Breaking: California Supreme Court Agrees To Hear Prop 8 Lawsuits

so the next question is,

does the court work on a fairly fixed schedule, and if so, then when at the latest can we look forward to a ruling?

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by: Lurleen @ Wed Nov 19, 2008 at 17:06:59 PM CST

It took them

6 months to decide originally. I don't expect this will be any quicker. So another year before we know.

And, unfortunately (although I do understand it) another year without equality, since they didn't allow marriages to resume in the mean time.

Cause any fool knows, a dog needs a home; a shelter from pigs on the wing

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by: QueerInSoCal @ Wed Nov 19, 2008 at 17:31:48 PM CST

[ Parent ]

HERE is schedule.

Written arguments to be submitted by January 15, 2009. Then hearing could be held as soon as March with a ruling within 90 days following.....

So May 15th again anyone? Shall we start a pool? 

It's the Hammer of JUSTICE,
It's the Bell of FREEDOM,
It's the Song about LOVE between,
my Brothers and my Sisters
...All over this Land.

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by: Orion45 @ Wed Nov 19, 2008 at 17:46:40 PM CST

[ Parent ]

Bookmark this webpage and follow along...

http://www.courtinfo.ca.gov/co...
This is the CA Supreme Court page for Prop 8 lawsuits.

Including the California Council of Churches there are three additional Writ of Mandate lawsuits filed against Prop 8.  
Besides Council of Churches, both the ASIAN PACIFIC AMERICAN LEGAL CENTER, et al* and EQUAL RIGHTS ADVOCATES AND CALIFORNIA WOMEN'S LAW CENTER have also filed.

*et al. = California State Council of NAACP, Equal Justice Society, Mexican American Legal Defense and Educational Fund, and NAACP Legal Defense and Educational Fund.

From the news release, these last three writ of mandates are not part of what the Court decided to hear today.  Can someone in brief tell me what a Writ of Mandate is?

So far Liberty Counsel aka Matt Staver has filed to be the Opposing Intervenor...quel surprise.

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by: Karen in Kalifornia @ Wed Nov 19, 2008 at 19:54:04 PM CST

[ Parent ]

On the "No Gays For A Day" day...

...I think I might take the time to sign up as a volunteer for the NAACP or APALC or MALDEF or whatever has a local office.

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by: M @ Wed Nov 19, 2008 at 22:44:07 PM CST

[ Parent ]

If they are on our side

they can't put a stay on prop 8 without raising accusations of bias. Infuriating, I know, but this is the best way to get it overturned.

I am the lizard queen!

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by: RainbowPhoenix @ Wed Nov 19, 2008 at 17:47:17 PM CST

Yeah, the problem with the court is it's not really

supposed to be on anyone's side. This court (California Supreme Court under Justice George) has been  even-handed and better than many, if not most. One justice has been especially good at ruling under the law, rather than by their personal beliefs, which is just as it should be. (Don't ask, I won't tell, but this is a good court. [see how I worked DADT in there?])

That's why we notice the exceptions to the rule of law, and rulings written because of personal prejudice or hate (U.S. Supreme court Dred Scott, Korematsu, Bush v. Gore) as being exceptions to the rule and exceptionally egregious.

This court, under Justice George, has agreed to look at what they have to consider as a new case. They are to not even consider that Prop 8 overturned their own decision. They can't say, "well, my opinion was right, therefore Prop 8 is wrong." They have to, by the ethics of their profession, and their oath, start from zero. Undoubtedly, one, or both sides will present them with, "this honorable court ruled on this argument, already..." but until one of the lawyers says that, their role in legalizing SSM doesn't count. (Of course, once someone "opens the door" all bets are off.

It's not so much that they have to be above the "accusation of bias", as they have to be unbiased. FWIW, you wouldn't want me as a judge if you were contesting a parking ticket, much less a decision affecting the lives of actual, real families.

Sorry, RainbowPhoenix, I don't mean to rant on you. I just got really p.o.-ed when I read, "If they are on our side..." I can disagree with them, I can hate their ruling on Prop 8 when it comes out, but these people are good, they try hard to follow the ethics of their profession, and if they "rule against us" whatever that means, I am confident that they will have done so because it is the law, and it's the law that needs to be changed.

Remember what FDR said, "I agree with you, I want to do it, now make me do it." Have you written/called a congress-critter today? 8.25, 6.21

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by: Jacques @ Wed Nov 19, 2008 at 19:18:52 PM CST

[ Parent ]

I should have been more clear

I meant if they rule in our favor. The thing is, there will always be some level of bias. It's unavoidable. All they can really do is minimize the bias. I was thinking about how the right loves to throw around the phrase "activist judge", as if every court is out of line if they don't rule the way the bigots want them to. The point I was trying to make originally, is that not staying prop 8 is neccassary to minimize the people who believe the right's claims of "judicial activism."  

I am the lizard queen!

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by: RainbowPhoenix @ Wed Nov 19, 2008 at 19:27:03 PM CST

[ Parent ]

No harm, no foul. there are worse courts in the land

especially after 8 years of Bush appointments. They are the ones we have to fight against, and yes, I chose those words carefully.

The CA Supremes are careful, thoughtful and, well, not so bad.

Remember what FDR said, "I agree with you, I want to do it, now make me do it." Have you written/called a congress-critter today? 8.25, 6.21

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by: Jacques @ Wed Nov 19, 2008 at 21:14:07 PM CST

[ Parent ]

Wish I could say the same

for the courts here in Arizona.

I am the lizard queen!

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by: RainbowPhoenix @ Thu Nov 20, 2008 at 12:30:31 PM CST

[ Parent ]

what is unfortunate,

is that other courts, by their pulled-from-the-ass reasoning, have set up the expectation that courts do indeed tend to rule on lgbt-related matters with their gall bladder and not their legal minds.  i trust the california supreme court more than most to be impartial and do their jobs, but i'm sad to say that the supreme courts of too many other states have left me with no trust whatsoever in the judicial system of those states.  it is very sad to feel this way.

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by: Lurleen @ Wed Nov 19, 2008 at 19:30:33 PM CST

[ Parent ]

But, is Katmandu...the real SHANGI-LA?

This from 365 News..

(Katmandu) Nepal's highest court has ordered the government to repeal laws against homosexuality and to enact legislation granting full rights to the country's LGBT population, including the right to marry.

It's the Hammer of JUSTICE,
It's the Bell of FREEDOM,
It's the Song about LOVE between,
my Brothers and my Sisters
...All over this Land.

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by: Orion45 @ Wed Nov 19, 2008 at 17:48:53 PM CST

What's with the two justices who didn't sign on?

Interesting diary on the statements from justices Moreno and Kennard at Calitics:

http://www.calitics.com/showDi...

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by: chiefscribe @ Wed Nov 19, 2008 at 18:15:45 PM CST

Wow, glad I went to the link....

Moreno signed the order but said he thought there should be a stay of Prop 8!!!! Wow, this is from one of the 3 Supreme Court Judges who dissented on the marriage equality ruling...very good omen for me at the moment.

As I predicted it would do, the Court denied the Petitioners' motion to stay the enforcement of Proposition 8 pending the outcome of the case.  An interesting side note, however, is that Justice Moreno joined the Order except that he would have granted the motion for stay.  This is an encouraging sign that Justice Moreno believes that there is a reasonable likelihood that Prop 8 will be declared invalid.  Way to go Justice Moreno!

And, I can't figure out the Kennard thing either since she was the justice who during the televised aural arguments for re Marriages case looked like she was going to jump out of her seat because she could hardly contain herself from screaming "Let them marry".

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by: Karen in Kalifornia @ Wed Nov 19, 2008 at 21:34:17 PM CST

[ Parent ]

A reason to hope

I have read that the prop 8 lawsuits are more likely than not to prevail, based on their separate arguments. This is the same Supreme Court that struck down Prop 22, which is identical to the wording of Prop 8. They said in their previous ruling that equal is equal, including marriage, and that anything that treats one group differently than another before the law is unconstitutional. Nothing has happened since then to change their minds, as far as I can see. There's also the procedural question. Truly prop 8 is a huge change to the constitution, and as such can only be viewed as overreaching the intention of the ballot initiative process according to the CA constitution. Perhaps I'm too optimistic, but I really think we have cause to hope for a favorable outcome.
AS for religious conservatives' assertion that somehow our outrage at their religious meddling in civil rights law is unfair, that they're just exerting their right to free speech, that's baloney. Free speech doesn't strip away civil rights. Religious sentiment doesn't trump individual rights. That's why they keep losing in court. Because the court doesn't recognize the legal value of religious doctrine, or historical prejudice, etc. Anybody who is offended by marriage for gays and lesbians is free to ignore those marriages in every way. The law will never force them to acknowledge, honor, or perform them in the conduct of their religious observances. But if they get to inflict their religious laws onto the civil marriage code, then nobody is free to ignore them, if they are of a differing religious opinion. That is not freedom of religion. That's religious tyranny.
James Madison, the principal author of the Constitution, said:
"During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity; in both, superstition, bigotry and persecution.
What influence, in fact, have ecclesiastical establishments had on society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the civil authority; on many instances they have been seen upholding the thrones of political tyranny; in no instance have they been the guardians of the liberties of the people.  Rulers who wish to subvert the public liberty may have found an established clergy convenient auxiliaries. A just government, instituted to secure and perpetuate it, needs them not."

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by: pauliji @ Wed Nov 19, 2008 at 18:29:18 PM CST

Just got this comment

from over at my blog where I cross-posted:

Homosexuals want to be considered as having normal behavior by everyone through law.
There is a difference be behavior choices and ones color of skin.  Color of skin is not a choice but behavior is a choice.
It is known as a fact that homosexuals do want children in school to be taught that their behavior is a normal behavior.
Look at Rainbow ciriculum in CA and then a father getting arrested in MA after his 6 year old came home from school with a book that had pictures of homosexual partners and children as families.  All he requested was that parents be informed and given a choice on whether their children should learn of such behavior in school.
If that is not forcing life style behavior choices on others than what is?
Homosexual behavior is not normal. Never has been and never will be. It doesn't matter what kind of wrapping it is given.  It has nothing to do with discrimination against a persons race and therefore should not be included as such and to do with civil rights.
Also otherwise everyone has the rights already to live with whoever they want and to include whoever they want on their insurance policies, wills, and power of attorney forms, etc, etc, etc.
This is not a civil rights issue.  It is a behavior issue.
Forcing everyone to accept something that is abnormal behavior to not think anything about it is what is wrong.

We have a long way to go- but already knew that one, huh? ;)

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by: Louise @ Wed Nov 19, 2008 at 19:13:11 PM CST

I wonder what that person would say about

"acting black".  after all, that's behavior, not immutable.  should all black persons act white, or vice versa?  just curious.  Louise, i do hope you'll query them back and get an answer.

i had the good fortune to be able to remind some college students this week just how silly is this fear of "gay indoctrination" by the mere mention of the existence of gays at school.  i reminded them that i had been raised by straight parents to be straight and plan my life according to straight expectations and had NEVER been taught a thing about gays at school.  yet here i am, i lesbian.  so how precisely does this indoctrination thing work again?

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by: Lurleen @ Wed Nov 19, 2008 at 19:24:45 PM CST

[ Parent ]

It came in

as I was relaxing w/my kid; decided to give myself over night to think about how to answer and will do so later. (oh yeah, you KNOW I'm gonna!) :)

But knowing me, I'll be too darned wordy... maybe make it a stand-alone post. Allies need to talk and have these conversations- to use as an opportunity to share personal experiences and maybe influence in a positive manner.

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by: Louise @ Thu Nov 20, 2008 at 04:07:15 AM CST

[ Parent ]

That's not what MLK Jr. said about the human race and skin color...

God is not merely interestd in the freedom of brown men, yellow men, red men and black men. He is interested in the freedom of the whole human race.

-----
~~Autumn~~

As if there were safety in stupidity alone.
--Henry David Thoreau

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by: Autumn Sandeen @ Wed Nov 19, 2008 at 19:28:05 PM CST

[ Parent ]

..and Coretta Scott King...said this.

Homophobia is like racism and anti-Semitism and other forms of bigotry in that it seeks to dehumanize a large group of people, to deny their humanity, their dignity and personhood.
Coretta Scott King

and here is the end of Wayne Besen's good column on STONEWALL 2.0...where it is coming from and why we must succeed.

This is a rare moment where the pain of Proposition 8 meets the possibility represented by Barack Obama. A great many people can now see that passion can lead to real progress - and they demand a role in creating change.

Lastly, the rules of the Mormon, Catholic and Evangelical churches are now enshrined into civil law. We are all unofficial members of these religious institutions and captive to their narrow, sectarian rules. They have effectively hijacked the state and now govern our personal relationships and private lives - whether we like it or not. I think people are finally awakened to this existential threat and willing to fight back.

On Nov. 8, I stood in freezing weather with hundreds of Chicagoans. Last week in Washington, 900 protesters braved a tornado watch to rally in front of the Capitol. Far from a victory, anti-gay forces unleashed a ferocious storm with powerful winds of change that will only end with the sound of wedding bells.

Oh yeah! Ding Dong Ding Dong!

It's the Hammer of JUSTICE,
It's the Bell of FREEDOM,
It's the Song about LOVE between,
my Brothers and my Sisters
...All over this Land.

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by: Orion45 @ Wed Nov 19, 2008 at 19:39:17 PM CST

[ Parent ]

Wow. Link/cite please?

Remember what FDR said, "I agree with you, I want to do it, now make me do it." Have you written/called a congress-critter today? 8.25, 6.21

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by: Jacques @ Wed Nov 19, 2008 at 21:15:53 PM CST

[ Parent ]

Sources for Coretta Scott King quotes:

* BrainyQuote.com

* About.com

* WhatQuote.com

-----
~~Autumn~~

As if there were safety in stupidity alone.
--Henry David Thoreau

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by: Autumn Sandeen @ Thu Nov 20, 2008 at 11:09:22 AM CST

[ Parent ]

Louise...just saw this...

I would help line by line...but JHooper can do it so much better. Sent it to him, if he responds will send it to you. 

It's the Hammer of JUSTICE,
It's the Bell of FREEDOM,
It's the Song about LOVE between,
my Brothers and my Sisters
...All over this Land.

---

by: Orion45 @ Wed Nov 19, 2008 at 19:44:12 PM CST

[ Parent ]

So they want to talk about "behavior choices"

How about religion?

The only one I can think of that you are born into is if your Mother is Jewish.

Otherwise, it a choice.

Dena

Cisgender. Because "Genetic" (or non) is so 2006.

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by: Denabeth @ Wed Nov 19, 2008 at 23:11:58 PM CST

[ Parent ]

hearings NEXT MARCH????

NEXT motherf*cking MARCH????

"race, taste. and History finally overcome....and you ain't there"
by Tony Kushner

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by: peteyPornpig @ Wed Nov 19, 2008 at 19:22:59 PM CST

We need to keep marching til March

and protesting and writing and being heard.

People need to know that we want our rights and our citizenship, and we want them now.

They need to know that we reject the rule of a few large conservative churches over ANY state in the US

The money of the same Mormon church that stood against equality for black Americans cannot buy a state constitution and replace it with the Book of Mormon.

We will continue to rise and will continue to struggle against oppression.

And we will win.

I tell you Chica that no greater abomination exists than women denying their spirit of sisterhood and instead becoming the oppressor. -Rebeca, Universidad Complutense de Madrid

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by: MauraHennessey @ Wed Nov 19, 2008 at 20:00:56 PM CST

[ Parent ]

LDS and Utah we will make your life HELL until at least MARCH

"race, taste. and History finally overcome....and you ain't there"
by Tony Kushner

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by: peteyPornpig @ Wed Nov 19, 2008 at 21:40:36 PM CST

[ Parent ]

Even longer, til they preserve the sanctity of marriage against polygamy

since their law enforcement officials told polygamists that they do not intend to raid them but simply want the child abuse to stop.

Preserve marriage: send the Massachusetts National Guard to Utah to restore order.

I tell you Chica that no greater abomination exists than women denying their spirit of sisterhood and instead becoming the oppressor. -Rebeca, Universidad Complutense de Madrid

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by: MauraHennessey @ Wed Nov 19, 2008 at 21:59:49 PM CST

[ Parent ]

With a few huge marches into D.C.

  I would drive from Colorado to march in Washington D.C.  

 I know there are a few events here in Denver I will be attending as well between now and March.

If I make sense? it was quite by accident.

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by: HappyCat @ Wed Nov 19, 2008 at 21:42:49 PM CST

[ Parent ]

"the arc of the moral universe is long, but it bends toward justice"

The funny thing is that this is lightning-fast compared to most court processes.  

Thank G*D we don't have to wait for this to cycle through the lower courts again.  

Maybe we'll get another favorable ruling one year after last year's victory.  

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by: chiefscribe @ Thu Nov 20, 2008 at 02:42:25 AM CST

[ Parent ]

Lambda Legal Telephone Briefing

If you are a member of Lambda Legal I recommend you take them up on the invite to listen in on a telephone briefing this Friday about Prop 8.
I listened into on a couple of years ago about NJ Civil Unions.  It was quite informative.  Jennifer Pitzer will be one of the lawyers answering pre emailed questions.

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by: Karen in Kalifornia @ Wed Nov 19, 2008 at 20:05:50 PM CST

Will they speak to Justice Kennard's vote?

While both sides cheered the court's decision to take up the cases, Kennard's lone vote to deny review could spell trouble for opponents of Prop. 8.
Kennard is the court's longest-serving justice, having been appointed in 1989, and has been one of its foremost supporters of same-sex couples' rights. Without her vote, the May 15 ruling would have gone the other way. But she wrote Wednesday that she would favor hearing arguments only about whether Prop. 8 would invalidate the pre-election marriages, an issue that would arise only if the initiative were upheld.
"It's always hard to read tea leaves, but I think Justice Kennard is saying that she thinks the constitutionality of Prop. 8 is so clear that it doesn't warrant review," said Stephen Barnett, a retired UC Berkeley law professor and longtime observer of the court.
For those seeking to overturn Prop. 8, "I would not think it would be encouraging," said Dennis Maio, a San Francisco lawyer and former staff attorney at the court.

Sounds like the Kingdom of GOD (see above)  got to her big time.

It's the Hammer of JUSTICE,
It's the Bell of FREEDOM,
It's the Song about LOVE between,
my Brothers and my Sisters
...All over this Land.

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by: Orion45 @ Wed Nov 19, 2008 at 22:29:33 PM CST

[ Parent ]

If Prop 8 is overturned,

a lot of the credit has to go to the civil rights groups who pointed out (before and after the election) that equal protection is something that we do not want to mess with.

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by: M @ Wed Nov 19, 2008 at 22:46:41 PM CST

Impact of Personal Stories

I just took a look at some of the supporting exhibits om the mater.  A pdf is at

http://www.courtinfo.ca.gov/co...

If anyone reads these and still opposes same-sex marriage, I think they are cold-hearted.  These personal stories, which are just the proverbial drop in the bucket, make a very powerful impact.  

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by: fq5757 @ Thu Nov 20, 2008 at 07:41:47 AM CST

Cross-Posted from BTB

I read a thoughtful post on a legal blog that suggested the following:

"I think that Kennard wants to confirm that existing marriages are valid quickly and avoid the question on the constitutionality of prop. 8. I think when push comes to shove she will undoubtedly vote to strike prop. 8. She was hoping that by denying review for other than existing marriages that prop. 8 would be overturned by a popular vote before it reached the Supreme Court."

To my mind, this is probably what's going on with her vote to deny review.  We can't forget that Justice Kennard stands alone on the California Court in her continuing advocacy for gay rights and same-sex marriage (case in point:  she alone voted to uphold the marriages performed in San Francisco in 2004).  Indeed, her separate concurrence in the marriage cases essentially wrote the book on why questions of equal protection and why the protection of minorities from hostile majorities are the unique--and inviolable--province of the judiciary.  These constitutional principles, of course, reach far beyond the narrower question of gay rights.

Of course, the question of whether Prop 8 is an amendment or a revision is constitutionally unrelated to the questions of whether same-sex marriage is a fundamental right under the CA Constitution and whether homosexuals and same-sex couples are entitled to heightened judicial protection as a suspect class.

But unless Kennard has had some massive change of heart about the latter issues since May 15 (unlikely), it is almost unthinkable that, as a conceptual matter, she would vote to uphold ANY "amendment" that strips a fundamental right (marriage, voting, exercise of religion) from a vulnerable minority (gays, blacks, Mormons) that has been identified as a suspect class under the equal protection clause of the CA Constitution.

Given her prior positions, it is far likelier that she views an initiative like Prop 8 as a revision, given the singular change that it works regarding the foundational meanings of "fundamental right" and "equal protection."

(Keep in mind that the federal constitutional principles applied to protect some of these rights and classes of people are NOT in play here, because the CA Constitution itself says that it is wholly-independent from the federal constitution.  The majority opinion in the marriage cases confirmed this.)

In light of Kennard's past positions on such issues, therefore, my educated guess is that she's hoping to delay a constitutional ruling until after the 2010 midterms (or perhaps even later) for at least two reasons:

(1) The possibility that Prop. 8 is repealed by a subsequent ballot initiative, thus mooting the question of its constitutionality by removing it from the constitution.

(2) She hopes to avoid the threatened recall fight for ALL Justices voting to strike Prop 8, because we know that a recall battle will be BLOODY.  She's a liberal, but she's also a pragmatist.

**DISCLAIMER:  My comments are based on (1) Justice Kennard's prior statements and (2) the political realities facing the California Supreme Court.  They are merely educated guesses and should not be construed as anything more.**

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by: JTW @ Thu Nov 20, 2008 at 09:44:42 AM CST

"wholly-independent"

No state constitution is "wholly-independent" of the US Constitution in the sense that the US Constitution always supercedes state constitutions and the USC's provisions cannot be negated or ignored by a state constitution.  If you mean something else by "wholly-independent", please explain.

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by: Lurleen @ Thu Nov 20, 2008 at 11:19:52 AM CST

[ Parent ]

The Law of State/Federal Relations

As a constitutional matter, a constitution is "wholly independent" from another constitution when it retains a "wholly independent" legal force that is not dependent upon or necessarily coextensive with a separate or higher constitutional authority.

While this might seem a bit wonky, the idea is simple:  California and the U.S. government are separate sovereigns, and the only reason that California's Constitution can be trumped by the U.S. Constitution is because, when California sought admission to the Union, it voluntarily submitted to the higher authority of the federal Constitution--but, even then, only to the extent that its own laws actually conflict with that document.  Nothing about that historical act narrowed the scope of California's inherent authority as a sovereign state.

As a result, while the Supremacy Clause imposes whatever constitutional "floors" there are in the federal Constitution (i.e., California cannot afford FEWER rights than are afforded under the federal Constitution), it does not set any constitutional "ceilings" (i.e., California can always afford MORE rights than are afforded under the federal Constitution).

So here's how this works in the real world:  If the California Constitution contains a provision that violates the federal Constitution, that provision can only be ruled unconstitutional under the federal Constitution.  There is nothing inherent in California's own constitutional structure that prevents California from adopting provisions that are federally unconstitutional.  (A good example of this is Colorado's Amendment 2.)

Said another way, a state constitutional provision is constitutional until the federal constitution says that it isn't.  This is what is meant by "wholly independent."

Does that help, or is it now more confusing than ever?

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by: JTW @ Thu Nov 20, 2008 at 12:18:12 PM CST

[ Parent ]