Long Road Still Ahead for California's Proposition 8
Finding Dulcinea
by Rachel Balik
November 28, 2008


The Supreme Court has agreed to hear challenges to Proposition 8 in the future, but what are the technicalities of the legal battle?

The Legal Challenges to Proposition 8

Those in favor of Proposition 8 say that overturning it would violate 150 years of legal precedent, but those who are challenging the ban have numerous reasons for contesting its legality. The California Supreme Court has agreed to hear oral arguments for and against the ban sometime before March 2009. The questions raised by the opposition will be “the amendment process, the effect of Proposition 8 on same-sex marriages before the election, and on whether the amendment violated the state’s separation-of-powers doctrine,” Reuters news service reported.

The biggest challenge anti-ban lawyers will make is that Proposition 8 did not follow legal procedure. The Wall Street Journal Law Blog says that there are two ways to change a state’s constitution: revisions and amendments. Technically, Proposition 8 was an amendment, but lawyers will argue that such a significant change to legislation should be categorized as a revision. If it’s considered a revision, then the law can only be changed by the legislature, not by a majority vote.

Opponents will also note that when the Supreme Court ruled to overturn the gay marriage ban in May, it cited the state’s equal-protection clause, stating that a ban on gay marriage denied equal rights to all citizens. Proposition 8 signifies that bans on gay marriage are now allowed, and does not address the problem that bans still violate this clause as indicated by the Supreme Court.

The justices are probably divided on how to resolve the case, UCLA law professor Brad Sears told the Los Angeles Times. Their decision to delay hearings until as late as March could indicate that they want time to reflect. Although gay rights activists were hoping that the court would put a stay on the law until they had heard the cases, the court has not elected to do so. That means that there will be no more gay marriages in California until the oral arguments are heard.

However, the status of same-sex marriages already in existence is a pressing concern for many. Justice Joyce L. Kennard reportedly voted not to hear the case at all, but she did agree to hear a case evaluating marriages instituted before the ban was in place. Until the court rules, the estimated 18,000 same-sex marriages are still valid.

Opinion and Analysis: Is there a valid case?

Pundit Stephen Bainbridge noted that the revision vs. amendment challenge was made before the ban appeared on the ballot. The Supreme Court chose not to make any decisions about this challenge prior to Election Day. But Bainbridge notes that Proposition 8 really does not meet the criteria that would make it a revision and not an amendment. The argument that the ban violates the equal protection clause is far stronger.

But advocates for gay marriage say that the distinguishing factor of a revision is that it alters the Constitution’s “underlying principles or structure,” reports The Orange County Register. Opponents also argue that taking away rights from a minority via a majority vote is unconstitutional.

Those in favor of upholding Proposition 8 refer to Proposition 17 in 1972 as historical precedent. Although the state Supreme Court had ruled that the death penalty was cruel and unusual punishment, Proposition 17 served to amend the constitution to say that it was not. Opponents sued, but failed.

The Box Turtle Bulletin blog thinks Justice Kennard’s vote against hearing the cases may be a bad sign. Kennard was initially a consistent supporter of gay marriage but her dissenting vote could mean that she “does not think that the case has merit.”

In The Huffington Post, Rob Epstein says we ought to follow the example of Harvey Milk, who was instrumental in preventing Proposition 6 from passing in 1978. Milk engaged with voters on a community level, and Epstein believes that interacting with people gives voters a clearer picture of what their votes mean. “In light of the passage of Proposition 8, Harvey's message of thirty years ago remains as vital today as it was then,” Epstein wrote.

Meanwhile, SurveyUSA reports that in a poll, eight percent of those who initially voted for Proposition 8 say that protests have successfully changed their minds: they would now vote against the ban. However, a far more substantial 90 percent of voters say they’re not swayed and still want to see gay marriage banned in the state. But SurveyUSA also reports that 59 percent of Californians believe that same-sex marriages already in existence should be upheld.


Reference Link: The California Supreme Court

The California Supreme Court has made many of the Proposition 8 case documents available for public viewing on its Web site. Documents pertaining to the history of marriage cases are also accessible.