Quote:
Originally Posted by filtherton
How would you know that rights the constitution explicitly grants? You haven't read it. It sounds to me like rights granted by the constitution with respect to the ability of the people to amend via referendum are limited. If this is true, and the courts decide that prop 8 is unconstitutional, then it seems entirely possible that they will have done so in a constitutionally acceptable way.
In other words, you are mistaken.
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You're the one who is mistaken.
Read the California state constitution. You won't find anything about marriage being a right anywhere in there. The closest thing to it you're going to find is the equal protection clause, and the courts formed an opinion based on it, that opinion being that California's equal protection clause prevents discriminating against same-sex marriages (Nothing about gays, in general). As the court exists to make ensure that every law is in-line with the Constitution (First the U.S., Constitution, then Federal statutes and then the state constitution), then their opinion would trump a law they deem to be in violation of the constitution (Which Proposition 22 was). Okay. Fine. That's the democratic process at work. Prop 8 was an entirely different monster all together, as it amended the state constitution itself. As such, there is no legal basis on which to claim it's "unconstitutional". The amendment changed the thing the courts are supposed to base their decisions on and the courts have a duty to uphold the constitution, regardless of how "wrong" or "unfair" one might view it to be.
But, see, that's not even the point. The point, as I understand, is whether or not Prop 8 should have even been allowed on the ballot to begin with and, from what I understand, is that the court is going to rule on Prop 8's side on the whole "amendment/revision" issue, since it did not fundamentally alter the state's governing structure. But like I said, I expect Prop 8 to be upheld and all those gays who married before the ballot passed would stay married, as there is nothing in Prop 8 that would indicate it was intended to invalidate all marriages that had been performed prior to election day, which would make sense since no marriages had been performed at the time it was drafted.
But, *shrugs*, we'll see what happens in about 12 hours.