So I interrupt the personal finance for a little dash of politics. Or, more specifically, a legal / campaign strategy question.
The background:
For those of you unfamiliar with Prop 8 – it’s a California ballot proposition that defined marriage as a right between a man and a woman and thus limited the rights of gays to marry. (In May 2008, the California Supreme Court ruled that gays have the right to marry). Prop 8 passed in the November 4, 2008 general election.
The scene:
Right now the opponents of Prop 8 (people who support gay marriage) are arguing in the California Supreme Court that because Prop 8 constitutes a “revision” instead of an amendment to the state constitution, it needs approval by 2/3 of the legislature instead of a ballot vote. Thus, the California Supreme Court should overturn Prop 8.
The supporters of Prop 8 (people who oppose gay marriage) are arguing that Prop 8 is an amendment, NOT a revision – a revision is only needed for structural changes to the government and Prop 8 does not qualify as a revision.
So here’s my question (maybe some legal eagles can chime in?):
If opponents of Prop 8 argue that the ballot measure was a revision rather than an amendment, and that it should be invalid even if it passed, would the opponents of Prop 8′s resources have been better served trying to establish the invalidity of Prop 8 before the election. Is that even possible (i.e. to say a ballot is unconstitutional before it has passed and becomes law)?
I did not see a single mention of Prop 8 might be unconstitutional before Prop 8 passed. I don’t think “separate but equal” treatments are ever equal (and I can’t imagine not being able to marry someone with whom I want to build a life with), but the whole proceeding struck me as a little, well, backwards.
*I know Prop 8 can raise heated debate. Please be civil in your comments. Thank you.
Related posts:
*the following is not legal advice, just my take on it*
most times before a measure is passed, the issue is not ripe for review by courts because there is no relief the court can provide – there is no wrong done until the measure is passed. Arguing about constitutionality of a proposed amendment is a valid argument in drafting legislation, but usually only if you are for the legislation in general but want to avoid being overturned for the measure being unconstitutional. The supporters will just rewrite the proposition until it is constitutional. If something is found unconstitutional it takes at least some more energy to start the ball rolling for a second try, and if you are against the legislation you can hope they won’t get up that momentum again.
Would the No On 8 crowd’s resources been better spent trying to establish that Prop 8 was a revision and not an amendment before the election? No, I don’t think so.
Legislatures sometimes don’t spend a lot of time worrying about whether what they want to do is constitutional, and I suspect in a controversial ballot initiative that is even more true. So I don’t know if that argument would have gotten them anywhere tactically. It might have actually hurt them because the revision/amendment argument is so over most people’s heads without a lot of background they don’t necessarily want to listen to. Legislators and commentators can–and do–argue during the legislative process that a bill is unconstitutional and therefore should not be passed. I suspect that didn’t happen during the Prop 8 debate because (1) No On 8 was overly cocky that they’d win and so didn’t give a lot of thought until the last weeks of what would happen if Prop 8 passed, (2) the revision/amendment argument is a pretty obscure, uphill constitutional argument that so far as I know only exists in California so laypeople and even legal observers not intimately familiar with the specifics of California-specific constitutional would not have known enough to make it in public discourse until the shit hit the fan and they were scrambling for a Plan B, and (3) precisely because it is so obscure, in a ballot initiative it’s not going to convince Jane Voter of anything.
The fact that they didn’t make those arguments isn’t going to hurt them before the CA Supreme Court. Mostly because there’s no way to prove definitively that a law is constitutional or not constitutional before it is enacted and then litigated. The only branch of government that can say definitively what is or is not constitutional is the judicial branch, and they can only make that finding when a case is in front of them. It’s called the “justiciable case or controversy” requirement. Courts can’t give opinions about whether a proposed law would be OK or not until that law has been enacted and is being litigated in front of them. They generally can’t give opinions in advance about whether something would be constitutionally A-OK if it were to be enacted.
Its all a big mess. I want to go into law and was lost on that third sentence.
It’s a moot question. Opponents of Prop 8 did try to establish its invalidity before the election, filing suit in July, 2008, to have it removed from the (upcoming) ballot on the grounds that it was a revision, not an amendment. (The CA Supreme Court, obviously, denied the challenge.)
I *did* hear about the plans to appeal Prop 8 due to the amendment vs revision argument (if it passed) before the election–they didn’t just make it up afterwards. I think their efforts–publicly, at least–were more geared towards convincing voters that this law didn’t make sense in terms of basic human rights. (i especially liked the comparison to women’s suffrage…)
no idea about the legalities, though I really enjoy the dance of working through laws and arguing the details and various interpretations and precedents. it’s like a logic puzzle!
However, I personally would hate myself if i were trying to find a loophole in the law that suppressed civil liberties like this!! …guess that’s why i’m not a lawyer.
Thanks, Sapphocrat. I had forgotten about the efforts to have Prop 8 removed from the ballot. I doubt very much that will make a difference to how the court decides it now, though. (Hoping…)
“If opponents of Prop 8 argue that the ballot measure was a revision rather than an amendment, and that it should be invalid even if it passed, would the opponents of Prop 8’s resources have been better served trying to establish the invalidity of Prop 8 before the election.”
Yep, I think it would have been better served trying to establish the invalidity of it before the election. And I have no idea if that’s legal or not.
The whole thing is messy, messy, messy. Thanks for covering the lawsuit here. I’m going to perk up and stay tuned.
Even though I don’t think law school is for me, I really, super, love legalese phrases like “justiciable case”. Yes, such a nerd.
But thank you for that explanation!!