Thursday, November 20, 2008

Reconsidering Prop 8

Speaking of Prop 8 (see below), the California State Supreme Court has agreed to review the amendment.

The California Supreme Court voted 6 to 1 on Wednesday to review legal challenges to Proposition 8, the voter initiative that restored a ban on same-sex marriage, but refused to permit gay weddings to resume pending a final decision.

The court may hold a hearing on the lawsuits as early as March, a timetable that scholars said was swift considering the complexity and importance of the legal issues.

The court’s action, taken during a closed conference, suggested that the court wants to resolve all of the legal issues surrounding Proposition 8, including the fate of existing gay marriages, in a single ruling.

It also indicated that at least one of the court’s seven members, Justice Carlos R. Moreno, may be leaning in favor of overturning the measure. Moreno, who joined the state high court’s 4-3 ruling in May to strike down a state ban on same-sex marriage, was the only justice to support granting a stay of the proposition.

In a move that puzzled some legal analysts, Justice Joyce L. Kennard, a generally reliable supporter of gay rights, voted to deny review of the Proposition 8 challenges. The court gave no indication of her reasons but said she was willing to hear a separate case on the validity of existing gay marriages.

The question seems to revolve around a technicality: whether or not Prop 8 was a constitutional revision, which requires a 2/3 majority vote, or a limited amendment, which only needs a majority.

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 latter argument, the same one being trotted around by Mike Huckabee, is their attempt to polish a turd, and that’s why they fought so hard to keep the language muddled. But there is precedent for overturning Prop 8 on these grounds.

In 1966, the California Supreme Court struck down a 1964 initiative that would have permitted racial discrimination in housing. Voters had approved the measure, a repeal of a fair housing law, by a 2-to-1 margin. Opponents challenged it on equal protection grounds, not as a constitutional revision.

So there is hope. Frankly, I would prefer that we won this battle by winning the hearts and minds of the people, but who’s to say that this way — by making it abundantly clear that the rights of the minority cannot be subject to the whims of the majority — won’t make the point just as well.