Prop 8 Protest Information Thread

[Gemini Cricket]

An interesting Op-Ed piece:

...there exists a more direct means of challenging Proposition 8 based on the U.S. Constitution.

Following the enactment of Colorado's Amendment 2, its opponents filed suit claiming that it unlawfully singled out gays and lesbians as a class to deny them rights that other citizens not only possess but take for granted. These rights include access to housing, government services, public accommodations and public and private employment opportunities without regard to an individual's race, sex, religion, age, ancestry, political belief or other characteristic that defines each of us as a unique human being. Amendment 2, the opponents argued, therefore denied gays and lesbians the equal protection of the laws, which is a guarantee of the 14th Amendment to the U.S. Constitution.

Source

[Ghoulish Delight]

There's also this oft-cited excerpt from Westbrook v. Mihaly 2 Cal. 3d 756.

"constitutional rights may not be infringed simply because the majority of the people choose that they be"

Unfortunately, while I can find plenty of people making reference to the quote, I can find no details on the actual case and whether it might apply to this one.

[wendybeth]

Maybe what's happened in Cali may be for the greater good overall. It's got people all across this country talking, and moved more than just the Mormons and Fundies to action. When people see this for what it is- a Constitutionally guaranteed right that is being denied a specific class for religious reasons- well, I think it might make others who might not have had any real opinion on the matter sit up and take action. One step back sometimes leads to a great leap forward.

[Gemini Cricket]

Originally Posted by wendybeth

One step back sometimes leads to a great leap forward.

[innerSpaceman]

Yes, I hope that's the case.


In any event, I've no doubt that this is the perfect thing to have happened .... because it did.

[Alex]

Originally Posted by Ghoulish Delight

There's also this oft-cited excerpt from Westbrook v. Mihaly 2 Cal. 3d 756.

"constitutional rights may not be infringed simply because the majority of the people choose that they be"

Unfortunately, while I can find plenty of people making reference to the quote, I can find no details on the actual case and whether it might apply to this one.

You can read the case decision here (it is a ZIP file containing a TXT file). Search for "--*--" to get down to the part where the analysis ends and the decision starts.

The issue in the case seems to have been two bond measures passed in San Francisco in 1969. They passed with a simple majority but not the super-majority required by the California constitution (back in 1970, don't know about now). Supporters filed in attempt to have the courts require certification of the bonds as having passed on the grounds that California's 2/3rds majority requirement for bond measures was a violation of the Equal Protection clause of the 14th amendment. (On the grounds that in such a requirement a No vote has twice the weight of a Yes vote.)

I just skimmed it, but I believe the court ruled that there was not a sufficient governmental interest in the two-thirds requirement and struck it down (but I may be misunderstanding my brief skim since I know many places do still have such requirements).

The placement of the quote is in rejecting the idea that the 2/3 requirement is allowable simply because it was correctly incorporated into the state constitution. (Essentially they are saying "no, if this is unconstitutional otherwise, it is not made constitutional simply for having been legally added.")

However, that decision doesn't seem to be the actual source for the quote. And what it weird is that it apparently could be cited from a much more prominent source. According to the footnotes in Westbrook v. Mihaly they are quoting Lucas v. 44th General Assembly of Colorado (1964) when they rules that the state's new state legislature redistricting plan was unconstitutional and needed to be redone.

It is this opinion, written by Chief Justice Earl Warren that the quoted bit appears. Admittedly they apparently finally found a catchy way of saying it. In footnotes associated with this quote they reference themselves (the Supreme Court previously saying:

One's right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. - West Virginia State Bd. of Educ. v. Barnette (1943)

and

No plebiscite can legalize an unjust discrimination. - Hall v. St. Helena Parish School Bd. (1962)

Anyway, that is all way more than I intended to seek out. It was an interesting 40 minute journey of reading. Surprisingly that Mihaly decision makes for an interesting read, at least as a skim.

[Cadaverous Pallor]

Only people who live outside of this state think that "Cali" sounds cool.

I'd be very optimistic about an eventual federal constitutional amendment awarding equal rights to gays on all fronts except for the fact that this administration and congress has a crapload on their plate already. It takes a lot of oomph to get an amendment passed. I do think it's possible and actually rather likely if you look long term.

[Cadaverous Pallor]

VAM for the research!

[Alex]

Which 38 states do you see passing a gay right amendment to the constitution? I'd be amazed if you could get 15, let alone 38 (and an amendment would never get out of congress without a kill switch so you couldn't let it sit for 190 years like we did the 27th Amendment).

Or, to even get to that point, which 66 senators and 288 congressman? Even if the Democrats votes unanimously in favor of such an amendment (and they wouldn't) they're nowhere close the the threshhold.

No, the only chance any time soon for full secured equality for gays is if the US Supreme Court decides that it is already there in the constitution. Just as there is no way we'd pass such an amendment I think it is probably (though we just got bit in the ass on that assumption, didn't we) true that an amendment to reverse the USSC probably wouldn't get anywhere either.

[innerSpaceman]

Originally Posted by Cadaverous Pallor

Only people who live outside of this state think that "Cali" sounds cool.

Hahaha. I've almost gotten so used to my Vegas friends calling it that. But just as they've taught me the correct way to pronounce "Nevada" (i.e., the way Nevadans say it), I hope to one day prevail upon them that the correct way to say California is the way Californians say it (i.e., California).