•Why Prop. 8 Will be Defeated in the Courts

The fight over Proposition 8–California’s voter approved overturning of same-sex marriage rights–is now headed to the courts. The California Supreme Court will consider this week which of the myriad cases related to the measure it will consider.

Today’s LA Times article on the latest move helps to put some of these issues into perspective.

While supporters of the proposition are already beginning to pressure the court on the basis that it “must” uphold the “will of the people,” the issue at stake here is not the democratic decision-making process. The issue at hand is about changes and additions to the Constitution. California–like most states and the federal government–requires major changes to its Constitution to be made with a two-thirds majority vote of “the people.” Electoral standards like these do a few things, not the least of which is protect the rights of the “minority” from the whims of the “majority” and add an air of seriousness to the process of revision. In California, however, a simple majority of in the form of a voter initiative can add an “amendment” to the Constitution (something added to it that is in line with the basic principles contained within the original document). The legal question is whether or not Prop. 8 was an amendment or a revision to the State’s Constitution.

Proposition 8 was carefully written to avoid this question, arguing that it was an amendment. However, the court had already found the rights of same-sex marriage to be embedded in the document, hence, their decision of last May.

If the court does nothing other than respect their previsou decision AND uphold other precedent relating to what (legally) defines a revision versus and amendment, Prop. 8 is going down.

By a vote of 6 to 1 the Court agreed to hear arguments relating to the constitutionality of the ballot measure.  However, the lone dissenting vote was Justice Joyce Kennard, one of the justices who voted with the majority back in May.  That may say she thinks the legality of the measure is a non-issue.  If so, that might not bode well.  The decision in May was 4 to 3.

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