California Supreme Court to Hear Prop. 8 Challenges

November 19, 2008
Category: Politics

Does banning same-sex marriages in California require a Constitutional Amendment or Revision? That arcane distinction may be Prop. 8 opponents' best chance to have the recent voter-approved Amendment thrown out by the courts.

The California Supreme Court has agreed to hear three cases that claim the measure abridges the civil rights of a minority group by relying on a Constitutional Amendment rather than a Constitutional Revision. The California Constitution requires an Amendment to receive a simple majority vote to pass, while a Revision requires a vote of two-thirds of the California Legislature followed by a majority vote of the citizens.

The determination as to whether an Amendment or Revision is required hinges on whether the changes are narrow or broad. Prop. 8 added only 14 words to the Constitution and advocates say it deals only with the narrow issue of defining marriage, therefore requiring only an Amendment. Opponents say is is a Revision because Prop. 8 stripped a fundamental right (marriage) from a suspect minority class (gays and Lesbians). Does your brain hurt yet? Mine does.  If you want it to hurt even more, you can read the brief filed yesterday by several legal groups representing gay couples.

But that procedural distinction in California is what it might all come down to so you can bet lawyers on both sides are going to be parsing the Amendment vs. Revision argument in their briefs.

While the Supreme Court agreed to hear the challenges they refused to allow gay couples to continue marrying before the court rules. The court has given the Yes on 8 folks until Dec. 19 to submit their arguments and the plaintiffs must respond by Jan. 5. Oral arguments could begin as early as March.  When will they have a decision?  No one knows but the fight goes on.

Tags: Gay Marriage
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