Sunday, November 9, 2008

Legal notes on Prop 8 and the role of the CA Supreme Court

I just want to point out a couple of things about the legal challenges to Prop 8:

-For those who say that the CA Sup Ct should have weighed in on the measure's legality before it was passed: just such a challenge was filed, and the Court declined to review it, as it has not been the practice of the Court to review initiative measures before they are approved by the electorate.

-There are lots and lots of people who feel very pessimistic about the legal challenge, and I'd like to make clear one very simple thing: based on the equal protection admonitions of the May 2008 decision that legalized same-sex marriage in the first place, Prop 8 was clearly unconstitutional at the time of its passage. This is one of many points argued in the petition, and I frankly believe it is the one that will appeal to the Court's sense of purpose.

-People have been focusing on the argument that Prop 8 constitutes a revision as opposed to an amendment. If the Court determines that it was, in fact, a revision, then it would have required a passage through 2/3 of the legislature, and would not stand. While this is a reasonable assertion, it is arguable whether the scope of Prop 8 can be interpreted to be broad enough to constitute a revision. The revision argument makes sense from an equal protection / due process / civil rights perspective, which admittedly was the original rationale of the Court's decision. However, I think it could be successfully argued that since the language of the amendment is so finite and affects only one section of the Constitution, it does not constitute a revision.

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