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The debates surrounding Proposition 8—California’s constitutional amendment declaring marriage to be between one man and one woman—will reach a head this morning as the state’s Supreme Court convenes to discuss the proposition’s constitutionality. In short, the proposition approved this fall by 52 percent of CA voters, in a normal democratic process, is in danger of being overturned by a court decision on the argument that it violates the court’s previous 4-3 decision to permit gay marriage. This earlier ruling (the argument goes), sanctioned marriage as a universal human right which no majority can thwart and no amendment can overturn.

Of course—but of course ignored—no Prop-8 supporter is denying anyone the right to enter into a legal marriage. Rather, supporters are safeguarding the long-standing legal and cultural understanding of this institution, recently called into question. Every right needs definitions (Can I marry my mother? Can I marry my pet? Can I marry myself?), and defining a basic right is a far cry from denying it.

But to hear media accounts of legal rights, a particular definition of marriage is assumed, and assumed to be fixed, while that definition is precisely what is in question. Today, the proposition is being challenged on the basis that it was improperly posed and passed as an amendment, while in fact—by supposedly restricting minority rights—it falls into the more radical category of constitutional revisions, which may not be introduced by ballot initiative. (See previous discussion here .) Additionally, some opponents circuitously claim that Prop 8, by reversing last summer’s court decision, limits judicial authority and hence violates constitutional separation of powers. It’s a strange notion of democracy.

Oral hearings on the validity of Proposition 8 as a constitutional amendment will be held this morning, with a written decision issued by the seven judges within ninety days.

Watch the live Supreme Court hearings today (9 am PST, 12 pm EST), shown online here .



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