California Supreme Court Agrees To Hear Challenge To Prop 8

The voters have spoken but as we know laws and initiatives passed by the people or their elected representatives are really just first drafts. Nothing is final until the judges have their say.

Gay rights advocates argue that the measure was a constitutional revision, instead of a more limited amendment. A revision of the state Constitution can be placed before the voters only by a two-thirds vote of the Legislature or a constitutional convention. Proposition 8 reached the ballot after a signature drive.

In addition to asking for more written arguments on the revision question and the status of existing marriages, the court told lawyers to address whether Proposition 8 violated the separation of powers doctrine under the California Constitution.

Gay rights lawyers have argued that the measure took away the ability of California's courts to ensure equal protection for minorities who have historically suffered discrimination.

The lawsuits also contend that the initiative was a constitutional revision because it denied equal protection to a minority group and eviscerated a key constitutional guarantee. Supporters of Proposition 8 counter that it merely amended the Constitution by restoring a traditional definition of marriage.

The court's previous rulings on similar lawsuits have been mixed. The court has upheld at least six initiatives and rejected only two that were challenged as illegal revisions.

Eugene Volokh takes a look at the 'revision' v. 'amendment' question and thinks that Prop 8 should survive the challenge on that issue at least. Of course that presupposes a willingness of the judges to look at the law and not simply impose their previously expressed opinions.

Arguments will be in March and possibly giving some hope to supporters, the court refused to issue a stay meaning Prop 8's ban on same sex marriages will stand until the court issues its decision.

posted by DrewM. at 12:00 PM

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