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Maybe the gays should just take their discrimination and go away quietly…

gMarriage.jpgAs we’ve talked about on this site, and as has been talked about a gajillion other places, California’s Prop 8 passed on Tuesday, stripping gay couples of their recently court-granted right to marry. Because, apparently, if they marry, our schools will have to teach our children about gay marriage and our daughters will come home talking about marrying princesses. …If I ever have a daughter, she could do a helluva lot worse than marrying a princess, but that’s beside the point.

Two interesting things yesterday, about this. First is the credible argument that Obama inadvertently helped the demise of gay marriage in California as our state had a record black voter turnout, and blacks were polling in favor of Prop 80 70-to-30, well beyond any other racial denomination. According to one political scientist, while there’s been a “generational shift” causing younger voters to be more in favor of equal rights for gays, that shift hasn’t hit the black community.

But folks aren’t taking Prop 8’s success sitting down. The ACLU has filed a petition with the California Supreme Court arguing that the Prop is an improper attempt to chisel away the constitutional right to equality. The linked article doesn’t discuss the details, but the basic gist of the argument as I understand it is that California law allows propositions or other methods to make tiny amendments to the California constitution on their own. But where there’s a significant change to the constitution, changing its application or effect, the amendment must be legislatively approved. And the Legislature never approved Prop 8 and, thus the argument goes, the amendment to be created by Prop 8 is illegal. The argument sounds good on its face, though I admit to being ignorant on any of the details so I have no idea how strong it will turn out to be. But we can hope.

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Comments

As far as I can tell, they plan on using Article 2 section 8 of the Cal Constitution. It's the section about initiatives and amendments.

(e) An initiative measure may not include or exclude any political subdivision of the State from the application or effect of its provisions based upon approval or disapproval of the initiative measure, or based upon the casting of a specified percentage of votes in favor of the measure, by the electors of that political subdivision.

It seems a bit dense to me. Not sure the exact definitions of all of that, but it seems to me to support the argument that it was an improper initiative.

Since you guys are the only lawyer I know personally (hey, you _are_ quizLAW.com, aren't ya?)--what happens to the gay couples who already tied the knot prior to Prop 8's passing? They can't say the marriage is invalid, can they? If pre-Prop 8 gay marriages are valid (but no gay couples can marry thereafter), where does equal protection of the law come in?

True_Blue, the issue of the current marriages is up in the air. One one hand, you generally can't make laws that are retroactive. On the other, the Proposition stated something along the lines of homosexual marriages not being "recognized" in California. Therefore, proponents could argue that they aren't undoing the previous marriages (they'd still be recognized in other states that recognize marriages from other states... if that makes sense), but they won't be recognized in CA any longer. That issue, in itself, will be a long court battle.

Slate has a good discussion on this: http://www.slate.com/id/2203911/

p.s. 15 days until Bar results, eep!

Since when should minority rights be put to a majority vote? If this was always the case we'd still be living in the 1840's. Prop 8 should be thrown out by the Supreme Court due to the fact that it's tyranny of the majority.