November 6, 2008

So Proposition 8 has 400,000 more yes votes than no votes–and there are still three to four million votes left to count.

And even if it ends up winning a majority of the votes, it will be invalid anyway, since the proposers didn’t follow the procedure required in cases like this by the California constitution.

All is not lost.

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9 Responses to So Proposition 8 has 400,000 more yes votes than no votes

  1. Dan says:

    I’m nonetheless pessimistic on the legal challenges to the ballot initiative (referring to your second link). I can envision several court scenarios in which the challenge is dismissed, though if only I were a lawyer I could back up my claims with some knowledge.

  2. Andy says:

    Well, Dan, I would tend to agree, except bear in mind that the California Supreme Court ruled *unanimously* that bans on same-sex marriage violated the state constitution; they found that it was a fundamental right and, for the first time in history, labeled gay people as a “suspect class,” meaning, a distinct subset of the population marked by an immutable characteristic which has historically suffered discrimination because of that characteristic. Note also that the California legislature *twice* passed bills establishing same-sex marriage, which were vetoed by Gov. Schwarzenegger. I mean, this lawsuit is definitely worth a shot. The court looks sympathetic. The legislature definitely is. If the court invalidates 8 — a move for which there is precedent dating to 1990 — then, at best, the bigots have to go back to the drawing board and try to get a new proposition approved BY THE LEGISLATURE and then onto the ballot. And the next statewide election in California is…when? And, how many couples could be married before then? I say let’s pursue ANYTHING that buys us time. Seriously, the worst that could happen is that we lose and Prop 8 stays, which means we’re no worse off. So really, we have nothing to lose. We need to go for it.

  3. Sharon says:

    Thank you for those links (especially the second one). One week into law school, and I was wondering about the basic legality of Prop 8 for that reason (and wondering about how it was supposed to affect the couples already married, because I’m pretty sure that if it voids them, it’s unconstitutional).
    Not a lot to do other than keep hope alive, huh?
    At least reading this reminded me why I am changing careers and starting law school at this point in life, surrounded by little kiddies.

  4. Dan says:

    Andy, Prop 8 amended the California Constitution so the state courts, even their highest, have their hands tied. They can no longer say banning same-sex marriage is unconstitutional since now it is constitutional. The only remaining constitution to check would be the U.S. Constitution, with which the state constitutions may not contradict. State courts often use the U.S. Constitution when interpreting state laws in the absence of guidance from their own constitutions, but that exposes them to federal cert; federal courts tend to accept cases when non-federal courts interpret the U.S. Constitution. That would be a losing proposition in this instance since our highest court is clearly not friendly toward same-sex rights and also there’s a nasty little law in the U.S. Code that’s been upheld: DOMA. Stare decisis can be a bitch.

  5. Canada says:

    As exciting and inspiring as an Obama victory is, I’m still glad we moved here where gay marriage is legal and not even on anyone’s political radar anymore.

    Oh yeah, and where everyone has basic health care.

  6. Andy says:

    Dan: they’re not objecting to the revision on the grounds of the constitutionality; you are correct on that point. The argument is that, for this kind of revision, the California constitution specifies that the Legislature must approve the language before it goes to the ballot, which was not done in this case. It’s procedural. And my point is, we’ve got a sympathetic court and the legislature, perhaps, would be unlikely to approve the proposition for the ballot. Even if they do get it back on the ballot…would it pass a second time? You know, just thinking out loud…one of the hurdles this time was the large African-American vote; that’s not typically a sympathetic demographic for us. Put this proposition back on the ballot at a time when we’re not voting on America’s first African-American president…might the demographics of the turnout be more favorable to us? Seriously. Why not try this?

  7. Cataline says:

    Re Andy’s claim that “the California Supreme Court ruled *unanimously*,” the last time I looked at In re Marriage Cases (2008), the court had ruled 4 to 3 in favor of same-sex marriage. Would that Andy were right, but alas it wasn’t so. All of which makes me wonder whether the “revision” v. “initiative” argument is going to win. I hope it does, but I’m not sure things are so clear.

  8. Andy says:

    I stand corrected. I had New Jersey’s Lewis v. Harris. I went back and checked In re Marriage (it’s sitting here on my desk). Four justices ruled in favor of same-sex marriage; three justices concurred in part and dissented in part, coming instead to the different conclusion that if marriage in California were to be changed it should be at the will of the voters. I still think it’s worth it to try. If the California constitution specified a certain procedure for this type of revision and it wasn’t followed, we have the right to have it thrown out. The worst that can happen in this instance is that we find ourselves right back where we are now, which is to say, no worse off for having tried.

  9. birdfarm says:

    White queers need to learn how to build alliances with people of color and especially African-Americans. It’s not impossible, it’s not even hard, but we have to realize that we need each other. We have to take that seriously.


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