Revising Prop. 8 to Oblivion

In California, the people have spoken or screamed, depending on how you look at marriage equality. The victory of Proposition 8 was, as the expression goes, a redefinition of marriage there. It reads Only marriage between a man and a woman is valid or recognized in California. Now the suits hit the fan and key questions are:

• What happens to about 18,000 same-sex marriages there?
• Can the simple ballot initiative make such a substantial state constitutional change bypassing the legislature?

Many on the pro-Prop. 8 side say they want existing SS marriages dissolved or converted to domestic partnerships, which California also permits. During the summer, state Attorney General Jerry Brown said that if this passed, it would only be prospective and not affect existing marriages. That may well end up in court too.

The real battle seems to be shaping up over a finer point of law — does this new amendment represent a major revision to the state constitution? If so, it would have to be approved by two-thirds of both houses of the legislature.

Already, 44 legislators (of 120) and several civil-rights groups are joining the suits to overturn Prop. 8. That includes so far:

• The Anti-Defamation League
• The Asian Law Caucus
• Bet Tzedek Legal Services
• Japanese American Citizens League
• The Bar Association of San Francisco
• Legal Aid Society-Employment Law Center
• The Lawyers Committee for Civil Rights of the San Francisco Bay Area
• The Impact Fund

NYU Law Professor Arthur S. Leonard recapped the initial suits to overturn the vote here. The yes-on-8 forces have taken the tack that this was a legitimate and simple ballot initiative resulting in an amendment that tweaked the constitution. Much as those favoring the 2000 Proposition 22, they take a the-people-have-spoken position. Prop. 22 was a change in family law that defined marriage; it tried to prevent SSM. It was what the state Supreme Court overruled as unconstitutional earlier this year to allow SSM.

As Leonard puts it:

If the California Supreme Court decides that Proposition 8 enacts an "amendment," as that term is understood in California law, then it is valid for purposes of the state constitution. But if the Court decides that it is actually a "revision," then its enactment through the initiative process is unauthorized and it will be stricken from the state constitution by the Court.

Three of the suits share the view that Prop. 8 represents a revision. In light of the May 15th ruling legalizing SSM, they state that the court declared marriage is a fundamental right and sexual orientation is a suspect class. Therefore, "the arguments put forward in support of the traditional definition of marriage were not weighty enough to overcome the claim of gay Californians to marriage equality."

All groups are likely to weigh in with briefs, letters, arguments and supporting documents. This could take some time even to determine whether the state high court will be able to decide.