Friday, November 7, 2008

Prop 8 Challenges

Moving past the presidential election, one issue that is coming up has to do with legal challenges to California's Proposition 8 on gay marriage. The ACLU and others have already filed suits in California court alleging that the proposition violates the state constitution. Since the proposition was itself a constitutional amendment, this seems quite confusing on the surface. How can a properly passed constitutional amendment be unconstitutional? The issue rests on the distinction between amendments and revisions. The California constitution states that the constitution may be both amended and revised without defining those terms with any specificity. Article 18, Sec. 3 establishes that the constitution may be amended through the initiative process. The only way to have a revision, though, is either through a 2/3rds vote in the legislature along with passage by a majority of voters or to institute a constitutional convention.

So what is the difference between an amendment and a revision? The basic sense is that an amendment is a specific change in the constitution while a revision is a broad change. Vague enough for you? The plaintiffs in these cases allege that Prop 8 is a revision to the constitution since the California Supreme Court found a fundamental right to marry as part of the state's equal protection article. To change the equal protection article, they argue, is a revision rather than amendment and cannot be done through the initiative process.

Without a detailed sense of the case law on what constitutes a revision and what constitutes an amendment, it is hard to say which side is likely to prevail. However, it is not an argument completely lacking in merit. The courts will have to decide how broadly or how narrowly they wish to define revisions.


Larry Becker said...

A related question here has to do with whether the "No on 8" campaign is making a tactical mistake in pursuing this through the Courts. Some argue that even a victory (which is probably a longshot but I don't know) in the Courts would be be politically problematic because the Courts would be overturning a popular referendum on the question.

It is hard to say what is the right path forward politically but this vote was an awfully sour local note on an otherwise terrific night for progressives nationally.

Blogger said...

Did you know that you can create short links with OUO and make dollars from every click on your short links.