Thursday, November 20, 2008


Ideology aside, I am shocked by the reaction to the passage of Prop 8 in California via the very democratic process of the people voting. If the outcome is not favorable to some, there are other democratic processes by which to change that. Recall that Prohibition was later repealed by a constitutional amendment when the wisdom of the earlier amendment was called into question. We live under the Rule of Law, which as Judge Smith of the 3d Circuit recently reminded students at the law school, is a law of rules.

There are rules that we follow. There are ways to amend constitutions and ways to repeal those amendments. I encourage all those raging about Prop 8 to gather their senses and accept the current will of the people. Almost half of the country did not vote for President-elect Obama on November 4, but those who lost accepted the will of the people as such and resolved to respect that decision. Respecting the outcome of elections is critical to our success as a peaceful and law abiding people.

I heard San Francisco's Mayor, Gavin Newsom, suggest in an interview on CNN that perhaps Prop 8 was not a constitutional amendment and that the issue is now up to the California Supreme Court to decide. I merely refer the Mayor and any readers of this blog to a voter guide issued by California State itself. The website makes it clear that at least before the election's outcome the Secretary of State thought that Prop 8 was a constitutional amendment. Perhaps history will be re-written by four or more of the California Supreme Court's seven members.


Kelly J. Bozanic said...

What exactly is the California Supreme Court deciding? Is it whether or not Prop 8 is actually an amendment, or whether such amendment is violative of federal law, e.g., equal protection?

Alison M. Kilmartin said...

According to an L.A. Times article from November 20, there have been six lawsuits filed to overturn Prop 8 since the election. The court has agreed to take up three of them.

For the specific grounds for the suits I paste here text from that same article:

"Gay rights advocates argue that the measure was a constitutional revision, instead of a more limited amendment. A revision of the state Constitution can be placed before the voters only by a two-thirds vote of the Legislature or a constitutional convention. Proposition 8 reached the ballot after a signature drive.

In addition to asking for more written arguments on the revision question and the status of existing marriages, the court told lawyers to address whether Proposition 8 violated the separation of powers doctrine under the California Constitution.

Gay rights lawyers have argued that the measure took away the ability of California's courts to ensure equal protection for minorities who have historically suffered discrimination.

The lawsuits also contend that the initiative was a constitutional revision because it denied equal protection to a minority group and eviscerated a key constitutional guarantee. Supporters of Proposition 8 counter that it merely amended the Constitution by restoring a traditional definition of marriage.

The court's previous rulings on similar lawsuits have been mixed. The court has upheld at least six initiatives and rejected only two that were challenged as illegal revisions.",0,4034655.story