Still banging on that key

Bad cat, Jerry Brown.

    This is an excerpt from one of many good mice, Tom Harman's (Republican in CA Senate, and a small mouse among mice) weekly newsletter regarding the current status of the Prop 8 battle to ban gay marriage. 

Update on the Status of Proposition 8

    "Many of you have contacted my office with questions regarding the current status of Proposition 8. Proposition 8, passed by the voters this past November, defines marriage in the California Constitution to be between one man and one woman. Opponents of the initiative immediately challenged its constitutionality. It is awaiting a hearing in the California Supreme Court.

    This will not be the first time this issue has come before our Supreme Court. Just last May, the constitutionality of Proposition 22, an earlier voter-approved same-sex marriage amendment, was challenged in the same manner. Because the Court chose to overturn that proposition, proponents of traditional marriage gathered signatures and had Proposition 8 placed on last November’s ballot.

    In reviewing the measure, the Court is being asked to decide three issues:

-What is the status of the approximately 18,000 same sex marriages granted between May, when Proposition 22 was overturned, and November, when Proposition 8 passed?

-Is Proposition 8 a revision of, or an amendment to, the state’s constitution? California voters may only amend, not revise the state constitution.

-Is Proposition 8 a violation of the separation of powers doctrine? When the people vote by the initiative process they act as legislators, and not as the sovereign, by directly approving a new law and bypassing the legislature.

    To add further to the confusion, last month Attorney General Jerry Brown filed a legal brief claiming the same-sex marriage ban " is itself unconstitutional because it deprives a minority group of a fundamental right." This argument has never been used before and has raised some legal eyebrows. Some are questioning whether it is the Attorney General’s role to take a 

position contrary to the will of the people in a duly held election.

    Opponents of Proposition 8 believe the initiative actually revised the constitution and since, in their opinion, the voters have no legal authority to revise – only to amend –the initiative should be overturned. Proponents of the proposition argue the initiative was nothing more than an amendment and thus perfectly legal. They cite Proposition 13, passed in 1978, as precedent for their position. Prop. 13 drastically changed the fiscal policies of the state and was upheld by the U.S. Court. It has been law for over 30 years. Proponents believe if the same legal arguments are applied, the Court would be hard pressed to find Proposition 8 anything more than an amendment.

    The issues before the Court are highly charged with people on both sides of the debate vocally advocating their position in the media. There has even been talk of a ca

mpaign to recall the justices should the Court once again go against the will of the voters and overturn a ban on same sex marriages. While a judicial recall has yet to be tried in California, state Supreme Court Justices have been defeated in their bids for re-appointment – most famously, Chief Justice Rose Bird in 1986. Though it may not come to such measures, the threat of a recall is very serious.

    No doubt the California Supreme Court has quite a task at hand with this issue of constitutionality. The coming months will unveil many opinions, a very thorough and contemplative reading of the constitution and a raucous public debate."

I know. Tom is the cat and Jerry the mouse. Whatever.