Proposition 8 Update

California’s Proposition 8, which defines marriage as the union between one man and one woman, is under a barrage of protest and legal scrutiny. As I mentioned earlier this week, it will likely come before the state Supreme Court, who will rule on its constitutionality.

But, you might object, isn’t it a constitutional amendment? This article from the San Francisco Chronicle explains the dispute well. Essentially, CA has two categories of changes for their state constitution: revisions and amendments. Although the constitution itself does not spell out the difference (and seems, at least to the untrained eye, to use the terms appositively), an 1894 ruling put the distinction into play, saying that revisions may only be introduced at a constitutional convention. Subsequently, revisions were allowed to be proposed by a direct two-thirds vote of the legislature, and then submitted to the electorate. Amendments, as the constitution makes clear, may be proposed either by a petition of registered voters or by a two-thirds legislative vote. In short, if Proposition 8 is deemed a revision , then its promoters were mis-marketing it and bypassing the proper legislative procedure.

Which prompts the question: What counts as a revision? A “drastic and far-reaching change in the nature and operation of our governmental structure,” said a 1978 court decision; a revision is a “substantial alteration of the entire constitution, rather than to a less extensive change of one or more of its provisions.” Examples? There are only two: A proposal requiring California courts to follow federal rather than state standards was judged to “unduly restricts judicial power . . . in a way which severely limits the independent force and effect of the California Constitution,” and an initiative to rewrite fifteen of the twenty-one sections of the constitution.

Historically and legally, the case for the constitutionality of Proposition 8 is solid:

“By deliberately stripping lesbian and gay people of a fundamental right, Proposition 8 cuts directly at the very notion of equal personhood” and leaves judges powerless to intervene, lawyers for a group of same-sex couples said in a court filing.

Although legal commentators are divided, most appear to consider the argument a longshot.

“It’s very hard to argue that this narrowly written constitutional amendment changes the fundamentals of our state government,” said Ethan Leib, a constitutional law professor at UC Hastings in San Francisco and a supporter of same-sex marriage.

The reason that California has a “flexible and inviting (constitutional) amendment procedure,” he said, “is that the people, rather than the judges, get to say what the Constitution means.” . . .

Another Hastings professor, Calvin Massey, invoked the court’s 1978 ruling upholding the death penalty as a reason that the Prop. 8 challenge should fail.

“I can’t think of any more fundamental right than to not have my government put me to death,” he said. “That was found to be an amendment, not a revision.”

Historically and legally, the case would seem solid. But, as the history of law proves, that doesn’t always matter.