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Author Topic: California Proposition 8 Ruling Tuesday May 26th
Gaoics79
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quote:
(h) (1) For purposes of subdivision (a), the terms "purchased" and "change of in ownership" shall not include the purchase or transfer of the principal residence of the transferor in the case of a purchase or transfer between parents and their children, as defined by the Legislature, and the purchase or transfer of the first $1,000,000 of the full cash value of all other real property between parents and their children, as defined by the Legislature. This subdivision shall apply to both voluntary transfers and transfers resulting from a court order or judicial decree.
(2) (A) Subject to subparagraph (B), commencing with purchases or transfers that occur on or after the date upon which the measure adding this paragraph becomes effective, the exclusion established by paragraph (1) also applies to a purchase or transfer of real property between grandparents and their grandchild or grandchildren, as defined by the Legislature, that otherwise qualifies under paragraph (1), if all of the parents of that grandchild or those grandchildren, who qualify as the children of the grandparents, are deceased as of the date of the purchase or transfer.
(B) A purchase or transfer of a principal residence shall not be excluded pursuant to subparagraph (A) if the transferee grandchild or grandchildren also received a principal residence, or interest therein, through another purchase or transfer that was excludable pursuant to paragraph (1). The full cash value of any real property, other than a principal residence, that was transferred to the grandchild or grandchildren pursuant to a purchase or transfer that was excludable pursuant to paragraph (1), and the full cash value of a principal residence that fails to qualify for exclusion as a result of the preceding sentence, shall be included in applying, for purposes of subparagraph (A), the one million dollar ($1,000,000) full cash value limit specified in paragraph (1).

LOL... Well you certainly have a point there Matt. They struck out "of" and replaced it with "in", and the text does seem to indicate an "amendment". So we do appear, on face value, to have an "amendment" to the constitution that is striking out or repealing an existing provision or part of an existing provision.

I would still query whether:

1) The word "amendment" is being used universally to mean the same thing across the board. In other words, just because the courts define "amendment" in a certain way in one context does not automatically mean that a legislature will not use the same word in a looser, more general context.

2) There is no indication in the link if this measure was passed by ballot initiative or by 2/3 vote in the legislature. Even if the former is the case, given that the modification in the language is trivial, it is unlikely that anyone bothered to challenge it before the courts, so the courts would never have even had the opportunity to consider if it was technically a legal "amendment" and therefore it may have passed even if it had been illegal in the technical sense.

3) My final point brings me back to the definition of "revision" versus "amendment". One of the key legal arguments posed by the anti-Prop 8 people was that Prop 8 was, by definition a "revision" because it created a direct conflict in the constitution with the existing equal protection section. (That was what I gathered, in any event). This suggests to me that unlike a trivial change in language (like the one you cited) an actual repealment of a substantive provision would almost certainly be deemed to be a "revision" by the court.

In short, while I appreciate your point and the link you provided, I am still far from convinced that it will be so easy to reverse Prop 8 as many seem to think (or hope).

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flydye45
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quote:
Originally posted by Pyrtolin:
As a note on the overall issue- the ACLU is weighing in on the side of legislative, not judicial action:

http://www.aclu.org/lgbt/relationships/39672res20090527.html#attach

As well they should. I applaude that choice. That is where all this nonsense should have been resolved in the first place.

And just because Prop 8 passed, I am not satisfied. It still seems of questionable legality for them to have decided the case.

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scifibum
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quote:
3) My final point brings me back to the definition of "revision" versus "amendment". One of the key legal arguments posed by the anti-Prop 8 people was that Prop 8 was, by definition a "revision" because it created a direct conflict in the constitution with the existing equal protection section. (That was what I gathered, in any event). This suggests to me that unlike a trivial change in language (like the one you cited) an actual repealment of a substantive provision would almost certainly be deemed to be a "revision" by the court.
I think this is pretty weak. The contradiction you are referring to was between a remaining portion of the constitution and the new language added by prop 8. If prop 8.1 says "article 1 section 7.5 is hereby removed" and it passes, then there's no contradiction between remaining parts of the text.

Since you haven't really made a founded argument for why removing the text would constitute a revision according to the legal standards that the California authorities are likely to use, I'm not sure why you seem convinced by your own musings. The most clear cut test there is seems to be "sweeping change" and removing one sentence is hardly more sweeping than the act of adding that one sentence was.

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Pyrtolin
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quote:
Originally posted by jasonr:
3) My final point brings me back to the definition of "revision" versus "amendment". One of the key legal arguments posed by the anti-Prop 8 people was that Prop 8 was, by definition a "revision" because it created a direct conflict in the constitution with the existing equal protection section. (That was what I gathered, in any event). This suggests to me that unlike a trivial change in language (like the one you cited) an actual repealment of a substantive provision would almost certainly be deemed to be a "revision" by the court.

An argument which was rejected, mind you. (And would likely have had no legs at all if they'd have been more explicit about revising the wording of the equal rights clause while they were at it).

As was pointed out earlier, revision is theoretically supposed to me something that affects multiple parts of the Constitution or its fundamental structure. In practice it means whatever the courts decide they want it to mean and they have a long history of being reluctant to apply it, even to fairly significant changes.

Short of a significant change in attitude, it's not likely that they'll consider modifications to this one bit of phrasing a revision.

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PSRT
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quote:
As well they should. I applaude that choice. That is where all this nonsense should have been resolved in the first place.
Aside from the fact that there are constitutional issues in play with gay marriage, and the courts are where constitutional issues are decided, waiting for a legislative solution meant women had to wait about 70 years after the suffrage movement started before it bore fruit. I'm not sure why people should have to wait for injustices to be resolved until a majority of people are comfortable stopping an injustice? Or Anti-Miscegenation. Decades after that case was decided, in some states majorities still felt that blacks shouldn't be able to marry whites.

quote:
And just because Prop 8 passed, I am not satisfied. It still seems of questionable legality for them to have decided the case.
Its not questionable under the US system of law. Maybe under other systems.

[ May 27, 2009, 05:27 PM: Message edited by: PSRT ]

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Gaoics79
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quote:
Since you haven't really made a founded argument for why removing the text would constitute a revision according to the legal standards that the California authorities are likely to use
I've made an argument based on my layperson's understanding of the law in California. If you have a better understanding, based on substantive legal principles, please do share. Thus far, no one has presented any compelling evidence to suggest that my assumptions about the law are wrong. I stand to be corrected.

quote:
I'm not sure why you seem convinced by your own musings. The most clear cut test there is seems to be "sweeping change" and removing one sentence is hardly more sweeping than the act of adding that one sentence was.
Respectfully, this last point you make suggests that you're not understanding the issue.

Prop 8 was not a "sweeping change" because there was nothing to change in the first place; the original text of the constitution never mentioned same sex marriage, for or against. At best, Prop 8 was an elaboration or explanation of how the constitution should be interpreted.

However, now that Prop 8 is law, the new text of the constitution makes a specific reference to same sex marriage, and goes out of its way to ban it. Repealing Prop 8 would not be a mere elaboration or explanation of some unstated right, but a 180 degree turn from what is explicitly stated in the constitution.

Furthermore, no one thus far has adequately addressed the issue of whether or not repealment of an existing substantive part of the constitution is permitted by ballot measure, which strikes me as being an entirely different (but related) legal issue. I'm not saying that I know the answer to this question, but certainly it's a crucial point.

quote:
An argument which was rejected, mind you. (And would likely have had no legs at all if they'd have been more explicit about revising the wording of the equal rights clause while they were at it).
It was rejected in terms of the decision to add Proposition 8 to a constitution that said nothing about same sex marriage, for or against. Please see my comments above; now that the constitution does say something about the subject, it's a whole new ballgame.
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scifibum
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quote:
Respectfully, this last point you make suggests that you're not understanding the issue.

Prop 8 was not a "sweeping change" because there was nothing to change in the first place; the original text of the constitution never mentioned same sex marriage, for or against. At best, Prop 8 was an elaboration or explanation of how the constitution should be interpreted.

However, now that Prop 8 is law, the new text of the constitution makes a specific reference to same sex marriage, and goes out of its way to ban it. Repealing Prop 8 would not be a mere elaboration or explanation of some unstated right, but a 180 degree turn from what is explicitly stated in the constitution.

Furthermore, no one thus far has adequately addressed the issue of whether or not repealment of an existing substantive part of the constitution is permitted by ballot measure, which strikes me as being an entirely different (but related) legal issue. I'm not saying that I know the answer to this question, but certainly it's a crucial point.

I think it's a bogus distinction, but I do understand the way you are framing the issue. I mean no disrespect, if you're a layman than I'm a laylaylayman when it comes to this sort of thing.
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Pyrtolin
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quote:
Originally posted by jasonr:
It was rejected in terms of the decision to add Proposition 8 to a constitution that said nothing about same sex marriage, for or against. Please see my comments above; now that the constitution does say something about the subject, it's a whole new ballgame.

No it's not. It's still a single point- changing it would make no fundamental changes to the constitution (or the interpretation thereof) or to the structure of the state government itself, just to on small provision. Just the fact that it's altering something already written is not sufficient (nor is it even necessary) to qualify the change as sweeping. It doesn't affect how the law is read from the constitution as a whole it does not change the meaning or execution of an element but itself.

Bigger changes- like ones changing budget limits and imposing term limits on the legislature have been counted as amendments. A small, focused change would easily fall short of the scope needed for the matter to be considered a revision.

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Gaoics79
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quote:
No it's not. It's still a single point- changing it would make no fundamental changes to the constitution (or the interpretation thereof) or to the structure of the state government itself, just to on small provision. Just the fact that it's altering something already written is not sufficient (nor is it even necessary) to qualify the change as sweeping. It doesn't affect how the law is read from the constitution as a whole it does not change the meaning or execution of an element but itself.

Bigger changes- like ones changing budget limits and imposing term limits on the legislature have been counted as amendments. A small, focused change would easily fall short of the scope needed for the matter to be considered a revision.

Well ok. But are you just saying that, or do you have a case in support of this assertion?
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Pyrtolin
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quote:
Originally posted by jasonr:
quote:
No it's not. It's still a single point- changing it would make no fundamental changes to the constitution (or the interpretation thereof) or to the structure of the state government itself, just to on small provision. Just the fact that it's altering something already written is not sufficient (nor is it even necessary) to qualify the change as sweeping. It doesn't affect how the law is read from the constitution as a whole it does not change the meaning or execution of an element but itself.

Bigger changes- like ones changing budget limits and imposing term limits on the legislature have been counted as amendments. A small, focused change would easily fall short of the scope needed for the matter to be considered a revision.

Well ok. But are you just saying that, or do you have a case in support of this assertion?
I cited one- the amendment that imposed term limits and reduced the legislative budget.

Do you have any cases that support your assertions?

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Gaoics79
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quote:
I cited one- the amendment that imposed term limits and reduced the legislative budget
Could you please provide a link to the provision you are citing?
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Gaoics79
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quote:
Do you have any cases that support your assertions?
No I don't. I am not pretending to be an expert here, and I'm not saying that my speculation on the law is definitely correct. I'm really waiting for someone knowledgeable to come along and give us the inside scoop and explain why I'm wrong or why I'm right. No one has done that thus far.
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PSRT
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I don't think the California SC knows whether you are wrong or right. I don't think they've decided enough cases on point for there to be enough precedent for us to determine either way.

[ May 27, 2009, 07:13 PM: Message edited by: PSRT ]

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Gaoics79
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quote:
I don't think the California SC knows whether you are wrong or right. I don't think they've decided enough cases on point for there to be enough precedent for us to determine either way.
Well someone clearly thinks they have a second shot at this. A couple of lawyers are taking it to Federal Court now.
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jimskater
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I saw that, jason--and I don't trust it. One of the two is a Karl Rove operative from way back, which strikes me as letting the fox in among the chickens. Call me paranoid, but as a protagonist what better way to ensure the failure of your opponent that to have one of "your own" on the inside?

On the amendment / revision issue -- the court's decision addresses Prop 8 as an amendment, which can be repealed by the same process it was put in. 's why there is already an effort in place to get the repeal on the 2010 ballot--the first scheduled election after the decision deadline for the Prop 8 cases.

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hobsen
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Actually a federal challenge was filed shortly after Proposition 8 passed. This recent one has received more publicity because the lawyers are well known, especially Olson, and because of the drama of former opponents working together. Most likely several such cases will be consolidated in the end. These federal challenges under the U.S. Constitution of course have nothing to do with the challenges under the California Constitution which were just decided. And I doubt they have much chance, whether argued well or badly; but surprises happen sometimes.

Lots of people are arguing that cases should not be brought in federal court yet, or that repealing Proposition 8 could be done better in 2012. These arguments may be correct, but I think there is no chance everyone will agree on a unified strategy. Everything will be tried, whether it is sensible or not. And that may not be a bad thing, as keeping the pot boiling in California will take attention away from all the other states thinking of legalizing SSM or introducing civil unions. Opponents have limited time and money, and trying to defend Proposition 8 in California could burn up a lot of both, without much weakening the efforts to legalize SSM in other states. The best figures I found for the Proposition 8 campaign, from mandatory reports filed with the State of California, are that it cost 55 million and resulted in a very narrow victory. Trying to keep this change in the California Constitution is not a way I should choose to spend my own money. Rallan is right that this will continue until one side gets tired of competing, and I do not think people like Jimskater will ever get tired.

[ May 28, 2009, 02:19 AM: Message edited by: hobsen ]

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Gaoics79
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quote:
On the amendment / revision issue -- the court's decision addresses Prop 8 as an amendment, which can be repealed by the same process it was put in. 's why there is already an effort in place to get the repeal on the 2010 ballot--the first scheduled election after the decision deadline for the Prop 8 cases.
So you can confirm that amendments can be repealed by ballot measure?
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jimskater
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Yes, I can. In fact there are already two initiative amendments challenging Prop 8 in the signature gathering stage:

quote:
1356. (09-0003)

Substitutes Domestic Partnership for Marriage in California Law. Initiative Constitutional Amendment and Statute.
Summary Date: 03/09/09 Circulation Deadline: 08/06/09 Signatures Required: 694,354

Proponents: Kaelan Housewright and Ali Shams (818) 472-0982

Replaces the term "marriage" with the term "domestic partnership" throughout California law, but preserves the rights provided in marriage. Applies equally to all couples, regardless of sexual orientation. Repeals the provision in California's Constitution that states only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: This measure would have an unknown fiscal effect on state and local governments. (09-0003.) (Full Text)

1357. (09-0002, Amdt. #1S)

Reinstates Right of Same-Sex Couples to Marry. Initiative Constitutional Amendment.
Summary Date: 03/19/09 Circulation Deadline: 08/17/09 Signatures Required: 694,354

Proponent: Charles Lowe (800) 778-2998

Repeals the current provision in California's Constitution that states only marriage between a man and a woman is valid or recognized in California. Provides that the initiative is not intended, and shall not be interpreted, to modify or change the curriculum in any school. Clarifies that the initiative is not intended, and shall not be interpreted, to mandate or require clergy of any church to perform a service or duty inconsistent with his or her faith. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: Over the long run, this measure would likely have little fiscal impact on state and local governments. (09-0002.) (Full Text)


Taken from here: CA Secy of State Initiative Status
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jimskater
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I don't think the first one has a chance in hell of passing. I like the 2nd one if only because it protects the religious aspect of marriage, while carving a more distinct definition of civil marriage. Both sides go forward without either losing the term "marriage".

eta:

Even if the religious protections are redundant.

[ May 28, 2009, 10:35 AM: Message edited by: jimskater ]

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Gaoics79
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quote:
Yes, I can. In fact there are already two initiative amendments challenging Prop 8 in the signature gathering stage:
Well that doesn't exactly confirm anything [Smile]

I hate to be like this and all, but so far I still haven't seen anything remotely conclusive on this point. To be clear Jim, do you know this for a fact, or are you just assuming?

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jimskater
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From the CA Constitution, Article 18:

quote:
CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION


SEC. 1. The Legislature by rollcall vote entered in the journal,two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately.

CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION


SEC. 2. The Legislature by rollcall vote entered in the journal,two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution. If the majority vote yes on that question, within 6 months the Legislature shall provide for the convention. Delegates to a constitutional convention shall be voters elected from
districts as nearly equal in population as may be practicable.


CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION

SEC. 3. The electors may amend the Constitution by initiative.

CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION

SEC. 4. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote
shall prevail.

Taken from here.

An amendment in CA is not specifically defined as being additive. That's as strong as I can get in support. On the other hand: one route to removing Prop 8 (Art 1, Sec. 7.5) would be to introduce sec. 7.6, phrased as "Art 1, Sec 7.5 is hereby repealed." This has worked before, on the federal level.

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Jordan
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quote:
Provides that the initiative is not intended, and shall not be interpreted, to modify or change the curriculum in any school. Clarifies that the initiative is not intended, and shall not be interpreted, to mandate or require clergy of any church to perform a service or duty inconsistent with his or her faith.
Speaking in terms of public opinion, that's a very smart move, and I hope it will take a lot of wind out of the sails of those who tried to garner opposition to gay marriage on these grounds. (See the commercial on the front page, for example.)
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Ciasiab
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jasonr:

From here.

quote:
.” The opinion explains that the amendment/revision dichotomy dates back to the original 1849 California Constitution, long before the adoption of the initiative process in 1911; the origin and history of the distinction “indicates that the category of constitutional revision referred to the kind of wholesale or fundamental alteration of the constitutional structure that appropriately could be undertaken only by a constitutional convention, in contrast to the category of constitutional amendments which included any and all of the more discrete changes to the Constitution that thereafter might be proposed.”
quote:
in determining whether a constitutional change constitutes a revision rather than an amendment, a court must assess “(1) the meaning and scope of the constitutional change at issue, and (2) the effect — both quantitative and qualitative — that the constitutional change will have on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution.”
quote:
Analyzing the scope of Proposition 8, the majority opinion explains that, contrary to petitioners’ assertions, the initiative measure does not “entirely repeal” or “abrogate” the aspect of a same-sex couple’s state constitutional right of privacy and due process discussed in the majority opinion in the Marriage Cases — namely, the constitutional right to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” — nor does it “fundamentally alter” the substance of state constitutional equal protection principles recognized in that opinion.

Instead, it carves out a limited exception to these constitutional rights by reserving the official designation of the term “marriage” for the union of opposite-sex couples, but leaves undisturbed all of the other aspects of a same-sex couple’s constitutional right to establish an officially recognized and protected family relationship and to the equal protection of the laws.

Seems like since the change was semantics only, it was deemed an ammendment. Likewise, I would expect that changing the word marriage to include same sex couples would also be deemed semantics only. No where does it say that removing a portion of the text in the constitution automatically qualifies as a revision.

eta:

quote:
Reiterating the standard that has been applied in all of the numerous California cases decided in recent decades, the opinion states that to constitute a qualitative revision “a constitutional measure must make a far reaching change in the fundamental governmental structure or the foundational power of its branches as set forth in the Constitution.”


[ May 28, 2009, 01:59 PM: Message edited by: Ciasiab ]

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Gaoics79
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Hmm, thanks, very informative.
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jimskater
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quote:
Originally posted by jasonr:
quote:
Yes, I can. In fact there are already two initiative amendments challenging Prop 8 in the signature gathering stage:
Well that doesn't exactly confirm anything [Smile]

I hate to be like this and all, but so far I still haven't seen anything remotely conclusive on this point. To be clear Jim, do you know this for a fact, or are you just assuming?

Adding after some thought:

In CA, we can amend/revise the Constitution down to the terms "everybody leave everyone else alone" if there are enough votes. That's the case with the federal Constitution as well--even as a 2/3 or 3/4 super majority is a touch more difficult to reach than the 50% + 1 vote majority threshold in CA. Heinlein, among others, called this situation voting in "bread and circuses."

What's interesting about Article 18 is what isn't there---there are no definitions of amendments or revisions as strictly additive, subtractive or permanent. If I'm understanding correctly, amendments and revisions are merely changes. Any portion of the CA Constitution is thus subject to change, which includes repealing recently added portions of the constitution.

Changes are noted on a sliding scale: when the changes become large enough, a Constitutional Convention is required. What are the tipping points between amendment/revision/convention? It depends and seems to come down to the old judge's saw about obscenity, "I know it when I see it." An amendment can be placed on the ballot via the legislature or the electorate, a revision must come out of the legislature, which may or may not lead to a constitutional convention. There's a gray area on the border between amendment/revision which has not been clarified by the courts, it was this loophole that the Prop 8 opponents attempted to squeeze through. The court held that Prop 8 wasn't a revision---and in the process may have clarified the division between amending and revising the CA Constitution.

I look forward to the scholars amongst us picking apart the above. If anyone else has a clearer take on Art. 18, please correct me where I'm wrong.

---
edited to clarify the majority threshold in the first paragraph and for italics.

[ May 28, 2009, 04:09 PM: Message edited by: jimskater ]

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hobsen
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While this is a minor point, Jim, there is no requirement ever to call a constitutional convention in California. Back in the 1960s, the California Constitution had grown to something like 80,000 words through the continual addition of text by amendments. So a committee rewrote the whole thing, shortening it to something like 25,000 words. That was split into convenient chunks of 5000 or so words, which were in turn passed by the legislature and submitted to the voters as legislative constitutional amendments. So the intent was to replace the entire California Constitution at a single election with no need for any constitutional convention.

The legislature in California has always been extremely reluctant to call a constitutional convention because it would lose control of what changes were made; and it would probably repeal the initiative process if the voters would allow that, arguing that initiatives placed on the ballot by petition are too numerous and generally bad law. But the voters like to keep final control over what the legislature does, as in the case of Proposition 8, which legislators opposed by a wide margin but which a slim majority of California voters favored.

[ May 30, 2009, 12:26 PM: Message edited by: hobsen ]

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TommySama
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http://blog.donmichael.net/glbt/a-loving-decision

Excellent blog about the correlations between anti-SSM and anti-miscegenation legal arguments.

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