There are lots of folks who are worried about the California Supreme Court overturning the recently passed Proposition 8, which amended the state constitution to ban gay marriage. The lawsuits seeking that result (which have been filed by, among others, the United Church of Christ and the Episcopal bishops of California) are using the argument that Prop 8 wasn’t an amendment, but a revision of the constitution, and therefore required legislative approval before it could go on the ballot. Lawyer John Hinderaker of the Powerline blog has taken a look at the arguments, and you can tell where he’s going by the title of his post: “Worst Lawsuit Ever?”

The problem with that argument is California’s Constitution uses the term “revise” only in connection with establishment of a constitutional convention that would have broad authority to change the Constitution. An amendment is anything else:

SEC. 2. The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution. If the majority vote yes on that question, within 6 months the Legislature shall provide for the convention. Delegates to a constitutional convention shall be voters elected from districts as nearly equal in population as may be practicable.

SEC. 3. The electors may amend the Constitution by initiative.

I don’t see how it can seriously be argued that Proposition 8 is something other than an “amendment,” and, at least as far as I’ve gotten in Petitioners’ pleadings, they don’t make a serious argument. What the Petitioners do say is that the right to homosexual marriage is so “fundamental” that taking it away can only be viewed as a “revision” requiring legislative enactment. But this argument is completely unsupported by the language of the Constitution.

Moreover, the “right” to homosexual marriage in California dates only to May 15, 2008, when it was created by a 4-3 vote of the California Supreme Court. Proposition 8 seeks to reverse the effect of that decision. Thus, if the right to homosexual marriage is “fundamental,” it is hard to imagine a right that wouldn’t be.

I’m no lawyer, but I can read English, and Hinderaker’s argument certainly makes sense to me. This is a desperation move on the part of the opponents, who having been unable to make their case to the electorate naturally fall back on the courts, where they have an easier time finding support. If Hinderaker is correct in his reading, the California Supremes would have to engage in a raw exercise of power to overturn the election result, essentially deciding for the opponents of Prop 8 because that’s the political outcome that they want, and the law be hanged. But it’s not like they haven’t done that before.

UPDATE: I should have included this before I posted. It’s from the UCC press release linked above, and I found it, shall we say, amusing:

“California’s constitutional right of equal protection is sacrosanct,” the legal challenge reads in its introduction. “Not even the electorate can take it away selectively – at least not without a two-thirds vote of the legislature or a constitutional convention. This writ petition seeks to enforce that basic principle.”

So the right is “sacrosanct”–a word defined by Merriam-Webster as “most sacred or holy, inviolable”; or “treated as if holy, immune from criticism or violation,” yet if you can get two-thirds of the state legislature to agree to abolish it or alter it, that’s fine by the petitioners. I’d love to know if they’d have made that argument if the California legislature was 67% conservatives.

Duh.

Advertisement
Privacy Settings