Why Prop 8 Is More Complicated Than It Looks
|Written by Julie DiCaro|
|Last Updated January 16, 2009|
On June 16, 2008, Supreme Court of delighted same-sex marriage supporters across the nation by declaring that the California Constitution guaranteed the right of all individuals to marry, regardless of their sexual orientation. In the same case, entitled In Re: The Marriage of Cases, the Court invalidated section 308.5. of the California Family Code, which stated, "only marriage between a man and a woman is valid or recognized in California," in its entirety. Over the course of the next several months, thousands of same-sex couples married in California, including celebrities like Ellen DeGeneres and George Takei.
Not willing to accept the Court's ruling lying down, opponents of same-sex marriage resurrected section 308.5, this time in the form of a ballot initiative to amend the California Constitution that used the exact same language as that section, now entitled Proposition 8. On November 4, 2009, the measure passed by a margin of 52 to 48 percent, placing the newly-amended Constitution in direct conflict with the Court's ruling in Cases, and setting off a firestorm of legal contradictions so convoluted that the Court asked California Attorney General Jerry Brown to submit a brief attempting to untangle the legal issues .
While there is no dispute that proponents of Prop 8 jumped through all requisite legal hoops and that the initiative was properly placed on the ballot, the Court still must sort out challenges to the constitutionality of the measure. The main problem for the Court is that California allows two separate methods by which to make changes to the state Constitution. While an "amendment" to the Constitution can be placed on the ballot by voters, as was the case with Prop 8, a "revision" to the Constitution requires the approval of two-thirds of the state legislature in addition to a majority of the voters. In general, the Court has held that a change to the Constitution is an amendment unless the text of the provision seeks to alter the basic governmental framework of the state. While that sounds simple enough, the difficulty is that Court has had difficulty differentiating between the two in practice.
The challengers of Prop 8 argue that the measure constitutes a revision because it attempts to take away the fundamental right to marry from a group protected from discrimination under the equal protection clause of the California Constitution. Moreover, same-sex marriage advocates point out that Prop 8 utilizes the exact same language as Family Code section 308.5, which was previously declared unconstitutional by the Court as violative of the California's equal protection clause. Indeed, in Cases, the Court held that sexual orientation was a suspect classification and that any laws treating people differently based on such was subject to a "strict scrutiny" analysis. The opponents of Prop 8 further argue that any attempt to so disenfranchise a minority group equals a per se alteration to the underlying framework of the state Constitution.
Supporters of Prop 8, on the other hand, claim that the Court has, in the past, upheld the right of the people to overturn the Court's constitutional rulings, pointing out that previous amendments to the constitution regarding such weighty matters as due process in criminal cases and the reinstatement of the death penalty were allowed to stand.
In his brief to the Court, Attorney General Brown determined that, while the Prop 8 opponents had failed to establish that Prop 8 was a constitutional revision, the initiative-amendment process did not include the right of the people to abrogate fundatmental constitutional rights without a compelling justification. Brown went on to say that he believes that Prop 8 lacks such a justification, not having been shown to be necessary for the health, protection, or welfare of the people of California. Brown further argued that, if Prop 8 was allowed to stand, it should apply on prospectively, as there was no indication in the text of the measure that Prop 8 was intended to apply retroactively.
Adding to the confusion regarding how Prop 8 should be treated is the large number of amicus briefs submitted in this case. By the deadline of January 15, 2009, at least 36 amicus briefs had been submitted to the Court, from such groups as the California Labor Federation, the National League of Women Voters, the United Conference of Catholic Bishops, the Union of Orthodox Congregations, and Google.
The California Supreme Court expects to begin hearing arguments on Prop 8 in March.
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