Does a Court Ruling on Prop 8 Undercut the Democratic Process?

After months of anxious anticipation, the California Supreme Court will listen to hearings and rule on the validity of Proposition 8, the ban on same-sex marriage which was passed by popular vote in the November 2008 election. At stake are the marriage of 18,000 same-sex couples who wed after the court legalized gay marriage in June 2008.

Gay rights activists and the City of San Francisco are arguing that because the Court had ruled in favor of gay marriage, Proposition 8 constitutes "illegal revision of the state Constitution," the Los Angeles Times reported in February. State Attorney General Jerry Brown intends to claim that the measure threatens "inalienable rights" without justified reason. Legal experts say that neither of these arguments is likely to be accepted by the court.

Constitutional law experts told the Associated Press that is highly unusual for a court to hear a case of this kind. This would be the first instance of a court overturning a measure passed by popular vote; some Prop 8 supporters argue that the California Supreme Court’s decision to hear the case threatens the principle of direct democracy. However, one law professor pointed out that Prop 8 was in itself an unprecedented measure. Proposition 8 was also the first popular vote challenge to a Supreme Court ruling designed to protect the rights of a minority group.

Those in favor of Proposition 8 say that overturning it would violate 150 years of legal precedent; those who are challenging Prop 8 have several points to argue before the court. The questions raised by the opposition will cover “the amendment process, the effect of Proposition 8 on same-sex marriages before the election, and on whether the amendment violated the state’s separation-of-powers doctrine,” Reuters news service reported.

Anti-ban lawyers will claim that Proposition 8 did not follow legal procedure. The Wall Street Journal Law Blog says that there are two ways to change a state’s constitution: revisions and amendments. Technically, Proposition 8 was an amendment, but lawyers will argue that such a significant change to legislation should be categorized as a revision. If it’s considered a revision, then the law can only be changed by the legislature, not by a majority vote.

Pundit Stephen Bainbridge noted that the revision vs. amendment challenge was made before the ban appeared on the ballot. The Supreme Court chose not to make any decisions about this challenge prior to Election Day. In Bainbridge’s opinion Proposition 8 really does not meet the criteria that would make it a revision and not an amendment; legally, the change is not substantial enough.

But advocates for gay marriage say that the distinguishing factor of a revision is that it alters the Constitution’s “underlying principles or structure,” reports The Orange County Register. They argue that Prop 8 does exactly that: it takes away rights from a minority via a majority vote, violating the "equal protection" clause.

Those in favor of upholding Proposition 8 refer to Proposition 17 in 1972 as historical precedent. In that case, the state Supreme Court had ruled that the death penalty was cruel and unusual punishment; voters passed Proposition 17, which amended the constitution to say that it was not. Opponents sued to prevent the change, but failed.

Prop 8 supporters say that if the measure is overturned, it will be a dangerous blow to democracy. The president of the Pacific Justice Institute, a nonprofit legal defense organization specializing in religious freedom, said that if the courts overturned the measure it would be "one of the most egregious power grabs in California history."