From the LA Times
The California Supreme Court announced today that it will hear oral arguments on the legality of the state’s gay marriage ban on March 5.
The hearing is one of the most anticipated in the court’s history.
Supporters and opponents of Proposition 8 will make their case about whether the measure should be invalidated. Pro-gay marriage groups filed a lawsuit after the November election, saying the gay marriage ban violated the state Constitution.
Atty. Gen. Jerry Brown at first said he would defend Proposition 8, but then he changed his mind and argued that it was unconstitutional. Backers of the measure have filed briefs supporting the ban.
According to the court, justices will consider three issues:
— Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
— Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
— If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
On a first glance my admittedly armchair opinions would be
1. Yes, it was a revision and is accordingly invalid. For those who may not be in to judicial issues like this, according to the California Constitution there are two kinds of changes to the document.
An amendment is just a minor adjustment, something that changes part of the document but does not alter its overall tenor and does not make a fundamental change in a key right. It can be put on the ballot either via the legislature or by petition.
On the other hand a revision is a major change, one that does alter the tenor of the document and/or changes or denies a fundamental right. A revision must be passed through the legislature first, it cannot be put on the ballot by petition
In this case I think that Proposition 8 is an attempt at a revision. The ruling by the California Supreme Court established a fundamental right to marriage for same sex couples. If you were to make a list of the top ten most important rights people have, the right to marry would be somewhere on the list.
Since Proposition 8 altered a fundamental right as defined by the California Supreme Court I do think it should be struck down on those grounds.
2. This one is not as clear as in the case of #1. In this case they are arguing that because deciding fundamental rights of law is the role of the judiciary it was improper for it to be done by the voters. On the one hand it seems to me that having the voters decide what the law means is the ultimate form of democracy.
On the other hand we do have to respect the rights of the minority (IE a majority of voters in Los Angeles and San Francisco could not vote to make the other counties pay all of the taxes).
I am honestly going to have to ponder this one a bit longer before I would decide which way to go, although since I would strike 8 down on the first argument, the decision is somewhat academic.
3. I would have to say thatt he marriages prior to Prop 8 would stand since it is generally illegal to retroactively make things illegal. It would be like passing a law that says just because you paid for the house yesterday doesn’t mean you get to keep it today.
Opinions should be issued by June 30th
Comment away gang.