A friend of mine posted this in his Facebook and I thought I would share. It is from the original CA Supreme Court decision from May 08 that struck down the same-sex marriage ban. This will ultimately be Prop 8’s undoing. Pay particular attention to the last two paragraphs.
“In recognizing, however, that the right to marry is a basic, constitutionally protected civil right — “a fundamental right of free men [and women]”…–….this right embodies fundamental interests of an individual that are protected from abrogation or elimination by the state. (p. 61-2)”
“None of the foregoing decisions — in emphasizing the importance of undertaking a ” ‘careful description’ of the asserted fundamental liberty interest…” — suggests, however, that it is appropriate to define a fundamental constitutional right or interest in so narrow a fashion that the basic protections afforded by the right are withheld from a class of persons — composed of individuals sharing a personal characteristic such as a particular sexual orientation — who historically have been denied the benefit of such rights” (p. 71)
“…by reserving the historical and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership — pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry” (p. 81).
“In sum, we conclude that statutes imposing differential treatment on the basis of sexual orientation should be viewed as constitutionally suspect of the California Constitution’s equal protection clause” (p. 100).
“On the contrary, under “the constitutional theory of ‘checks and balances’ that the separation-of-powers doctrine is intended to serve”…a court has an obligation to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review” (p. 109).
“The question of access to civil marriage by same-sex couples ‘is not a matter of social policy but of constitutional interpretation.’ It is a question for this Court to decide” (p. 110)
Pay special attention to these:
“Although California decisions consistently and vigorously have safeguarded the right of voters to exercise the authority afforded by the initiative process…, our past cases at the same time uniformly establish that initiative measures adopted by the electorate are subject to the same constitutional limitations that apply to statutes adopted by the Legislature, and our courts have not hesitated to invalidate measures enacted through the initiative process when they run afoul of constitutional guarantees provided by either the federal or California Constitution” (p. 112).
“As the United States Supreme Court explained in West Virginia State Board of Education v. Barnette (1943): “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” (p. 113).
This gives me some more hope. That, and the spell I’m working. 😉