Unpacking the Challenges to Prop. 8 (WSJ Law Blog)
Nov 10th, 2008 by Viviane
. . .While the wording is simple, the situation has quickly become complicated. One question: What happens to those same-sex couples who married prior to the ruling? Legal challenges filed on Wednesday raised other questions: Was the referendum process itself lawful? Does the new language conflict with other parts of the state constitution? Separately, should Prop. 8 opponents have filed challenges saying the proposition violated the U.S. Constitution?
To help sort through some of these questions, we chatted with David Cruz, a constitutional law expert at the University of Southern California.
Hi David. Thanks for taking the time. Frankly, we’ve been confused by much of what’s happened since Tuesday. For starters, could you help us understand the grounds upon which Proposition 8 is being challenged in court?
Sure. The three lawsuits [here, here and here] challenge the procedure by which the referendum was passed. Under California law, there are two categories of changes that can be made to the state constitution: amendments and revisions. Amendments are more minor changes; revisions are larger in effect. This is important because each has its own process for taking effect — essentially different ways they go before the voters. An amendment can go in the form of a ballot initiative, which requires a certain number of signatures to make its way on. Constitutional revisions, however, have to have a two-thirds blessing from each house of the state legislature to make the ballot.
Now, the problem, at least from the point of view of Prop. 8 supporters, is that the legislature had previously indicated a willingness to support same-sex marriage. So the proposition’s supporters were unwilling to treat this [change] as a revision and send it to the legislature, opting instead to treat it as an amendment. The Prop. 8 opponents are arguing that this change actually constitutes a revision, not an amendment, and therefore needed to go through the legislature. (more. . .)
Tags: california, gay marriage, politics, proposition 8