a limited California state appeal. The laws enacted in CA as well as court rulings make an appeal based solely on the CA constitution probably has a better chance of success. Again, the big unknown here is what the US Supreme Court would do. The likely outcome from a CA decision is good where the US decision is more of a craps-shoot.

Dick, I know it's difficult, but try to refamiliarize yourself with what I originally said. I never claimed the CA court can't invalidate an amendment. That's a straw man. I originally stated, "The CA court could invalidate the amendment solely on FEDERAL equal protection grounds, which would immediately hurl the matter into the federal courts [. . .]," and, "More likely, since the legal team is filing in CA, the argument has something to do with the proper way to 'revise' the CA constitution, which only the legislature can do." The case you mentioned did precisely the former, while the legal team is now attempting the latter. What the CA court cannot do is invalidate the amendment on STATE equal protection grounds. Any limitation to STATE matters, like the legal team is attempting on rather procedural grounds, is important; doing so helps insolate the case from nasty federal review.

Why are you having so much trouble conceding on this?

Steve, I don't recall that I ever claimed that the CA court made any rulings based on state equal protection clauses. The facts are (as I stated) that:

The CA court did rule the amendment to be unconstitutional
The US court upheld the CA court's ruling
And the basis of the case was equal protection

I'll gladly cede anything to you that you wish, I'm just trying to figure out which statement of mine it is that you have refuted.

Dick, you originally stated the following:

"And, let's not forget that the California courts found this discriminatory legislation to be unconstitutional once before. They found it to be unconstitutional, not because it wasn't directly addressed in the constitution, but because it violates the basic tenet of equal protection. I have no doubt that they will do so once again."

The CA SC invalidated the statute on STATE grounds, which is why the matter ended with the CA court. I can only read your "do so once again" to imply the same (state) grounds in round two. That's impossible, as I stated in the second sentence of my original post:

"State equal protection arguments cannot be used against that state's own constitution, of which Prop8 is now a part."

That was my refutation, way back in my first post. Got it?

On the up side, I've since read the legal team's petition against Prop8. It seems there is at least some history of the CA courts interpreting "revise" in art. 18, sec. 2 of the CA constitution figuratively. That gives us a very serious fighting chance of prevailing in the case; the majority of 4 now, at the very least, has something serious and legal they can latch on to, if they're so inclined.

Steve, if you have read the petition, then you are aware that the basis for their argument is that Proposition 8 eviscerates (Dennis Herrera's verbiage) equal protection, and that the act of eviscerating equal protection is a revision to the constitution.

And it is a brilliant argument, and it does have at least some possibility of ensuring that the issue remains in California's legal system.

But the only reason that the argument can be made is equal protection. And, California's Supreme Court did overturn Proposition 14 strictly on the basis of equal protection.

Dick, I’ll assume you now get your original error/slip that I corrected, since you’ve dropped the matter.

As for the petition in the new anti-Prop8 case, you’re dead wrong. The equal protection language in the petition has absolutely nothing to do with an independent cause of action. Equal protection is being used merely to argue that Prop8 constitutes a REVISION of rather than an AMENDMENT to the CA constitution, according to art. 18, sec. 2 of that constitution, thereby assuring the CA SC will be the final arbiter of the matter. (This argument cannot end up in the US SC.) That is, if Prop8 radically redefines the fundamental equal protection principles of the CA constitution, including their application to minorities generally, then it must be a “revision” rather than an “amendment.” Equal protection here is merely a means to that end. Another is the balance of powers argument, for example. That is, if Prop8 radically redefines the CA courts’ ability to decide fundamental constitutional principles, including their application to minorities generally, thereby also redefining the fundamental role of the CA courts, so as to alter the balance of powers between the branches of CA government, then it must be a “revision” rather than an “amendment.” See how that works? Art. 18, sec. 2 of the CA constitution is the strictly procedural basis for the case.

State equal protection provisions CANNOT be the basis for the case. Only federal equal protection arguments could be applied (but aren’t here), which would land you in the US SC. In fact, if equal protection were the sole argument, I believe one would have to file in the federal courts.

You should reread the petition more carefully, maybe with a lawyer or paralegal by your side, though I thought the outline very clear and accurate.

Btw, I find the petition very well and clearly written. I really don’t see how they could have written or argued it much better. Let’s hope the majority of four on the court are willing to support it.