[Marxism] # Re: Beyond (Straight and Gay) Marriage

[Ralph Johansen]

"There's a common principle in constitutional jurisprudence called 
"harmonization," which says that no part of a constitution can conflict 
with any other....while Proposition 8 squarely addressed the marriage 
half of the Supreme Court's ruling, it didn't address the 
equal-protection half. In other words, the couple argues that the state 
constitution is now in conflict with itself -- part of it says that 
same-sex marriage is flatly illegal [In re Marriages], and the Supreme 
Court has interpreted another part to say that a ban on same-sex 
marriage violates the state's equal protection clause."


      Gay-Marriage Ban Sets Up Host of Battles
      <http://www.truthout.org/110708D>

Friday 07 November 2008

by: Ashby Jones, The Wall Street Journal

photo
California's passage of Proposition 8, which bans the marriage of 
same-sex couples, has set off a series of protests and lawsuits 
challenging the Proposition. (Photo: Robert Gauthier / Los Angeles Times)

    */California's Proposition 8 is challenged in state court; what 
happens to previously wed couples?/*

    California voters on Tuesday approved Proposition 8, which adds to 
the state constitution the following sentence: "only marriage between a 
man and a woman is valid or recognized in California."

    While the wording is simple, the situation quickly became 
complicated. For example, what happens to those same-sex couples who 
married before the ruling? Legal challenges filed Wednesday raised other 
questions: Was the referendum process itself lawful? Does the new 
language conflict with other parts of the state constitution? 
Separately, should Proposition 8 opponents have filed challenges saying 
the proposition violated the U.S. Constitution?

    David Cruz, a constitutional-law expert at the University of 
Southern California, has some answers.

    *WSJ:* Please explain the grounds upon which Proposition 8 is being 
challenged in court.

    *Mr. Cruz:* The lawsuits challenge the procedure by which the 
referendum was passed. Under California law, there are two categories of 
changes that can be made to the state constitution: amendments and 
revisions. Amendments are more minor changes; revisions are larger in 
effect. This is important because each has its own process for taking 
effect, essentially different ways they go before the voters. An 
amendment can go in the form of a ballot initiative, which requires a 
certain number of signatures to make its way on. Constitutional 
revisions, however, have to have a two-thirds blessing from each house 
of the state legislature to make the ballot.

    Now, the problem, at least from the point of view of Proposition 8 
supporters, is that the legislature had previously indicated a 
willingness to support same-sex marriage. So the proposition's 
supporters were unwilling to treat this bill as a revision and send it 
to the legislature, opting instead to treat it as an amendment. So the 
Proposition 8 opponents are arguing that this change actually 
constitutes a revision, not an amendment, and therefore needed to go 
through the legislature.

    *WSJ:* Were any other issues raised in the suits?

    *Mr. Cruz:* Yes. A same-sex couple that was married before the 
election made another argument. Remember, the California Supreme Court 
in May ruled that bans on same-sex marriage were not allowed under the 
state's constitution. (That ruling prompted Proposition 8.) Now, in that 
ruling, the Supreme Court essentially said two things: that same-sex 
couples had a fundamental right to marry and that the underlying law 
violated the state's equal protection clause.

    The suit filed Wednesday argues that while Proposition 8 squarely 
addressed the marriage half of the Supreme Court's ruling, it didn't 
address the equal-protection half. In other words, the couple argues 
that the state constitution is now in conflict with itself -- part of it 
says that same-sex marriage is flatly illegal, and the Supreme Court has 
interpreted another part to say that a ban on same-sex marriage violates 
the state's equal protection clause.

    *WSJ:* And a constitution can't be in conflict with itself?

    *Mr. Cruz:* Right. There's a common principle in constitutional 
jurisprudence called "harmonization," which says that no part of a 
constitution can conflict with any other.

    *WSJ:* Provided that the state Supreme Court rejects all these 
arguments and the constitutional amendment is allowed, you still have 
this issue as to what happens to the marriages that took place before 
Proposition 8 was passed, right?

    *Mr. Cruz:* On that question the state Supreme Court would likely 
look at what the intent of the voters was in passing the law.

    *WSJ:* How would the court determine that? By asking voters?

    *Mr. Cruz:* It would likely look at the language of the proposition 
itself, in addition to the title, official ballot literature, and to the 
advertisements that were run during the campaign. Supporters of 
Proposition 8 point to language on the ballot that explained that voters 
would be defining marriage as between a man and woman, "regardless of 
when or where performed." That seems to argue for invalidating the 
earlier marriages. But the attorney general, Jerry Brown, will likely 
raise the official title of the proposition, which mentions the 
elimination of the "right of same-sex couples to marry." Here, there's 
no mention of the earlier marriages, and it seems to indicate that it's 
the right to get married going forward that's being taken away.