Explanation of the Prop 8 legal challenge

Unless you've been living in a cave in Afghanistan, you know that Proposition 8 won at the ballot box and is being challenged in court. I am often asked, "What is going on? What does it all mean?" Ruth Institute's Academic Advisory Board Member Helen Alvare wrote this very clear explanation of the issues involved in the legal challenge to Prop 8.

A few days after its passage Proposition 8 was challenged by same-sex “marriage” proponents, on the grounds that it was a “revision” to the state’s Constitution, and not an “amendment.” This is important because the ballot initiative process cannot be used to “revise” the state’s constitution. According to Sections 1 and 2 of Article XVIII of the California Constitution, revisions can only be made by a process which requires approval of two-thirds of both houses of the state legislature. Amendments, on the other hand, according to Section 3 of Article XVIII are allowed to be made by ballot initiative.

Of course then, the million dollar question is what marks the difference between a revision and an amendment? Needless to say, supporters and opponents of same-sex marriage -- whose petitions and amicus curiae letters in opposition to such petitions have already been filed with the court -- differ on this point. Both sides reach back into California judicial decisions for the relevant definitional language. They note that constitutional “revisions” alter “underlying principles” of the government and make “far-reaching changes to the nature of our basic governmental plan.” Amendments, on the other hand, make additions or changes within the lines of the original constitution, which, even if they result in “various substantial changes in the operation of the former system, “ add “nothing novel to the existing governmental framework of the state.”

Immediately, you can see that these definitions are not self-evident, let alone self-executing. Both sides, therefore, go further to make arguments based on prior cases in which ballot initiatives were upheld or overturned based upon their judicially-determined status as an amendment or a revision. These are not simple arguments, but their rough outlines can be sketched.
Supporters of Proposition 8 begin by emphasizing the “precious right” of the people to make laws via initiatives, noting in particular that with Proposition 8, the people are merely reinstating the law that prevailed in California since the inception of the state. They also note the brevity of Proposition 8’s language. It is fourteen words and touches one subject; marriage. They contrast this with an earlier ballot initiative determined to be a “revision” which had thousands of words and would have repealed or substantially altered 15 or 25 articles of the constitution, treated four new topics and “substantially curtailed functions of two branches” of the state government. They further argue that Proposition 8 is not like another initiative declared to be a revision – an initiative requiring California to give fewer rights to criminal defendants by conforming to the federal, versus the state, constitution’s interpretation of such persons’ rights. The California Supreme Court found that this was a fundamental transfer of power from a state to the federal government, and a “wholesale diversion” from a stated original purpose of the state’s constitution. ...
Opponents of Proposition 8, on the other hand, argue that it is a “revision” because it severely compromises “the core constitutional principle of equal protection of the law, depriving a vulnerable minority of fundamental rights, inscribing discrimination based on a suspect classification into the Constitution, and destroying the courts’ quintessential power and role of protecting minorities and enforcing the guarantee of equal protection under the law.” They eschew supporters’ reliance on the brevity of Proposition 8’s language, and call its effects to the court’s attention. They write that by “mandating discrimination” and tying courts’ hands from their usual role, the “underlying principles” of the California constitution are discarded and the “system of checks and balances” between governmental branches is fundamentally altered. Within this argument, they make the sub point that “equal protection” is not an isolated or discrete guarantee of the state’s constitution, but a principle that permeates its entire fabric.

Read it all here.