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A Constitutional Amendment can be overturned? November 20, 2008

Posted by neoavatara in Politics.
Tags: , , ,
Is this document worth anything anymore?

Is this document worth anything anymore?


The California Supreme Court has expectedly taken cases to challenge the recent Prop. 8 Constitutional Amendment in California banning gay marriage.

First, let me explain my feelings.  I personally don’t think marriage is an area the government should get involved at all; whether heterosexual or homosexual.  I believe it as a purely religious union, one based on faith and God.  And because of that, I am against all laws banning or allowing marriage.  So I was generally against Prop. 8.

Now, that said, it is absurd the court can overrule a constitutional amendment.

The state constitution is the highest law of the land in California, barring Federal law.  Federal law clearly states that marriage law is based upon state law, so it falls back to California.  That said, once a constitutional amendment is approved by voters, it should be the law of the land, barring any procedural mistakes.

If the Supreme Court of California overturns this amendment, that means that the court has no restrictions on its power what so ever.  It is separate from the people wholly, and cannot be regulated.  That was never meant to be the way the system worked.

I am not in favor of Prop. 8; but in this case, if the California Supreme Court overturns a constitutional amendment, if will be a sad day for jurisprudence.



1. jonolan - November 20, 2008

The plaintiffs are arguing that there was a procedural mistake. They claim that Prop 8 isn’t an addition to the constitution, but a revision of it. Revisions of the CA constitution cannot be enacted directly through referendum voting; they must be brought forth from both house of the CA legislature and then put to public referendum.

2. Jim - November 20, 2008

The problem is when it conflicts with other constitutional amendments or if it wasn’t properly assigned the correct legal standing (i.e. being a revision or an addition to existing amendment which means either 2/3s vote or 1/2 vote needed) before being added to the ballot (both of which are points #1 and #2 that the court will decide on). The 3rd item they are going to decide on is what to do with the existing same-sex marriages – whether or not to divorce them and how to handle divorcing 18,000 couples. Both the opposition and supporters brought this to the court to make sure it’s handled properly.

It’s highly unlikely it will get overturned, but this is the normal way California propositions are settled (after the election not before it passes). It’s just getting expedited due to the number of requests on both sides.

3. neoavatara - November 20, 2008

Both Jim and jonolan make the plaintiff’s point. Procedurally, was the amendment valid? That is a fair argument, and the three propositional amendments that have been historically overturned were on similar grounds.

I think the court has to be careful, however, not to make its power limitless. Constitutional amendments are part of the democratic process. If there is a procedural issue, I would have preferred they brought a court case months ago, before the election. That would be the proper time to have asked that question.

Ultimately, it comes down to whether there is a defined right to gay marriage under California’s constitution. They claimed there was such a right; does that automatically mean this is a revision of the constitution? And if so, why was the proposition allowed to stay in the ballot?

As for existing marriages, that is a very complicated; I am a legal neophyte, and can’t see anyway they can grandfather this in. I would think those marriages should stay legal; but again, I don’t know the law enough.

Any additional comments are appreciated…

4. Jim - November 20, 2008

If there is a procedural issue, I would have preferred they brought a court case months ago, before the election. That would be the proper time to have asked that question.

In California, you can’t do that. You can only bring something into the court system that’s a law or goes against a law or supposedly goes against a law. You can have a court ruling on something that’s not a law yet.

Actually, in May 2008 the court ruled that CA state constitution did allow for same-sex marriages, that’s how this ballot initiative and now amendment got started.

The proposition was allowed to stay on the ballot because there’s only 1 qualifier to get something on the ballot, you need a bunch of signatures. There’s no other qualifier. There’s been talk about having a ballot measure to require other ballot measures have an independent review before going onto the ballot, but everyone here in CA has talked about that for years and I haven’t seen it on the ballot. Hopefully, someone might commission enough people to get signatures to get it on the ballot next time.

The whole CA ballot initiative process needs to be reviewed. Twice over the recent years the state legislature voted over 2/3s to allow same-sex marriages as a new law, but the governor wouldn’t sign it instead Arnold wanted to wait and see how the court ruled in May 2008. The Govenator actually supports same-sex marriages but didn’t want to sign off on a new law if the courts found that it was acceptable (which the courts did).

There’s actually a precedent set in the US Supreme Court or Constitution about how to handle things before something became unlawful, so I’m pretty sure they’ll side with the US Constitution and permit the existing 18k marriages to be valid (18k same-sex marriages were between May ruling and Nov 4 when it was legal).

5. Tom Dibble - November 20, 2008

You ask “Is this document worth anything anymore?”, and that’s PRECISELY the right question to ask here. In fact, it’s the question the CASC is gearing up to ask.

IF all it took to radically change the Constitution was a handful of signatures, a deceptive campaign, and 50%+1 initiative ballot votes, then, indeed, the CA Constitution means NOTHING. It’s just another law.

Constitutions are SUPPOSED to be hard to change. For whatever reason California allows “minor” changes (amendments) to the Constitution with a scant majority. Precisely what “minor” means here, though, doesn’t get tested often enough for it to be well-defined. However, I think it’s clear that if “minor” includes removing a previously-deemed “fundamental right” from a protected minority group … well then pretty much ANY change would be “minor” except perhaps dissolving the Constitution altogether and establishing Schwartzenegger dictatorship.

6. neoavatara - November 20, 2008

I didn’t know that you could not prohibit the proposition before the vote. That is useful information.

Second, in response to Tom, I agree totally that a Constitution, IMHO, should not be easy to change. But that is NOT the case with California’s Constitution. I would never right a constitution that had such easy capability to change fundamental rights; in this case, a majority vote of the electorate.

But, my problem is, that is the law of the state of California. I would fully support making it harder to have constitutional amendments…ironically, that is a proposition I would support strongly!

I fear that if the court overturns this, then what is going to happen is a national movement for a US constitutional amendment…something I am vehemently against.

Despite all the legal issues, one thing is clear. If California cannot get a majority of voters to support gay marriage, almost no state will.

7. Jim - November 21, 2008

I imagine that the court will let everything stay as is. There’s 6 repubs and 1 dem appointed judge and everyone was surprised they came out 4-3 (3 rep+1dem vs 3 rep) in May to say that the current state constitution didn’t explicitly define marriage. So I’m pretty sure it’ll be something like a 5-2 or 6-1 or even unanimous decision (the dem appointed didn’t even want to hear the case, just let it stand).

It will be on the ballot again next time and I think it’ll pass with around 55 or maybe more. The opposition (same-sex supporters) were extremely disorganized. Now there’s lots of activity at the city/community level and support groups formed. With more activity/news, they will reach more. Their campaign was awful and they didn’t know how to target their money/outreach. With all of the exit polling and new surveys, they should have a good idea of what to do next time.

Since Nov 4, between 8% and 10% of Prop8 supporters (to ban same-sex marriages) have changed their mind and the opposition only needed like 3% to flip the majority. Stats based on recent SurveyUSA polls conducted for San Fransisco and San Diego TV stations after the election. You can look up the survey results on SurveyUSA web sit.

8. Justin Kertson - December 20, 2008

It is the job of supreme courts to decide if laws, including Constitutional amendments passed by only a simple majority, meet Constitutional standards. They have ever right and indeed, this would not be the first time that a state supreme court has overturned such an amendment.

neoavatara - December 20, 2008

I agree in principle. The problem is, if you are going to have ballot initiatives as a method to change the constitution, then it has to be just that; a way to change the constitution. For example, if Congress and 2/3 of the states decide to change the US Constitution, then the Supreme Court has NO oversight, i.e. cannot overturn the amendment. I personally think ballot initiatives are a terrible way to institute new amendments to state constitutions…but as long as that is the law, we should abide by it. Otherwise, basically you are nulling any ability to change the state constitution.

9. Jim - December 20, 2008


I think everyone agrees with your most recent comment. The problem is that it wasn’t 2/3s of the voters, just 50%+1. If the courts decide that it wasn’t categorized properly and should have required 2/3s vote, then it would have failed. The problem is that all changes requires 2/3s, but this prop was submitted as adding something new rather than changing something so it only required 50%+1 votes.

10. neoavatara - December 23, 2008

Fair enough. If that is the legal course of action, to get 2/3 vote, then that would be acceptable. I would only ask that whatever system is set to amend the constitution, it be abided to. Again, I think the proposition method is a terrible way to change any document that inherently is made to protect the rights of the minority, not the majority.

11. John - March 6, 2009

The Supreme Court has no right to over turn a Constitutional Amendment. If there were questions about amending the constitution, they should have been brought to the courts before the election and the vote. This is like having the US supreme court remove parts from the US Constitution.

12. Joe - April 22, 2009

Just to clarify, the 2/3 vote is a legislative vote required for revisions, not a general vote. 50% + 1 would still hold either way, but revisions require a legislative vote while amendments do not.

I’m not aware of any precedent for a state supreme court overturning or declaring unconstitutional an amendment. It obviously poses many issues, but when two components of a constitution conflict one must be invalid eventually. The simplest answer to this problem is to not answer at all, to skip the constitutional question and void/approve the amendment on procedural grounds.

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