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.

The answer, as alluded to in passing by Gabe, is no. In order to understand how (or why), one must look closely at Justice Borden’s dissent. Essentially he does what I predicted he would do.

Let’s lay this out:

Borden agrees with the majority that:

contrary to the conclusion of the trial court, the plaintiffs have stated a cognizable constitutional claim. I agree that there is enough of a difference between the new institution of civil union and the ancient institution of marriage to permit a constitutional challenge on equal protection grounds. There is no doubt that the institution of marriage carries with it a unique and important history and tradition in our society and state.

Where he disagrees with the majority is the finding that gay couples hold an inferior position in the State, which ties in nicely with his major disagreement: that they are politically powerless.

I also agree, however, with the majority that the same factors that trigger strict scrutiny under our equal protection clauses trigger intermediate scrutiny, and I agree generally with the majority’s four factor test applicable to trigger those tiers of judicial scrutiny, including the notion that there is no formula for applying the four factor test. Furthermore, applying those four factors to the facts of this case, I agree that gay persons have suffered a deplorable history of invidious discrimination, that their sexual orientation is a distinguishing characteristic that defines them as a discrete group, and that one’s sexual orientation has no relation to a person’s ability to contribute to society. My fundamental disagreement with the majority focuses, however, on the relevance and application of the fourth factor, namely, the political power of gay persons in this state.

This is the only significant place where Justice Borden (and by association Vertefeuille) departs from the majority: that they don’t need heightened protection because they are damn well capable of getting what they want from the legislature.

It is to blink at political reality to ignore or to dismiss, as the majority does, this extraordinary and unprecedented public record. No other court that considers the political power factor as relevant has been  presented with this unique demonstration of political power. Moreover, I note that it is influential elected politicians—not appointed judges—who think that gay marriage through legislation is inevitable in Connecticut; who have discussed the issue with their elected colleagues and their constituents; who have read the public opinion polls, and have concluded that gay marriage will be enacted legislatively in  Connecticut sooner rather than later; and who determined, in April, 2007, more than one year ago, that within one or two years from then a strong, bipartisan majority likely would pass a gay marriage bill…

But Justice Borden’s personal beliefs about gay marriage and civil unions are revealed, uncharacteristically I think, in a footnote (footnote 5):

In reaching this conclusion, I emphasize that, if I were a legislator voting on legislation, I would recognize the legitimacy of the plaintiffs’ aspirations to have the legal status of marriage and would vote accordingly. I am, however, not a legislator; I am a judge, and my analysis of the applicable legal principles leads me to conclude, contrary to the majority, that the legislation at issue is not unconstitutional. That is where my obligation must end, and that of the legislature begin. As Justice Madsen stated, writing for the majority in Andersen v. King County, 158 Wash. 2d 1, 8, 138 P.3d 963 (2006), ‘‘[p]ersonal views must not interfere with the judge’s responsibility to decide cases as a judge and not as a legislator.’’

So, in reality, 6 out of 7 justices on the CT Supreme Court favor same sex marriages. 2, however, thought it was best left to the legislature and that it would come about, sooner or later.

I disagree with Justice Borden on his interpretation of the law, but not his views on gay marriage.