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Monday, July 01, 2013

What Proposition 7 Has to Say About the Proposition 8 Endgame

On November 5, 1974, California voters approved Proposition 7, which, among other things, repealed three California constitutional provisions which had been declared unconstitutional. The proposition responded to Griffin v. California, where the U.S. Supreme Court invalidated a provision allowing comment on failure of a defendant to testify; Sei Fujii v.  California, in which the California Supreme Court voided a law, authorized by the constitution, allowing racial discrimination in land ownership, and Reitman v. Mulkey, where the U.S. Supreme Court affirmed a California Supereme Court decision invalidating a provision designed to allow private parties to discriminate in housing sales and rental based on race.  In Alabama and other former Jim Crow states, prohibitions on integration and interracial marriage have gradually been removed from the books (but Mississippi Code Ann. 37-7-329 is a nice exception).

My guess is that millions of Californians will agree that repeal should be the fate of Article 1, Section 7.5, "[o]nly marriage between a man and a woman is valid or recognized in California."  Its text denigrates thousands of marriages in California, it remains on the books, and if written law has any expressive force, it should be gone, just as California repealed many discriminatory laws from the era when it was a Jim Crow state.  

There may be pragmatic reasons to wait to seek repeal; the apparently unlikely failure of a repeal initiative would be an embarassment.  And the Proposition 7 analogy is imprecise; if race and crime remained hot topics, the precise issues addressed in Proposition 7 had largely ceased to be legal or political controversies by 1974, and the underlying cases were 7 to 22 years old.  On the other hand, formal repeal would moot questions like whether some party not covered by the injunction could challenge the decision invalidating Proposition 8, or whether California same sex marriages can be collaterally attacked when their validity has some legal consequence.  It would also undermine the argument that Perry v. Hollingsworth was not democratically legitimate.  Since the majority of California voters apparently support same sex marriage, an electoral affirmation of that fact would be welcome.

Posted by Jack Chin on July 1, 2013 at 04:14 AM | Permalink


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Posted by: | Jul 5, 2013 6:04:31 PM

I should add that in the unlikely even that the Ninth Circuit strikes down state marriage amendments and the Supreme Court does not take us the case, same-sex marriages could still be collaterally attacked in state courts (where state law does not recognize same-sex marriage)

Posted by: Michael Ejercito | Jul 2, 2013 11:37:46 PM

I should add the Ninth Circuit will decide, likely by next winter, the constitutionality of same-sex marriage bans in two cases where it plainly has jurisdiction to hear the appeal.

I am not sure that a repeal of Prop 8 will occur before the Ninth issues its ruling. Striking down those laws would, of course, effectively extend the injunction to officials like city mayors, the State Controller, and local school districts, which were not bound by the injunction. On the other hand, upholding those laws would be a clear basis for for a Rule 60 (b) (5) motion, because to lift the injunction, on the basis that "decisional law [had] changed to make legal what the [injunction] was designed to prevent." Agostini v. Felton, 521 U.S. 203 at 214 (1997) (internal citation omitted)

Posted by: Michael Ejercito | Jul 1, 2013 10:17:33 AM

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