California's Proposition 8 Headed to Court
Now that California voters have approved Proposition 8, which would change the state constitution to prohibit recognition of same sex marriages, opponents have sued, seeking to overturn the measure, reports the Modesto Bee. If you haven't been tracking this story closely, you may be questioning the basis for the lawsuit and wondering how a state court can overturn the constitution. Or perhaps you have more practical concerns, such as the impact of the amendment on marriages that took place following the California Supreme Court's June 2008 ruling striking down the ban on gay marriage.
Here you'll find an analysis, culled from the blawgosphere, of frequently asked questions related to Proposition 8.
How can a court overturn a constitutional amendment approved by the voters? Well, it can't -- unless the amendment is really a revision. As Orin Kerr explains at Volokh, the California Constitution provides that voters can amend the constitution by voter initiative. However, to revise the constitution, the legislature -- by a two-thirds vote of each house -- must first propose the revision and then submit it to voters. Those seeking to overturn Proposition 8 argue that it is a constitutional revision that should have passed through the legislature before appearing on the ballot.
Is Proposition 8 an amendment that could go directly to voters, or a revision, which required pre-approval by the legislature? Both Kerr and Professor Bainbridge take the position that Proposition 8 is an amendment and thus, was validly enacted. Bainbridge explains that an amendment is typically limited in scope, while a revision has a more far-reaching effect. Because Proposition 8 only changes an isolated and discrete section of the California Constitution, both Bainbridge and Kerr contend that the measure is in the nature of an amendment. On the other hand, if Proposition 8 is as limited in scope as its supporters contend, why is it generating so much controversy?
Assuming that Proposition 8 stands, what happens to gay marriages that have taken place in California since June 2008? Eugene Volokh analyzes three possible outcomes. First, Volokh suggests that these marriages will remain valid, though Volokh believes this is unlikely because the constitutional amendment precludes recognition of any same sex marriages, irrespective of when they took place. Alternatively, pre-Proposition 8 same-sex marriages may become domestic partnerships, a classification that would confer most of the benefits of marriage. Third, the legislature might step in with clarification that same sex-marriages would automatically convert into domestic partnerships. Kaimipono Wenger at Concurring Opinions discusses the conversion option in further detail.
Posted by Carolyn Elefant on November 6, 2008 at 02:26 PM | Permalink
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