Proposition 8: A Glimmer, A Glimpse, of Hope

11/06/2008 By Shawn Burns

Acting with a swiftness that suggests, to the ironically-minded, a Boy Scout’s preparedness, the ACLU very quickly filed a petition with the court today that provides a small ray of hope to the thousands of same-sex couples in California who face having their right to marry stripped from them by a ballot proposition amending the California Constitution.

The issue? Proposition 8 was an inappropriate vehicle for eliminating the right to marry. Instead of an amendment, approved by a majority of the voting population, the ACLU alleges that what is required to eliminate the right of same-sex couples to marry is a revision.

What the hell is the difference between an amendment and a revision and why does it matter?

The ACLU petition asserts that Proposition 8 "would work a dramatic, substantive change to our Constitution’s "underlying principles" of individual equality…[prohibiting] California courts from exercising their core, traditional, constitutional role of protecting the established equality rights of a minority defined by a suspect classification…[effecting] a far reaching change in the nature of our basic governmental plan.""

This, the ACLU thinks, is enough to call what Prop 8 does to the Constitution a "revision" rather than a mere amendment. That is, it does more than insert a line of text that only affects the laws of the state: the insertion of that text changes the relationship of core components of the makeup of the state, in particular the courts’ ability to apply the principle of equal protection to an identifiable minority group. To make this change is a revision, not an amendment.

A revision, according to Article 18 of the California Constitution requires a 2/3 vote of the legislature just to call for approval of a convention of electors (voters) to decide the fate of the revision. An amendment, according to the same article, may be enacted by the electors themselves by simple initiative (like Proposition 8). That is, while an amendment only takes one act of decision-making, a revision requires three (legislature, voters, convention).

If the argument is successful then Prop 8 is dead because it was never the right vehicle for the elimination of the right of same-sex couples to marry.

Ironically, had Prop 8 been proposed years ago, instead of the overturned Prop 22 (which was a simple law and not an amendment) then this challenge to the Proposition might not even exist. It is because marriage is recognized by the courts as a fundamental right, and because it was recently ruled to apply to same-sex couples as well as heterosexual couples, that the bold argument that what Prop 8 attempts to do is revise the Constitution can even be made. Before the courts’ overturned Prop 22 it was not nearly as evident that denying same-sex couples the right to marry was denying them a fundamental right. It is that judicial history now that leaves the door open for the challenge from the ACLU.

Backpacking Dad is not an attorney but he sure has seen a lot of Law and Order episodes.