Legal News

Ted and Dave?s Excellent Prop 8 Adventure

By Ashby Jones

Tuesday was a bad day for opponents of Proposition 8 for an obvious reason: the California Supreme Court upheld the ballot initiative, passed last November by California voters and which bans same-sex marriage in the Golden State.

But once these same opponents finish reading the court’s 136-page decision and digesting what the justices had to say about revisions to the state constitution, they perhaps had even more reason to feel chagrined.

This LA Times article lays out the issue well.

At issue in the case was whether Proposition 8 was properly defined as a constitutional revision or a constitutional amendment. The former requires an act of the legislature; the latter can be effected by a popular vote. In describing Proposition 8’s “limited effect,” the majority said that simply reserving the term “marriage” for opposite-sex couples “does not have a substantial, or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment.” [emphasis in original]. In other words, in order for a constitutional change to be deemed a revision — and therefore require legislative action — the change need alter the “governmental plan or framework of California.”

And it’s this definition that has same-sex marriage supporters worried: “It leaves us to the kindness of strangers,” said Jon W. Davidson, legal director of Lambda Legal, a gay rights organization. “They could take away anything.”

UC Davis law professor Vikram Amar agreed, telling the LAT that the court defined an illegal revision as a measure that changes the structure of government, not one that takes away individual rights. “It is hard to see how any repeal of any person’s liberty or property would affect the structure of government” and be deemed an improper revision, Amar said.

One ray of light for Prop. 8 opponents, perhaps: Boies, Schiller & Flexner’s David Boies and Gibson Dunn’s Ted Olson have teamed up and will today announce the filing of a suit mounting a federal challenge to Prop. 8. The suit calls for an injunction against Proposition 8 until the case is resolved, which would immediately reinstate marriage rights for same sex couples. We’ll link to the complaint once we get our mitts on it.

Photo: AP

Full post as published by Law Blog - WSJ.com on May 27, 2009 (boomark / email).