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April 28, 2009

New ACS issue brief examines Prop 8, judicial interpretation of rights, and separation of powers

In a new issue brief distributed by the American Constitution Society, attorneys Gonzalo C. Martinez and Troy M. Yoshino address arguments that California's Proposition 8 is invalid as an improper constitutional revision of the state constitution that could not be accomplished through the initiative process, which only permits constitutional amendments.  The issue brief distills arguments that were presented in the amicus brief filed in the Proposition 8 litigation by the San Francisco La Raza Lawyers Association, for which the authors served as counsel.

The authors agree that Proposition 8 should be struck down if the California Supreme Court finds it to have been an unconstitutional revision, but they focus on presenting an argument in the alternative: 

[T]o the extent the rights to liberty, privacy, due process and equal protection have not themselves been changed, then the pre-existing interpretation of those rights in Marriage Cases must control-and the attempt to mandate a change in the California Supreme Court's interpretation of pre-existing rights violates separation of powers principles. Thus, even if Proposition 8 is construed as a permissible amendment (as opposed to a revision), it would necessarily violate separation of powers principles because it purports to dictate a specific interpretation of certain other-indisputably unchanged-constitutional provisions.

The authors explain that Prop 8's attempt to change the Court's reasoning and interpretation of fundamental rights, "without revising the bases for the Court's reasoning, violates separation of powers principles inherent in the California Constitution and renders Proposition 8 unconstitutional."  They conclude by advising, "[t]his attempt to control judicial interpretive power should also underscore why those who care about separation of powers and the integrity of the three branches of government should be profoundly troubled by Proposition 8, regardless of their position on same-sex marriage."


April 28, 2009 | Permalink


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