California Supreme Court to Determine Constitutionality of Amendment to its Constitution

November 19, 2008

The voters of the state voted to amend the Constitution to ban same sex marriages and now the California Supreme Court is going to see if that decision by the people was Constitutional: The AP Reports:

California’s highest court agreed Wednesday to hear several legal challenges to the state’s new ban on same-sex marriage but refused to allow gay couples to resume marrying before it rules.

The California Supreme Court accepted three lawsuits seeking to nullify Proposition 8, a voter-approved constitutional amendment that overruled the court’s decision in May that legalized gay marriage.

All three cases claim the measure abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.


The court directed Brown and lawyers for the Yes on 8 campaign to submit their arguments for why the ballot initiative should not be nullified by Dec. 19. It said lawyers for the plaintiffs, who include same-sex couples who did not wed before the election, must respond before Jan. 5. Oral arguments could be scheduled as early as March, according to court spokeswoman Lynn Holton.


But they also agreed that the cases present the court’s seven justices – six of whom voted to review the challenges – with complex questions that have few precedents in state case law.

Depending on how the California Supreme Court treats this, we may be seeing gay marriage get to the Supreme Court. By “depending,” I mean that the California Supreme Court has to consider very carefully which cases it is going to use in its decision. If the Supreme Court interprets federal law such as Romer v. Evans or Lawrence v. Texas, we will see a state interpreting shaky federal precedents which is pretty much a green light straight to the Supreme Court.

If oral arguments occur in March and we assume that PE-BHO won’t have to replace Justice Stevens or Breyer until the end of the year, we might actually ssee him put in a position where he will have to moderate his choice for next justice and maybe skip Judge Sotomayor.  Gay marriage as a national issue will not be goo for PE-BHO, especially among African-Americans. In California, African-Americans, who came out in numbers greater than ever before due to the presence of BHO on the ballot, were the deciding votes in getting Prop 8 passed.

UPDATE: The professors have an interesting take regarding whether or not the initiative itself to ban gay marriage was legal in the first place. 



  1. Here is just another example of the losers throwing a temper tantrum like a bunch of spoilt brats. They have civil rights why do they have to push their beliefs down our throats! My gay friends say this group makes them all look bad. I would also like to know why our votes mean nothing anymore.
    Get a grip and do something productive with your lives that isn’t self serving. You might actually make a difference in the world.

  2. I read the UPDATE link and did some research of my own. There is no way Prop 8 was a revision to the Constitution, for the following reasons:

    It was mentioned that a revision is both a qualitative and a quantitative change to the as-written-Constitution.

    1-Quantatative: Prop 8 only requires the edition of 14 words to the California Constitution

    2-Qualitative: This issue is much more difficult. The opponents of Prop 8 make the argument that Prop 8 is dicrimination of a “fundamental right” to a “suspect class” of citizens; because the “change” is so important to the Constitution, it should only be revised through legislative avenues.

    I cannot find the case, but marriage in California has been deemed a fundamental right (Loving v. VA) UNLESS stated otherwise. The people of California stated otherwise on November 4th by a 52/48 margin. In other words marriage is a fundamental right women and men who marry the opposite sex.

    I have never found a case which said homosexuals as a class are suspect. The closest the Supreme Court has come to calling homosexuals a suspect class was in Romer v. Evans (the CO Prop II initiative). In that case the Supreme court told CO that it was a violation of due process to write a law which disallowed legislation to sprcifically protect homosexuals (man is that a convoluded sentence). Eventhough the law was overturned, the Supreme Court admitted to using a rational basis test; most scholars suggest that the Supreme Court used some sort of scrutiny between rational basis and intermediate scrutiny. Rational basis judicial review has always been reserved for classes of people which are not suspect in the eyes of the judiciary. However, the opponents of Prop 8may make the argument that homosexuals are a “political unpopular group” like the hippies were in US Dept. of Agriculture v. Moreno. However, with the amount of legislation which has passed concerning hate crimes for beating up homosexuals etc. I do not know how that argument could be made.

    Homosexuals are not a suspect class as they argue because of very recent precedent cases in which the Supreme Court used a rational basis test when scrutinizing laws regarding homosexuals. (Romer and Lawrence).

    Prop 8 is an amendment because it is both a minor quantatative and qualitative change to the California Constitution; marriage is only fundamental unless otherwise stated, and homosexyuals are not a suspect class.

    Either way, this is going to be a crazy year or so.

  3. I think the fundamental problem is that it should take much more than a majority vote to amend the state constitution. It takes 3/4 of congress and ratification by 3/4 of the states to amend the United States Constitution and with good reason. Allowing a simple majority renders the Constitution totally ineffective at it’s primary purpose: protecting the fundamental rights of all people from the will of the majority.

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