I don't have the legal knowledge to know if this argument has a chance in California, but I think his paragraph about the Oregon Appellate Court decision in Martinez v. Kulongoski missed the point completely.
He cites their lack of reference to key gay rights decisions, but the decision in this case was only indirectly about rights or equal protection. The actual question to be decided was only on the topic of when an "amendment" is extensive enough to become a "revision". Oregon's constitution is relatively clear on this distinction compared to California's, making it a matter of addressing a single topic or not. The precedent used heavily in this case was Oregon's Measure 13 in 1994, which was ruled to be an "amendment" and allowed to go to the ballot (where it was voted down 48%-52%) by the same court. It contained a ban on granting marriage rights to same sex couples as well as many other provisions (including an explicit removal of sexual orientation as legally protected class, and banning schools and public libraries from stocking books with positive or neutral portrayals of homosexuality). It would have created a contradiction in precedent to rule the one-sentence 2004's Measure 36 a "revision", while 1994's Measure 13, which had contained a nearly identical provision was a simple "amendment".
Now, granted, California seems to have a lot more precedent on the relevant rights issues, and a lot less guidance on the amendment/revision process than Oregon does. As a result, while I would expect the Oregon case might get a cite, I agree with him that it probably shouldn't be a core component of the decision. But I guess I still can't join his optimism that this vote will be overruled.
OK, I should clarify. My above comment is based on Paul Hogarth's article. Having now skimmed through the Herrera brief, I think the Hogarth article didn't do a good job of summarizing what I think the key idea in the argument is the meta-argument over the nature of the initiative amendment system:
Prop. 8 was created through California's initiative amendment system. The California's initiative amendment itself was created by the legislature in 1911 as an amendment of the earlier amendment process in order to move legislative power to a majority vote. As an amendment, this could only transfer legislative power. It would have required a revision in 1911 in order to transfer legislative and judicial power to the initiative system. And that is the other core to the argument: that by inserting itself into a ruling of the California Supreme Court on equal protection, Prop. 8 not only strips same-sex couples of marriage rights, but unconstitutional strips the judiciary of the meta-right to rule on equal protection matters.
The brief also agrees with what I just said about Martinez v. Kulongoski in terms of it really addressing a narrower issue, and thus being less relevant to this case. It also brings up the impact of Romer v. Evans on this case, but I think it might overstate it a bit. While Romer might be sufficient to argue to overturn the precedent ruling on Oregon's Measure 13, I don't think that it necessarily undercuts the whole of the Martinez argument. You could probably make a plausible case that it does, or that it doesn't. In any case, it will be the Oregon Supreme Court, and not me who decides such things...
Thanks, Grishnash. I was unaware of the argument you point out in your second comment.
10:03 PM, November 14, 2008
Paul Hogarth, a California lawyer whom I know slightly through my friend Paul Dosh, takes a look at the legal challenge to Prop 8, and is more optimistic than before that the California Supreme Court might strike it down: But after having read Herrera’s well-written brief and done some legal research, I am now more optimistic that justice will prevail. Prop 8 was not your typical “amendment” that merely tinkers with the California Constitution. It was a drastic revision that deprives a “suspect class” (gays and lesbians) of a fundamental right under equal protection. And a simple majority vote of the people is not enough to take that right away – especially when the purpose of equal protection is to shield minorities. While other courts have upheld marriage amendments in other states, they have different Constitutions – and court rulings have changed considerably in a short period of time. And unlike many states, California has explicitly found sexual orientation to be a “suspect class.” If the Court overrules Prop 8, it will be a powerful affirmation for justice – capping what has been a powerful year of “change.” I don't know a lot about the differences between an amendment and a revision and the various precedents for making that distinction. But this argument does seem plausible.
posted by Zachary Drake at 2:26 AM on Nov 14, 2008
"An optimistic assesment of legal challenge to Prop 8"
3 Comments -
I don't have the legal knowledge to know if this argument has a chance in California, but I think his paragraph about the Oregon Appellate Court decision in Martinez v. Kulongoski missed the point completely.
He cites their lack of reference to key gay rights decisions, but the decision in this case was only indirectly about rights or equal protection. The actual question to be decided was only on the topic of when an "amendment" is extensive enough to become a "revision". Oregon's constitution is relatively clear on this distinction compared to California's, making it a matter of addressing a single topic or not. The precedent used heavily in this case was Oregon's Measure 13 in 1994, which was ruled to be an "amendment" and allowed to go to the ballot (where it was voted down 48%-52%) by the same court. It contained a ban on granting marriage rights to same sex couples as well as many other provisions (including an explicit removal of sexual orientation as legally protected class, and banning schools and public libraries from stocking books with positive or neutral portrayals of homosexuality). It would have created a contradiction in precedent to rule the one-sentence 2004's Measure 36 a "revision", while 1994's Measure 13, which had contained a nearly identical provision was a simple "amendment".
Now, granted, California seems to have a lot more precedent on the relevant rights issues, and a lot less guidance on the amendment/revision process than Oregon does. As a result, while I would expect the Oregon case might get a cite, I agree with him that it probably shouldn't be a core component of the decision. But I guess I still can't join his optimism that this vote will be overruled.
9:19 AM, November 14, 2008
OK, I should clarify. My above comment is based on Paul Hogarth's article. Having now skimmed through the Herrera brief, I think the Hogarth article didn't do a good job of summarizing what I think the key idea in the argument is the meta-argument over the nature of the initiative amendment system:
Prop. 8 was created through California's initiative amendment system. The California's initiative amendment itself was created by the legislature in 1911 as an amendment of the earlier amendment process in order to move legislative power to a majority vote. As an amendment, this could only transfer legislative power. It would have required a revision in 1911 in order to transfer legislative and judicial power to the initiative system. And that is the other core to the argument: that by inserting itself into a ruling of the California Supreme Court on equal protection, Prop. 8 not only strips same-sex couples of marriage rights, but unconstitutional strips the judiciary of the meta-right to rule on equal protection matters.
The brief also agrees with what I just said about Martinez v. Kulongoski in terms of it really addressing a narrower issue, and thus being less relevant to this case. It also brings up the impact of Romer v. Evans on this case, but I think it might overstate it a bit. While Romer might be sufficient to argue to overturn the precedent ruling on Oregon's Measure 13, I don't think that it necessarily undercuts the whole of the Martinez argument. You could probably make a plausible case that it does, or that it doesn't. In any case, it will be the Oregon Supreme Court, and not me who decides such things...
9:56 AM, November 14, 2008
Thanks, Grishnash. I was unaware of the argument you point out in your second comment.
10:03 PM, November 14, 2008