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California Supreme Court Grants Review of Constitutionality of Proposition 8
The California Supreme Court granted review of a petition challenging the constitutionality of Proposition 8. The court has directed the State Attorney General and Proposition 8 Official Proponents to brief the following questions:
1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal Const., art XVIII sections 1-4.)
2. Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8.
The order was signed by Justices George, Baxter, Werdegar, chin, Moreno, and Corrigan.
To see the actual order in its entirety, go to www.courtinfo.ca.gov/courts/supreme/highprofile/documents/S168047_S168066_S168078-11-19-08_ORDER.pdf
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If the Supreme Court decides that Proposition 8 did not merely amend the constitution, but has the effect of "revising" the constitution, the Court will likely find Proposition 8 to be unconstitutional.
Prior case law establishes that although voters may "amend" the California Constitution by initiative, "revision" of the Constitution may be accomplished only by convening a constitutional convention and obtaining popular ratification, or by legislative submission of the measure to voters. See Raven v. Deukmejian (1990) 276 Cal.Rptr. 326, 52 Cal.3d 336, 801 P.2d 1077.
For a “revision” of the state constitution to be found, it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in the constitution. See California Assn. of Retail Tobacconists v. State of California (App. 4 Dist. 2003) 135 Cal.Rptr.2d 224, 109 Cal.App.4th 792
(Note: the above critique is a close paraphrase of Westlaw headnotes found in the annotations to the California Constitution. )
It's a good bet that the Supreme Court will toss Proposition 8 out. That 6 justices joined in the order is significant. The justices that dissented from the Court's prior decision, even if they believe that decision was wrong, will not hesitate to strike Proposition 8 if its enactment itself violated the constitution.
Wait a minute... the people voted to amend the constitution because 4 rogue justices decided to create law from thin air. Now these same justices think they are going to over-rule the people again, and this time in a more direct revision of history?
I think that the protests by the naysayers were nothing compared to what the people will do if the courts abuse their power again in such a blatant way.
RT. So what are the "people" going to do about the "rogue justices", all but two of which are Republicans? Your definition of a "rogue justice" is a judge that makes a decision that you don't personally like. And by the way, constitutional law is not a popularity contest.
RECALL the cowardly judges. They have 'ruled' from their ivory towers far too long.
California can do better. FAR better.
ezk317 But what stretch of the imagination is it "cowardly", as a supreme court justice, to write an opinion that is certain to be highly unpopular with at least half the population, including the members of your own political party? Its much easier and politically safer not to rock the boat. Fortunately, our country has a tradition of courageous jurists willing to uphold the rule of law regardless of the weight of popular opinion.
Rational_Thinker, you somehow failed to notice that the constitutional issues at hand now are not the same ones considered in previous cases. Take another look at the cases.
Cowardly? Hardly. I would echo what gulliver wrote, but it need not be done here. Gulliver, thanks for posting this.