imported post
Legal Realities of the situation needs to be made more clear before this discussion goes further. As much as I hate throwing cold water on this idea, we need to make it very clear the history of what we're talking about, and what exactly was done on prop 8.
1977: California's marriage law makes it clear that two people of opposite sex are the only ones that can get a marriage license. This, however, did not effect out of state marriage licenses.
2000: Proposition 22: Passed with a 61% vote. This made the 1977 more clear and made it where the only kinds of marriage allowed was between opposite sex couples.
2004: San Francisco starts issuing marriage licenses. A court stops the issuance of the licenses, and in 2005, California Supreme Court invalidated those licenses, saying that San Francisco did not follow proper procedure in challenging Prop 22. San Francisco, as well as other plaintiffs, file court cases. District Court rules Prop 22 and the 1977 law unconstitutional. District Court of Appeals reverses.
2008: In a 4-3 ruling, the California Supreme Court in a 4-3 majority rules
In re Marriage cases that sexual orientation is a suspect class under Provisions of Article 1, Section 7 of the California State Constitution, and rules the 1977 law and Proposition 22 unconstitutional.
Read the decision here:
http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF
Proposition 8, which was an initiative constitutional amendment, essentially presumes to nullify
In Re Marriage Cases. Presumes, being the operative word.
It appears that there's some pretty interesting case law which may make Proposition 8 a revision rather than an amendment. A revision has a much higher bar than an amendment, which requires a 2/3rds vote of the Legislature before being referred to the people.
This is why Prop 8 is being challenged as a revision to the California Supreme Court in the form of
Strauss v. Horton.
http://data.lambdalegal.org/in-court/downloads/strauss_ca_20081105_writ-petition.pdf
This entire situation is why I'm disgusted with the idea of direct constitutional initiatives. If my home state of Washington had a provision for this, our privacy provisions (Article 1, Section 7) would have been rendered a nullity by the law enforcement lobby when our State Supreme Court started hammering down on state law enforcement agencies on a stricter basis than the 4th amendment to the US constitution. We (as Washingtonians) would have been subjected to repeated calls to authority and red herring attacks on the Washington State's better constitutional protections than the US constitution. Luckily the CASC ruled in Raven v. Deukmejian on a similar attack that it was a revision and struck Prop 115 down.
From a political perspective, the Pro-Prop 8 folks went too far. They attacked the entirety of the GLBT population in what is considered the most "pro-gay" state in the union, using every dirty tactic in the book to do so to scare people into voting for it. I can tell you from my hearing of chatter that this was a political "Pearl Harbor" on the GLBT community, on the mistaken belief the Californians that did bother to vote would not vote to strip 18,000 of their marriage licenses. They were wrong. All of the "pro-family" groups had better hope that the CASC does strike down Prop 8 as a revision, because now you have 18,000 people who are now activists who will donate their time, money, and hard work for the battle that will come every 2 years. Believe me, folks, they're wanting to put a "Repeal Prop 8" on the ballot every 2 years and they will not rest until it's repealed, and the opposition to such will take tens, even hundreds of millions of dollars each and every time in a war of attrition that the opposition campaign is likely to lose.
Gun owners should watch and LEARN how the anti-Prop 8 protests and other such things are going right now. If gun owners were this organized as the GLBT community is right this moment after Roberti-Roos, it would have been a footnote in history in the early 1990's. Gun owners should realize that they are not the most marginalized group in society. Gun owners don't have anti-gun organizations trying to put in constitutional amendments to repeal state RKBA provisions and then tell you that you can never own guns ever in your life. Gun owners don't have anti-gun organizations trying to put in constitutional amendments to ban you from being able to adopt children if you own guns. Granted, this is being done very surreptitiously and not openly and via twisted case law (which was finally reversed by
Heller), but if gun owners were flat out openly attacked in the fashion as the GLBT population has been, there would have been a full on Second Revolution decades ago.
That being said, the Legislature cannot pass a "gay marriage" bill if Prop 8 is held to be an amendment. This idea of combining a bill in re PC12050 and the Family Code is DOA. Right now, only the California Supreme Court can declare Prop 8 a revision, or declare it a violation of the 14th amendment.