Legal Commentary

CA Supreme Court Will Review Challenges to Prop. 8

By TChris

The California Supreme Court today agreed to decide whether voter approval of Prop. 8 repealed the state constitutional right to same sex marriage that the court recognized earlier this year.

The court agreed today to review two related arguments by opponents of Prop. 8 - that the measure exceeds the legal scope of a ballot initiative by allowing a majority to restrict a minority group's rights, and that it violates the constitutional separation of powers by limiting judicial authority.

The supreme court's direct action will eliminate the need for litigation to work its way through trial courts and intermediate appeals before reaching the state's highest court. [more ...]

About California election law and constitutional amendment procedures I know nothing. The questions seem to turn on whether Prop. 8 is an amendment or a revision of the state constitution. A ballot initiative can be used to amend but not to revise.

The state's high court has defined a constitutional revision as a fundamental change in government structure and has struck down only two initiatives as revisions. The last time was in 1991, when the court overturned provisions of a measure that would have required California courts to follow federal standards on criminal defendants' rights rather than relying on the state Constitution to grant broader rights.

Here are the arguments, boiled down to one sentence for each side:

Lawsuits to overturn the initiative contend it was a revision because it denied equal protection to a minority group and eviscerated a key constitutional guarantee. Supporters of Proposition 8 counter that it merely amended the constitution by restoring a traditional definition of marriage.

Do we have any authorities on California constitutional law in the audience who want to weigh in?

One last thing. The activists who oppose gay marriage are trying to intimidate the court:

Supporters of Proposition 8 have threatened to mount a recall of any justice who votes to overturn the measure. The court's members serve 12-year terms and appear on the ballot unopposed in retention elections.

Full post as published by TalkLeft on November 19, 2008 (boomark / email).