Proposition 8 Arguments Seem To Favor Supporters

Arguments were held today in the California Supreme Court regarding the validity of Proposition 8. I had planned to watch them but was distracted by work issues so I have had to rely on summaries. Those summaries do not fill me, as a strong opponent of Proposition 8, with confidence though given the strength of the arguments I have read would seem to favor those who oppose the initiative.

At the risk of getting to deep into the legal issues I would like to take a little time to cover the major issue at hand in the arguments over Proposition 8. Under the California Constitution there are two ways you can amend the document. The first is a straight up amendment which can be placed on the ballot either by the legislature or by ballot petitions. The second is a revision which can only be placed on the ballot by the legislature. Both methods then require a majority approval from voters.

The difference between the two methods has to do with what the change is intended to do. An amendment is a basic change to the document, one which obviously alters the document but does not do so in a major way. A revision is where they make a change to a fundamental right, something key to the document and the rights of the people.

For example if they wanted to change the minimum age to be Governor that would probably be an amendment while if they wanted to change it from a one person office to a two person position then that would likely be a revision.

When it comes to Proposition 8 I think we pretty clearly had a revision. Case law at both the state and federal level is quite clear on the position that the right to marry is a fundamental right. Whether you agreed with the Supreme Court ruling or not the fact is that they granted the right to same sex couples, and thus to take that right away is a revision.

When it comes to the case at hand, the language of the media stories as well as those of the justices seem to lean towards rejecting this idea though the arguments made do not seem to support this view. Those who spoke in favor of overturning Proposition 8 made arguments similar to those I made above, though obviously with much greater eloquence and intelligence. Those who spoke against overturning the ballot initiative did not seem to address the revision argument at all, instead they relied on a viewpoint that ‘the voters can do whatever they feel like’.

In fact Kenneth Starr (yeah that Ken Starr) made the rather bold suggestion that voters could, by a simple majority and without any legislative input, eliminate protections on free speech, eliminate all rights for gays and lesbians (or presumably for any minority group) simply because ‘the voters can do what they want to do’.

However the speculation from many media sources and legal commentators was that two of the justices who supported the right to same sex marriage last year were skeptical of the revision argument this time around. Justices George and Kennard seemed poised to change sides on the subject which would change the 4-3 vote in favor the last time to a 5-2 vote to uphold Proposition 8 this time

On the issue of marriages prior to the passage of Proposition 8 the speculation seemed to be that the 4-3 majority would stand in upholding these unions.

It is possible of course that the two justices could just be playing devil’s advocate and could still vote to strike down Proposition 8 but at this point I am not hopeful. However I would be quite pleased to be surprised in 90 days or so when the ruling will be handed down.