Legal Recourse for California Proposition 8

Van and PhillipIt looks as if California Proposition 8 is passing. Sigh. I don’t normally write about politics, but as a gay man, happily partnered with another man for almost 11 years now (my dear Phillip), I feel a need to say something. As you may know, Proposition 8 aims to amend the state constitution to say that “Only marriage between a man and a woman is valid or recognized in California”, thus eliminating the right of same-sex couples to marry in California.

Changing the state constitution may not be so easy, however. There are only two ways to amend the state constitution, and from what I can tell, Prop 8
should have been done as a “revision”, not an “amendment”. A revision requires a 2/3 vote of the legislature, or a constitutional convention, to start a ballot initiative that will change the state constitution. It’s not supposed to be so easy to make important changes, and Prop. 8 did not follow the proper process. Prop. 8 went with a signatures-only start, which is only appropriate for a minor change (ie. an amendment).

The California Supreme Court granted wide-ranging legal protection to our class this year, in clear legal wording that goes well beyond the single right that Proposition 8 addresses. Among other things, they said:

An individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights.

The California Supreme Court will get a chance to rule on this amendment, and it’s likely they will consider the elimination of rights for a protected class to be a major change to the state constitution, i.e. what is legally referred to as a revision, which would have required a 2/3 vote of the State Legislature before it could even be considered for a public vote. In this way, the court can rule that Prop. 8 is invalid.

For example, what if Prop. 8 had said “Only marriage between a WHITE man and WHITE woman is recognized in the State of California”? Naturally, these days, everyone understands that would be absurd. But, the court will likely treat Prop. 8 the same way that they would treat an amendment that took marriage rights from couples based solely on race. Race = gender = sexual orientation… all are now classes of individuals protected from discrimination, according to the highest court in California. Removing rights based on race would certainly be seen as a major change in the state constitution, and so will removing rights based on sexual orientation. With the court on our side, we have already won, our opponents just can’t see it yet.

And keep in mind that Prop 8 had a much smaller margin of victory than Prop 22 did 8 years ago (it won by 66% back then), and a 10%+ change in public opinion in 8 years is really quite amazing and represents a fast-moving trend. Naturally we will not give up this fight, and if amending the state constitution is so simple, it’s just a matter of time before our young folks (bless ‘em), reverse this some day with a new inclusive, right-granting initiative.

The year 2008 will still stand out as a year of progress for us. Our enemies are hanging on desperately, but despite their efforts, many of us are married already, our community is energized once again, and they have only been able to prolong the inevitable by another couple of years, at best.

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