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From the instructive, if often sobering, weekly newsletter of the Institute for Marriage and Public Policy come these two news stories : Proposition 8, California’s newly passed constitutional amendment defining marriage as the union between one man and one woman, is being fiercely challenged by a vocal minority, determined to overrule the recent democratic vote.

“Love Not H8” shout the signs of protesters, who have been urged by the formerly ambivalent Gov. Schwarzenegger to “never give up” and to “be on it and on it until they get it done.”

Enter the California Supreme Court, with its habit of “undoing” (the governor’s preferred term) voter-approved propositions. In its decision last May, the court deemed unconstitutional a ballot measure similar to Proposition 8, which had upheld traditional marriage. The difference now is that, as an amendment to the constitution, Proposition 8 cannot be deemed contrary to it. Or so one would think:

Three lawsuits, ready since the initiative was green-lighted for the November ballot, have been filed with the California Supreme Court asking it to stop the state from enforcing the proposition until the court has decided on its constitutionality. The suits aim to undo the measure on grounds that, under the equal protection clause in the state’s constitution, a majority of voters are not allowed to revoke equal rights intended for everybody . . . .

Legal experts say it is hard to predict how the California Supreme Court will view the proposition because there is little case law to guide it. Judges coming up for reelection may balk at going against voters, and the initiative is unlike anything it has dealt with . . . .

“We have this track record in California of holding our justices accountable to the popular will,” said Vikram Amar, a law professor at the University of California at Davis. “As a predictive matter, I just don’t see this challenge as likely to prevail.”

David B. Cruz, a law professor at the University of Southern California in Los Angeles, disagreed. He said the proposition allows a bare majority to take away a fundamental right from a minority group entitled to the greatest judicial protection.

“It would cut the courts out of the loop and not leave them to play their role, their traditional role of protecting the minority,” he said.

Having spent the last hour with the CA constitution, especially its articles on judicial power , constitutional amendments , and the Declaration of Rights , I have yet to discover where Cruz finds or grounds his theory. “The electors may amend the Constitution by initiative,” reads Article 18, and “a proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election.”

Nary a mention of the court.



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