By Andre Verdun

On November 19th, 2008 the California Supreme Court agreed to consider a legal challenge by several groups who are contesting the Constitutional validity of proposition 8 along with the legal status of same sex married couples that have entered into a legal marriage during the time same sex marriage was a recognized fundamental right.

Six of the seven Justices agreed to review the issue, at the urging of both the “Yes” and “No” on 8 campaigns, of whether or not Proposition 8 is an amendment to the California Constitution, as ProtectMarriage.com has insisted, or a revision to the Constitution as urged by the opponents Prop 8.
Joining in the argument that Prop 8 was an unconstitutional revision is, among others, the City and County of San Francisco, the City and County of Los Angeles, and 40 members of the California State Legislator who filed an amici brief (“friend of the court”) stating that Proposition 8 should be struck down as invalid because it usurped their power as a legislative body by bypassing their duty to vote on the Constitutional revision.

The campaign for No on Prop 8 sought the courts answer to this identical question in the weeks leading up to the election, but as expected, the Court denied review for lack of “justiceability”; that is, the case was not ripe for review.

The specific question before the court now is: Whether taking away a single fundamental right from a protected class of people is a revision to the California Constitution? This particular question has never been before the Supreme Court because the State of California has never sought before Proposition 8 to single out a classified group of people and change the Constitution to eviscerate a fundamental right.

While this specific question before the California Supreme Court is unique, the court has on 9 previous occasions ruled on the issue of “revision/amendment” analysis, of which in three cases the California Supreme Court overturned a Constitutional initiative as an illegal revision. Under Article XVIII of the California Constitution, an amendment is something that adds to the Constitution in a way that better carries out the purpose of the document within the lines of the original instrument, while a revision is something that changes the function or structure of the document or changes the basic governmental plan.

Therefore, the No on 8 campaign will argue that allowing the majority to simply vote away a fundamental right from a protected class of citizens changes directly the substantial entirety of the Constitution by not only altering the 5 provisions the Court said required them to grant same sex couples the fundamental right to marry in In Re: Marriage Cases, but also revises the entire “spirit” of the Constitution by stripping away the Courts duties to protect minority groups and protected citizens from discrimination against them by the Government and majority rule.

The Court will also determine the legal status of the marriages that took place before Proposition 8′s passage; however, because no brief has yet to be filed by either side as to the legal arguments for their respective side, one could only guess as to the legal arguments to be urged by either side. The “No on 8” group will likely argue that there are serous state and federal Constitutional issues with stripping away a vested liberty interest away from citizens without proper procedural due process of law, which requires formal proceedings before any liberty interest can be taken away. Also, the “No” campaign will argue that the marriage ban cannot be retroactive because there was no language in the Constitution that specifically applied it retroactively. The Yes Campaign will argue that the plain statement of Proposition 8 would require that no marriage, whether legal before to November 4th, 2008 or not, cannot be recognized as valid in the State of California.

All briefing is due by January 15th and the Court Press Secretary says that oral arguments could be held as early as March 2009.

Prop 8 proponents threaten California judges. Read about it in today’s New York Times article “With Same-Sex Marriage, a Court Takes on the People’s Voice” by Jesse McKinley at http://www.nytimes.com/2008/11/21/us/21marriage.html?_r=1&th&emc=th&oref=slogin

By Karin Quimby
Sunday, November 16, 2008

The vote on Proposition 8, which eliminated the civil right to marry for gay and lesbian couples in California, was a crushing, disgraceful vote. The moment I learned of the outcome, I felt like my home had fallen down on top of me. And atop my crumpled house and my shattered self sat self-righteous religious folks pleased that they had managed to crush me and my people. They have “saved” marriage for themselves, for the time being. They have confirmed that they are ignorant at best, or at worst, claim the authority to judge. They have contributed to what will one day be remembered as a shameful chapter in American history.

I wrote before the election that we need to talk to one another, to share our personal stories, to recognize how we are all human beings doing the best we can to live and love. I was heartened by the mothers and fathers of gay and lesbian children who showed up at our phone banks to share their stories with prospective voters. I was moved by the straight women and men who likewise volunteered because they want their children to grow up in a world where everyone is treated equally.

I have spent years consciously developing relationships with many people from many faiths to live out the call to love one another. I was, therefore, not prepared for the inhospitable venom that was spewed at me during the campaign and in the final vote, all in the name of “religious freedom.” When I heard “pervert” shouted at me, or listened to those on the phone tell me that God condemns homosexuals, such attacks felt very, very personal, while, at the same time, they were used to limit the civil rights of an entire group of people.

After this campaign, I now have to wonder who in my neighborhood, my workplace, my family, my church, my exercise class, or the grocery store line voted to eliminate my civil rights and on what basis they decided to do so? Were they afraid that their children would be taught that gays and lesbians have families and children and are human beings, too? Were they concerned that they would not be able to condemn homosexuals in their church? Or were they worried that heterosexual families are crumbling and need to blame it on someone other than themselves?

I have to wonder, do these people really not recognize my full personhood? Do they consider me an abomination? Do they think they are more deserving of civil rights than I am?

These are just some of the questions that I and my dear, wonderful friends and family are asking as we pick ourselves up off the floor and decide how to proceed, after this appalling public humiliation that dealt a crushing blow to our belief in the value of equality.

I know we have a lot of work to do to help people realize that gay and lesbian people are fully human — no better and no worse than heterosexuals — after centuries of religious teachings that would seem to tell us otherwise. That is why I am so grateful for the religious people in my life — evangelicals, Baptists, Mormons, Episcopalians, Catholics, Methodists, Lutherans, United Church of Christ, Unitarians, Muslims, Jews, Buddhists and many others who are spiritual, but not religious, and still others who want nothing to do with religion — all of whom truly, deeply, completely accept me and love me for who I am.

They are the ones who are helping us rebuild our fallen homes and who offer words of comfort to heal our hurt, battered selves. They walk with us and hold us up as we find our way through the wilderness of this “new America” that has voted to exclude us. I know the path will be long, and it certainly is painful, but, in the end, there will be reconciliation.

— Karin Quimby, Ph.D., of Ojai, is co-chairwoman of the No on Proposition 8 Campaign, Ventura County.