By Andre Verdun
On November 19th, 2008 the California Supreme Court agreed to consider a legal challenge by several groups who are contesting the Constitutional validity of proposition 8 along with the legal status of same sex married couples that have entered into a legal marriage during the time same sex marriage was a recognized fundamental right.
Six of the seven Justices agreed to review the issue, at the urging of both the “Yes” and “No” on 8 campaigns, of whether or not Proposition 8 is an amendment to the California Constitution, as ProtectMarriage.com has insisted, or a revision to the Constitution as urged by the opponents Prop 8.
Joining in the argument that Prop 8 was an unconstitutional revision is, among others, the City and County of San Francisco, the City and County of Los Angeles, and 40 members of the California State Legislator who filed an amici brief (“friend of the court”) stating that Proposition 8 should be struck down as invalid because it usurped their power as a legislative body by bypassing their duty to vote on the Constitutional revision.
The campaign for No on Prop 8 sought the courts answer to this identical question in the weeks leading up to the election, but as expected, the Court denied review for lack of “justiceability”; that is, the case was not ripe for review.
The specific question before the court now is: Whether taking away a single fundamental right from a protected class of people is a revision to the California Constitution? This particular question has never been before the Supreme Court because the State of California has never sought before Proposition 8 to single out a classified group of people and change the Constitution to eviscerate a fundamental right.
While this specific question before the California Supreme Court is unique, the court has on 9 previous occasions ruled on the issue of “revision/amendment” analysis, of which in three cases the California Supreme Court overturned a Constitutional initiative as an illegal revision. Under Article XVIII of the California Constitution, an amendment is something that adds to the Constitution in a way that better carries out the purpose of the document within the lines of the original instrument, while a revision is something that changes the function or structure of the document or changes the basic governmental plan.
Therefore, the No on 8 campaign will argue that allowing the majority to simply vote away a fundamental right from a protected class of citizens changes directly the substantial entirety of the Constitution by not only altering the 5 provisions the Court said required them to grant same sex couples the fundamental right to marry in In Re: Marriage Cases, but also revises the entire “spirit” of the Constitution by stripping away the Courts duties to protect minority groups and protected citizens from discrimination against them by the Government and majority rule.
The Court will also determine the legal status of the marriages that took place before Proposition 8′s passage; however, because no brief has yet to be filed by either side as to the legal arguments for their respective side, one could only guess as to the legal arguments to be urged by either side. The “No on 8” group will likely argue that there are serous state and federal Constitutional issues with stripping away a vested liberty interest away from citizens without proper procedural due process of law, which requires formal proceedings before any liberty interest can be taken away. Also, the “No” campaign will argue that the marriage ban cannot be retroactive because there was no language in the Constitution that specifically applied it retroactively. The Yes Campaign will argue that the plain statement of Proposition 8 would require that no marriage, whether legal before to November 4th, 2008 or not, cannot be recognized as valid in the State of California.
All briefing is due by January 15th and the Court Press Secretary says that oral arguments could be held as early as March 2009.
