If you want to understand the basics of the current legal challenge to Prop 8's passage, read on.
Article 18 of the California state Constitution provides that the Constitution can be changed either by "amendment" or by "revision". An amendment may be enacted by initiative with a majority vote, as Prop 8 was. A revision must first be passed by two-thirds of the Legislature before being submitted to the voters.
Why two different ways? The revision method is, under case law, reserved for a matter that "substantially alters the basic governmental framework set forth in our Constitution." Opponents of Prop 8 are arguing the Prop 8 did precisely that.
The court will decide.
The prima facie case can appear quite reasonable to a non-lawyer. But consider this: the court has repeatedly taken a VERY narrow view of the definition of a "revision". Amendment initiatives as dramatic as Prop 13 (limited property tax rates), Prop 140 (imposed legislative term limits), and the initiative that reinstated the death penalty in 1972 all failed to qualify as "revisions" in the eyes of the court. Especially noteworthy is the fact that the 1972 death penalty amendment directly limited the judiciary's power to declare fundamental rights.
There are also ample precedents in other states where the the court has rejected the type of challenge Prop 8 opponents are now presenting. The ACLU recently made this same “constitutional revision” claim in a nearly identical matter in Oregon. The claim was made under almost identical provisions of the Oregon State Constitution, against an almost identical voter constitutional amendment which read, “…only a marriage between one man and one woman shall be valid or legally recognized as a marriage.” The rejection by the Court of Appeals was unanimous. (Martinez v. Kulongoski (May 21, 2008) --- P.3d----, 220 Or.App. 142, 2008 WL2120516).
I am no lawyer, but I do know lawyers. None of them I have asked about this issue think the Prop 8 opponents have much of a chance of winning this legal challenge.
As the saying goes, "The race is not always to the swift nor the battle to the strong, but that's the way to bet."
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Especially noteworthy is the fact that the 1972 death penalty amendment directly limited the judiciary's power to declare fundamental rights.
What good is equal protection if our right to be free from cruel and unusual punishment can be taken away?
Your argument, Mr. Army, is valid only if you believe the death penalty is cruel and unusual.
Everyone is entitled to their opinion, of course, and many people hold very strong, emotional opinions on that matter. The fact is that those opinions are hypothetical and almost never get tested in real life.
My opinion on the death penalty was tested to the maximum when I held a pen over a death warrant for two convicted murderers and knew that my signature would put both of them on death row.
The case was especially heinous. The victim was a teenage girl who was in the sanctum of her own home when two men broke in and robbed the house. Then, they cut her throat with a pair of scissors and strangled her to death with an electrical cord. We saw over a hundred photographs of the death scene. I held in my own hands the cord that the murderers had used to kill her; it still had her blood on it. We heard the DNA evidence placing the men at the death scene. We heard the Coroner testify that to strangle a human being to death with a cord like the one used, you must pull it extremely tight and hold it there for up to two minutes. Try to imagine what she was feeling during those 120 agonizing seconds, knowing that she was about to die. She soiled herself before she finally passed away.
The murdered girls mother could not appear at the trial because she was incapable of facing it. The girl's father tried to burn the house down and kill himself and his entire family because they were so overwhelmed with grief that life no longer seemed worth living.
The murdering thieves got away with a few hundred dollars in cash and some costume jewelry.
The jurors reported haunting dreams that left them unable to sleep at night. One juror had a nervous breakdown and had to be excused from the case. I know, firsthand, how deeply traumatized everyone involved with the case was.
The death penalty is cruel and unusual punishment?
Not for those murderers. Not by any conceivable means.
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