Thursday, November 06, 2008

CA: Proposition 8 is immediately challenged in court, could be overturned

There is a possibility that Proposition 8 in California is itself unconstitutional. Gay activists are developing arguments to the effect that the original equal protection clause in the California state constitution (as it was interpreted by judges in striking down the anti-gay marriage law) prohibits an override with another amendment passed by a simple majority.

To a novice, it sounds dangerous that a state constitutional amendment like this could be passed by a simple majority introduced as an initiative and voted on in a referendum. Yet, progressive writer Naomi Wolf, in her recent book “Give Me Liberty” encourages more direct democracy and referendums. But this process is dangerous when dealing with minorities.

Karen Ocamb has a story on Alternet, “Gay Marriage Ban Looks to Have Passed, But Is It Legal?” here.

Wednesday two lawsuits were filed to invalidate Proposition 8, within the California judicial system. One was filed by Lambda Legal Defense and Education Fund (LLDEF) and the other was filed by Rocky Delgadillo joined yet another lawsuit filed by San Francisco City Attorney Dennis Herrera and Santa Clara County Counsel Anne C. Ravel.

In the 1990s, Colorado’s state constitution “Amendment 2” was overturned by the United States Supreme Court (Evans v. Romer). A very negative amendment in Oregon was turned down by voters in 1992.

California Attorney General (and former iconoclastic governor) Jerry Brown says that the 18000 or so gay marriages performed in California such June will stand (this includes Ellen DeGeneres), but Jeffrey Toobin, on CNN, says that whether the amendment invalidates these marriages is still a legal condundrum.

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