BREAKING: Vermont legalizes same-sex marriage

[Admiral Yi]

If voter props are going to be treated as legislation, they need to be subject to the same standards and review as any other legislation to be passed.

Aren't ballot amendments to state constitutions already subject to judicial review?

[Martinus]

If voter props are going to be treated as legislation, they need to be subject to the same standards and review as any other legislation to be passed.

Aren't ballot amendments to state constitutions already subject to judicial review?

I don't know how it works in the US exactly, but I assume that if a measure changes the state constitution, it cannot be reviewed from the point of view of being inconsistent with the state constitution - because you can only review a hierarchically lower act of law from the point of view of its consistency with the higher act.

So the only review that could happen, I suppose is to answer whether its manner of passing was constitutional in itself (e.g. like the argument made against Prop 8 that it does not guarantee the proper rule of law if rights of group of people can be taken away by a simple majority of popular vote) and whether it is consistent with the federal constitution.

This makes it less possible to challenge it than the act of the legislative.

[DontSayBanana]

Aren't ballot amendments to state constitutions already subject to judicial review?

Not necessarily. In California, an amendment is proposed by constitutional convention, legislature, or voter initiative. In this case, 8 percent of the number of voters from the last gubernatorial election had to sign a petition to get it on the ballot.

The voter initiative amendment is sent straight to the ballot. It looks like it's only subject to judicial review after the amendment is passed and codified.

EDIT/NOTE: California and Oregon appear to be the only two states that can amend their own state constitutions by petition and popular vote alone. Every other state appears to require either a legislative session or a constitutional convention.

[Neil]

Aren't ballot amendments to state constitutions already subject to judicial review?

Not necessarily. In California, an amendment is proposed by constitutional convention, legislature, or voter initiative. In this case, 8 percent of the number of voters from the last gubernatorial election had to sign a petition to get it on the ballot.

The voter initiative amendment is sent straight to the ballot. It looks like it's only subject to judicial review after the amendment is passed and codified.

EDIT/NOTE: California and Oregon appear to be the only two states that can amend their own state constitutions by petition and popular vote alone. Every other state appears to require either a legislative session or a constitutional convention.

Which makes sense, because otherwise you know the fags would have taken this out before it ever got on the ballot, if they had some legal recourse.

[grumbler]

[Yeah, simply because of the "full faith and credit" clause, sooner or later the USSC will have to weigh in.

Yep, and it will be interesting to see how the various justices justify their abandonment of the Constitution.

I predict a 6-3 decision against the Constitution, with 5 different majority opinions (Thomas concuring with whatever Scalia decides is right).

[Scipio]

DOMA states full faith and credit does not apply to marriage.  Congress pretty explicitly has the right to set what full faith and credit means; I don't think that you'd get less than a 7-2 on DOMA challenges.

[Faeelin]

DOMA states full faith and credit does not apply to marriage.  Congress pretty explicitly has the right to set what full faith and credit means; I don't think that you'd get less than a 7-2 on DOMA challenges.

Hrmm. I'm sure somebody has done an article on it already, but I think I've found what I wanna write for next year.

[Neil]

Yep, and it will be interesting to see how the various justices justify their abandonment of the Constitution.

And that's the beauty of the US Constitution.  No matter what your position on any issue, you're abandoning it.

[grumbler]

DOMA states full faith and credit does not apply to marriage.  Congress pretty explicitly has the right to set what full faith and credit means; I don't think that you'd get less than a 7-2 on DOMA challenges.

Not sure I agree, based on what I have read (which has been pretty much restricted to DoMA, so not representative).

It would be interesting to see on what basis states can invalidate marriages in other states because of sex, but not any other single factor.  It is a pretty fine line.

[grumbler]

And that's the beauty of the US Constitution.  No matter what your position on any issue, you're abandoning it.

  Well put.

[Fireblade]

EDIT/NOTE: California and Oregon appear to be the only two states that can amend their own state constitutions by petition and popular vote alone. Every other state appears to require either a legislative session or a constitutional convention.

Arkansas's constitution can be amended by petition and popular vote.

[Admiral Yi]

Not necessarily. In California, an amendment is proposed by constitutional convention, legislature, or voter initiative. In this case, 8 percent of the number of voters from the last gubernatorial election had to sign a petition to get it on the ballot.

The voter initiative amendment is sent straight to the ballot. It looks like it's only subject to judicial review after the amendment is passed and codified.

How is that different than an act of the legislature?  The courts can't review a new peice of legislation before it has been passed.

[DontSayBanana]

Arkansas's constitution can be amended by petition and popular vote.

Alone? What I was saying was that California and Oregon appear to be the only states where an amendment can totally bypass the state legislature. Other states have voter access to constitutional amendments, but they have to be endorsed by the state legislature.

[DontSayBanana]

How is that different than an act of the legislature?  The courts can't review a new peice of legislation before it has been passed.

The courts can't, but your average legislative representative is going to have access to legal counsel or legal experience with which they will consult before introducing a bill, and once it's in the pipeline, the other representatives will do likewise before the bill comes up for a vote. Most of the California voters didn't have access to that preliminary step.

[Martinus]

How is that different than an act of the legislature?  The courts can't review a new peice of legislation before it has been passed.

The courts can't, but your average legislative representative is going to have access to legal counsel or legal experience with which they will consult before introducing a bill, and once it's in the pipeline, the other representatives will do likewise before the bill comes up for a vote. Most of the California voters didn't have access to that preliminary step.

Yeah, most legislative bodies have constitutional or legislative committees, which give opinions about constitutionality of draft bills. While obviously their role is advisory only, they have some persuasive power.