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I'm trying to understand the role of the various branches of government with respect to the electorate in decisions that are being made with Prop. 8.
The CA Marriage Ruling ruled, among other things, that marriage is a Fundamental Right of all classes of people. Prop 8 attempts to change the definition of marriage in the State Constitution to being "only between a man and a woman". As it stands currently, it seems that now marriage is a Fundamental Right which excludes gays and lesbians (except for those who choose to be married with the opposite sex) OR something which has now become ill-defined, but is similar to marriage, is now the right of all people.
It also seems, based on the legal arguments I have read, that only the Judicial Branch has the power to decide which Fundamental Rights are to be taken away from protected minority classes, and there has to be a very good reason (strict scrutiny under Title XVIII of the CA State Constitution). In this case, the Judicial Branch has the duty and the obligation to override the vote of the people, particularly when there is only a bare majority, if such reasons are not found.
Alternatively, the Legislature can "trump" the Judicial Branch by writing discriminaton into the State Constitution through a Revision, but only by a 2/3 vote in both houses, or through a Constitutional Convention which would involve the people more directly.
Please understand that this post does not directly question the Constitutionality of Proposition 8, I'm just trying to understand the proper procedures required based on the "Separation of Powers" argument alone. Prop. 8 may very well turn out to be unconstitutional, but the CA Supreme Court will decide this under a separate decision.
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