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Proposition 8 November 22, 2008

Posted by joshuachayne in Culture, politics.
Tags: , , , , , , ,

This election saw the historical triump of Barack Obama becoming the first African American President.  Yet, the election also saw a setback in gay rights with anti-gay ballot initiatives being passed in California, Florida, Arizona, and Arkansas.

Florida banned gay marriage and domestic partnerships.  Arkansas banned gay adoption and foster care by banning all unmarried couples (straight or gay) from adopting or taking foster children.  If this law is deemed retroactive, then what happens to those who already adopted or taken foster children?  I have heard that some gays are afraid that their children will be taken away.  The Arkansas government and children services groups were adamantly against banning gays from adopting or taking foster children but sadly many of the people of Arkansas still hold irrational fears about gays.

In California, Proposition 8 was passed by a 4% margin and the pre-existing right of gay marriage was taken away.  The CA Supreme Court had ruled that gay marriage was both a constitutional right and a civil right based on the Equal Rights and Protections Clause.  They had also declared that gays were a minority on the same level as other ethnic, religious, and gender minority groups.  During that time 18,000 gay couples were married.  If Prop 8 is retroactive then these 18,000 will lose their marriages.

Should civil rights be put up to a popular vote?  Conservatives complain about “activist judges” yet the Court’s gave women and African Americans their equal rights and overturned the ban on inter-racial marriage against the will of the majority of Americans at those times.

It is part of the Court’s role and a part of the Constitution (see 9th and 14th Amendments) to protect vulnerable minority’s against the tyranny of the majority.

Prop 8 has re-ignited the Gay Rights movement.  On Saturday, Nov. 15th more than 100,000 people protested for marriage equality and gay rights across this Nation.

This new movement is grassroots and netroots and you can keep up with future events at Join the Impact.

The CA Supreme Court will hear the legal challenges against Prop 8.

The challenges rest on whether or not Prop 8 revises rather than amends the Constitution because it contradicts the Equal Rights and Protections Clause.  And if it is a revision then it would be an illegal initiative because revisions require passing through 2/3rds of the legislature before it can be put to a popular vote.

This argument is a Hail Mary pass.  Within the last 100 years the CA Supreme Court has only seen 9 cases where they argued an amendment was a revision (sweeping structural change) and in only 3 of those cases did they decide that the amendment was actually a revision.

Even if the CA Supreme Court upholds Prop 8, gays and their straight allies can introduce another amendment next election to repeal Prop 8.



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