Monday, November 10, 2008

Bill Duncan's analysis of the Prop 8 legal Challenge

Our Academic Advisory board member Bill Duncan sent me this analysis of the legal challenge to Prop 8, being raised by the No on 8 crowd:

I think the challenge will be unsuccessful. First, identical suits have been brought in Oregon and Alaska to no effect. A revision is a major change to the constitution, typically a major structural change. Proposition 8 is a classic amendment, addressing only one subject in a focused way. Contrary to what the plaintiffs claim in their lawsuit, the amendment does not address “sexual orientation” or “rights,” it merely defines marriage. The Alaska Supreme Court and Oregon Court of Appeals have recognized that these narrow amendments are just that and not revisions of the constitution.

In addition to being an affront to the voters of the state, a negative decision by the California Supreme Court would be a dramatic expansion of the legal distinction between amendments and revisions and would surely open the door to a multitude of lawsuits challenging any amendment approved by voters (for instance, the redistricting amendment approved last week or the earlier term limits amendment). The constitutional amendment process would be superfluous if the California Supreme Court were given a de facto veto over every voter approved amendment.

This is not to mention the other practical reality that repudiating Proposition 8 would be a massive confiscation of resources—specifically the resources provided by supporters of the proposition. If this revision argument were valid it should have been worked through pre-election.

Those are the legal arguments and I think they are compelling. The wild card, and it’s pretty wild, is the willfulness of the California Supreme Court. The argument that Proposition 8 is a revision is not strong but neither was the argument that the California Constitution has always contained a mandate to redefine marriage (perhaps written in invisible ink). So, we have to take the challenge very seriously.

1 comment:

Michael Ejercito said...

Indeed, an expansive definition of revision (contrary to the Court's history of narrowly defining revisions) would put to question all initiative constitutional amendments, including those written by liberals.