Wednesday, November 5, 2008
Our pre-election discussion of state constitutional law provisions here is in need of a post-election update.
The National Conference of Legislatures ballot update site here remains one of the better sites for full information on the state constitutional provisions and includes the post-election results. A brief report with a survey of highlights from the NY Times is available here.
The sexuality initiatives all passed. In Arizona, Proposition 102 will amend the state constitution to provide that only a union of one man and one woman shall be valid or recognized as a marriage in this state. In Florida, Amendment 2 will also amend the state constitution in a similar manner with the additional provision that no other legal union will be treated similar to marriage, thus prohibiting civil unions or domestic partnerships.
In California, Proposition 8 was hard fought and may not be over yet. California's Proposition 8 would change the California Constitution to eliminate the right of same-sex marriage as found by the California Supreme Court in In Re Marriage Cases, 183 P.3d 384 (Cal. 2008), by defining marriage as limited to one man and one woman. The California Secretary of State reports the Proposition passed.
However, the National Center for Lesbian Rights and other organizations have filed suit. The press release is here and a pdf of the petition is here. Basically, the theoretical argument is a representation-reinforcement one: the role of the court is to protect minorities who are subject to discrimination by majorities:
“A major purpose of the constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the legislature can initiate such revisions to the constitution,” added Elizabeth Gill, a staff attorney with the ACLU of Northern California.
In addition to theory, there is precedent:
This would not be the first time the court has struck down an improper voter initiative. In 1990, the court stuck down an initiative that would have added a provision to the California Constitution stating that the “Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.” That measure was invalid because it improperly attempted to strip California’s courts of their role as independent interpreters of the state’s constitution.
The case is Raven v. Deukmejian, 52 Cal.3d 336, 276 Cal.Rptr. 326 (1990), in which the California Supreme Court held Proposition 115 § 3 - - - which provided that certain enumerated criminal defendants' rights would be construed consistently with the United States Constitution and that criminal and juvenile defendants would not be afforded greater rights than that afforded by the federal Constitution - - - was impermissible under the initiative process.
Litigation to watch! And an interesting classroom discussion.