Prop 8 to be argued in court tomorrow

Emma Ruby-Sachs gives a preview of what we can expect to hear in the oral arguments before the California Supreme Court concerning Proposition 8:

The argument against Proposition 8 has two main assertions. […] The first – the big picture fundamental rights approach – argues that, once the California Supreme Court found that unequal marriage rights constituted a violation of the equal protection clause in the California Constitution, taking away marriage rights from same-sex couples would constitutionally enshrine a violation of the right to equality. […] This leads into the smaller technical argument: Proposition 8 created such a fundamental shift in the fabric of the Constitution that it can’t be approved by votes alone and requires a secondary legislative approval process.

If you’re feeling good about these arguments, don’t start planning your big gay wedding quite yet. The Proposition 8 supporters have some pretty convincing law on their side […] Without a hierarchy of rights that preserves some from amendment, when two provisions within one legal document conflict, the Court usually finds that the specific provision (in this case Proposition 8) overrides the more general provision (the equal protection clause).

Second, the fact that Proposition 8 was passed by popular vote according the amendment requirements means that the Court must assume it is valid. That leaves the petitioners with the burden of proving that the amendment is actually a revision.

Burden is important because when there is a presumption of validity you need to clearly prove your argument to have any chance at success.

Read the rest her article here.

You will be able to view the oral arguments live by webcast. [Note added Thursday – The webcast server is overloaded. The trial will be archived and available for later viewing.]

On Monday California legislators passed two anti Prop-8 resolutions.

Integrity has a post on the upcoming hearing with more links to how we get here and where we might be going. Also see this item on the Eve of Justice.

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