The legal challenge to Proposition 8 has six lawsuits going for it, a host of influential friends of the court and the governor's opinion that the ban on same-sex marriage is unconstitutional. Whether the challenge has a chance is another matter.
In a recent meeting with The Times' editorial board, Gov. Arnold Schwarzenegger expressed confidence that the ban would be overturned because the California Supreme Court this year rejected an earlier ban, Proposition 22, as unconstitutional. The governor is being politically sensible but legally naive about this; the arguments against Proposition 8 hang on different precedents, issues and history.
For The Record
Los Angeles Times Saturday, November 22, 2008 Home Edition Main News Part A Page 22 Editorial pages Desk 1 inches; 36 words Type of Material: Correction
Proposition 8: A Thursday editorial on the legal challenge to Proposition 8 mentioned "the intensity of emotion roused by the measure's defeat." The measure passed; the emotional outcry was over the defeat of legal same-sex marriage.
The definition of marriage in the two initiatives is identical: "Only marriage between a man and a woman is valid or recognized in California." But Proposition 8 embeds that definition in the state Constitution, and it would defy reason for the court to hold that part of the Constitution is unconstitutional. In challenging the measure, the lawsuits argue that it is not in fact a constitutional amendment, which requires only a simple majority of the popular vote for passage, but rather a constitutional revision, a fundamental change in the Constitution that entails a far more complicated approval process.
The state Supreme Court has never been all that clear on what it considers revision, but it has set the bar high, finding only twice that supposed amendments actually revised the Constitution. Measures that insert sizable passages on multiple issues seem to fall into the "revision" category; in a 1948 case, the court struck down an amendment that would have added 21,000 words covering various topics to the 55,000-word Constitution.
Proposition 8 lies at the opposite end of the spectrum, a mere 14 words that strip one group of people (homosexual couples) of one right (legally recognized marriage). The California court rejected similar challenges to the death penalty and to Proposition 13, both of which, it ruled, were properly considered amendments, not revisions. And this year, the Oregon Court of Appeals rejected a suit on same-sex marriage much like the current lawsuits -- Oregon's Constitution has similar provisions on revision and equal protection. As a result, the legal challenge to Proposition 8 is generally seen as a long shot.
