The Legal Framework Behind the California Prop. 8 Controversy

All around the United States, LGBT supporters are bracing themselves for D-Day – the Day of Decision. Tomorrow the California Supreme Court will announce whether Proposition 8 will be upheld. Proposition 8 was a constitutional amendment overturning the California Supreme Court’s decision to recognize same-sex marriages. Although the majority of Californians supported this initiative, the vocal minority sought recourse again in the court system.

For many, clarification is warranted to understand the situation. Courts hold a duty to follow the Constitution. When citizens amend the constitution, it is expected that the courts uphold such amendments. After all if there is to be “government of the people, by the people, for the people” (Abraham Lincoln, Gettysburg Address, 1863) then effect must be given to the will of the people – otherwise, the result is tyranny by the minority.

Revision vs. Amendment
California’s constitution, however, distinguishes between a constitutional amendment and a constitutional revision. Both require majority approval by the voters, but the latter requires two thirds approval of both the house and the senate in the California legislature.

Now, the million dollar question is: what constitutes a constitutional revision? Unfortunately, there is not much case law on this topic and ultimately it will depend on the definition of “revision”. The California constitution defines it as a “substantial alteration of the entire constitution rather than to a less extensive change in one or more of its provisions.”

Can an initiative take away a “fundamental” right?
Obviously, the first issue is whether Proposition 8 constitutes a revision. The core issue strikes at the heart of the constitution and democracy. The California Supreme Court recognized same-sex marriage as a fundamental right. In other words, same-sex marriage receives judicial deference on the same level as religion, press, and speech. So, proponents argue, an amendment abrogating a basic fundamental right constitutes a revision since it deals with the foundation of the constitution.

The obviously counter to this is that same-sex marriage is not a fundamental right and spontaneously recognizing it as such does not automatically spring it to an higher category of a “revision”; it is merely an amendment codifying what has been recognized as natural for thousands of years – marriage is only between a man and woman.

A subsidiary issue is whether the 18,000 same-sex marriages already recognized by the court will be invalidated. Obviously, if Prop 8 is struck down, the issue is moot. However, if it is upheld, then the court will decide whether the marriages stand or will be completely undone.

No one knows completely how this will result, there is little case law and trying to predict the outcome can be like flipping a coin, even with a liberal court. If Prop 8 is struck down, conservatives and evangelicals – the main forces behind this initiative – will have a beast of a time reaching a two thirds majority in the legislature. Currently, this wouldn’t be possible. Thus, to push the initiative through, its citizens much choose to elect representatives consistent with traditional marriage positions. Of course, this would mean California transitioning from a blue state to a red one. Changes like these take time.

If Prop 8 is upheld, and the marriages are invalidated, leftists and LGBT groups will likely redouble their efforts to pass though another amendment repealing Prop 8.

I’m not too sure what the verdict will be, but I’m guessing the court will see this as a revision. Remember, this is the same court that recognized same-sex marriage as a fundamental right in mid-2008. Either way, someone will be going home disappointed, whether that will be the vocal LGBT community or the majority of California citizens remains to be decided.


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