The court finds not only that the California Constitution violates the Equal Protection Clause of the United States Constitution, but also the Due Process Clause. The court, essentially, answers my question from a few years ago: can the constitution be unconstitutional? Yes, it can. Rejecting anti-gay-marriagers attempts to redefine the question, the court nicely puts the real issue at focus with this paragraph:

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek  something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

Viewed in light of that question – do gays and lesbians have the right to marry? – Prop 8 is analyzed as an infringement of a fundamental right and thus invokes strict scrutiny for a Due Process analysis. To overcome strict scrutiny, there needs to be a compelling governmental interest. An effort to show such an interest in same-sex marriage cases has always been doomed from the start, for there is none. Particularly telling, in this case, is that the State of California chose not to defend Prop 8. If the Government does not wish to articulate that compelling governmental interest, it can mean only one thing: one does not exist.

The analysis under the Equal Protection Clause is even more damning. The court doesn’t even bother determining whether gay couples are a suspect class deserving of strict scrutiny:

As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court  need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.

Page 121 onwards.

Look at these attempts to provide a rational basis for Prop 8:

Proponents put forth several rationales for Proposition 8, see Doc #605 at 12-15, which the court now examines in turn: (1) reserving marriage as a union  between a man and a woman and excluding any other relationship from marriage; (2) proceeding with caution when implementing social changes; (3)  promoting oppositesex parenting over same-sex parenting; (4) protecting the freedom of those who oppose marriage for same-sex couples; (5) treating same-sex couples differently from opposite-sex couples; and (6) any other conceivable interest.

The court debunks each one in detail, but this following paragraph can be applied as an appropriate response to each and every one:

The evidence shows that Proposition 8 does nothing other than eliminate the right of same-sex couples to marry in California. See FF 57, 62. Proposition 8 is  not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not  affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.

That’s enough quoting. Go read the decision for yourself and have a celebratory drink with me, just as I did two years ago, when gay marriage was legalized here in CT, as we chew on this powerful statement:

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the  outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943)

But really, Judge Walker didn’t need to write that long decision. All he needed to do was print this and sign it:

Somewhat along the lines of this.

The issues they have asked for briefing on are:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, §§ 14.)

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

This is going to get very, very interesting from a Constitutional law perspective, folks. You better strap yourselves in.

My previous thoughts on Proposition 8 and it’s validity are here and here.

More from The Satyricon, Volokh and TalkLeft.

You can’t watch this and not feel some happiness.

The man officiating, btw, is Appellate Court Judge F. Herbert Gruendel.

So what’s a Californian to do? And where does this leave the Equal Protection Clause of California? The primary purpose of the equal protection clause, as I see it, is to protect a minority of citizens from the subjugation of a majority. Every individual should have the same rights as every other individual. That has to be the thrust of the EPC. But a slim majority of voters in California decided that gay people were less deserving of the same rights (whether this was done on the up-and-up in open to debate: there are reports that proponents of the ban were using some downright despicable tactics, like scaring people [scroll to the bottom] that gay-marriage meant a gay curriculum in schools).

So what now, anyway? Plenty, apparently, as this post from Co-op highlights. The attorney for the first gay couple to get married in CA will file a lawsuit against Prop 8 with a new and controversial legal argument (although it doesn’t state what that is), there may be a large number of ballots that have not been counted and the city of San Fran will file another suit.

But there’s yet another challenge – one that may well shape up to be the most interesting Constitutional issue of our times. Yes, whether the amendment itself is uconstitutional because it violates the Constitution. That’s the crux of the ACLU/Lambda challenge: the so called “amendment/revision” distinction. An amendment requires only a simple majority of voters, but undoing a core fundamental right and removing it from the Constitution is a revision to the Constitution and requires a constitutional convention and 2/3 majority of the legislature.

The post at Co-op seems to disagree:

Another suggestion from a friend is that the proposition fails because it is inconsistent with other constitutional provisions. That seems to misunderstand the function of constitutional amendments. Where these are inconsistent with other provisions, they are typically intended to overrule those provisions. (I.e., the 13th amendment and the slavery provisions; or the Prohibition amendments.) As a matter of basic interpretation, I think that the reading one would give it is that to the extent that the Equal Protection clause required marriage to be extended to same-sex couples (Marriage Cases), that interpretation is now overruled.

I do think the examples he gives above are different from the situation at hand. At least with the prohibition amendments, a later amendment specifically repealed an earlier amendment. That’s not the case here, where a fundamental right is at stake.

Could a State decide to take away fundamental rights? Can CT tomorrow pass an amendment banning inter-racial marriage? Or making all immigrants slaves? Or preventing women from marrying men younger than them? Or heck, rolling back all the way to the days of “separate but equal”? After all, it was an interpretation of the Constitution that banned racial discrimination.

Why would that not be subject to challenge? And if it is, then why isn’t CA’s Prop 8?

I think the coming months will indeed see this challenge and the question of what happens when a provision of the Constitution clashes with a subsequent amendment. Which is given more weight?

To end, I leave you with this personal note from this DKos post about Prop 8:

I still can’t believe that millions of total strangers who have never so much as laid eyes on me had the right to vote on my rights and equality at all, let alone that they voted against them. If this was, in fact, an unconstitutional proposition, it means they did not have that right. It won’t change the fact that they voted how they did, but it will take some of the pain away.

And that’s just it. Do we want one group of people deciding the rights and freedoms of another group? Thank you, CT, for having the good sense to not fall for this one.

• Who pays for a Constitutional convention?
• How much does it cost?
• How long does one last?
• How do issues get debated at a ConCon?
• Do we still have to vote on the issues after they’re approved by the convention?
• What happens when direct initiative is approved?
• Why do we need legislators after direct initiative is approved?
• Can the legislature supercede a law passed by referendum?
• What’s to stop people from putting abortion to a popular vote?
• What’s to stop people from repealing Article 1, Section 8 of the State Constitution (the bill of rights, as it were)?
• How is this push for a Constitutional convention not driven by bigotry?
• Can one voter initiative repeal an earlier one?
• What will the point of a legislature be, if we can pass all laws?
• Is the legislature forced to fund all initiatives that pass?
• What if they can’t?
• What if a Constitutional Amendment violates another provision of the Constitution?

There are so many variables here. CT News Junkie has a nice piece touching on a few of these aspects, but that still leaves many unanswered questions.

For example, if a statute is passed establishing a three-strikes law, what’s to stop the legislature from passing a new statute declaring the previous statute void? And so on and so on in circles?

It seems to me that this call for a concon is driven solely by special interest groups that know they don’t have the votes in the legislature and want to to get their agenda approved.

The system works very well as it is. Why fix something that isn’t broken?

This is why I’ll be voting no. What about you?

The battle lines have been drawn: the anti-gay marriage folks are pushing hard for this constitutional convention. Their ultimate goal is get an amendment passed at the convention that would be similar to California’s Proposition 8 [pdf] (banning gay-marriage), but the sentiment seem to also be that they would like an amendment to the constitution authorizing voter referendum, which could lead to other questionable legislation: banning abortion, a true three-strikes law, etc.

Folks on both sides of this fight are getting ready, though the “no” folks seem to be getting the majority of the donations (over $800K as compared to $12K).

The question is on the ballot this year because of a decision at the 1965 convention to revisit the issue approximately every 20 years. The question was defeated in 1986 by some of the same groups that oppose it now: the American Civil Liberties Union, the Connecticut Trial Lawyers Association, Connecticut Citizen Action Group, Planned Parenthood, National Council of Jewish Women and the teachers’ unions, among others.

Opponents of the measure say Connecticut voters do not need a direct vote on the issues of the day because they have elected a governor and a state legislature to do that.

“I think it’s a mistake,” said Senate President Pro Tem Donald Williams. “We have a representative democracy that’s worked and served Connecticut very well.”

“You could wind up with the kind of train wreck that we see in California and the huge budget deficits.” Williams added, “The state constitution that we have right now has served us very well.”

Take a look at some “notable initiatives” from around the States.

The argument that the majority of citizens in CT oppose gay marriage may not hold much water anymore. A recent UCONN poll found that 53 percent favor it, while 42 percent oppose it. These numbers represent a reversal from just 3 years ago.

So, it goes without saying that I will be voting “NO” (emphatically, if it counted for more) on November 4th and so should you. I’m not opposed to the idea of a Constitutional convention per se – but only in the most extreme of circumstances. These are not them.

Others have also spoken out about their reservations:

Standing on the steps of the state Capitol Wednesday, Attorney General Richard Blumenthal, who opposes a convention, said that there are better ways to change the state constitution, than holding a constitutional convention.

He said the current state constitution has been amended 30 times through the legislative process to change how judges are appointed, eliminate the corrupt sheriffs system, and determine how an incapacitated governor should be replaced.

Wesley Horton, who specializes in constitutional law and has written a book on Connecticut’s constitution, said in a statement Wednesday “Without some overwhelming need for a constitutional convention, such a convention could easily be dominated by single-issue special interest groups,” he said. “If zealous groups to not get what they want from the legislature or the governor or the courts, they could put the issue to the convention.”

Horton warned that “If we think the Connecticut legislature is dominated by special interest groups, wait until Connecticut has a constitutional convention called, not because some major upheaval requires it, but because special interest groups band together to dominate it!”

As Scott puts it:

It doesn’t matter that some call gay marriage an abomination.  We all have things we consider “abominations”, though they tend to vary wildly.  Why is your abomination better than mine?  If the constitutional proposition commands discrimination that would deny equal protection to a specific class, then it creates an internal constitutional conflict.  We can’t discriminate, but we must discriminate, hardly seems to make for an acceptable situation (personal abominations aside).

On the other hand, however, it would raise a very interesting Constitutional law question: Would a new Constitutional amendment banning gay marriage violate the Equal Protection Clause of the Connecticut Constitution? If it did, would there be any recourse?

Oh that gets me excited just thinking about it. But that’s not a good enough reason to vote yes.

I will repeat: these are my views only. Not my employer’s. Don’t assume them to be, because you will be wrong.