The California Supreme Court has agreed to take up three lawsuits against the just-passed Proposition 8, which overturned a Supreme Court ruling finding that equal protection under the law required that the state allow gays to wed.
All three cases claim the measure abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.
As is its custom when it takes up cases, the court elaborated little. However, the justices did say they want to address what effect, if any, a ruling upholding the amendment would have on the estimated 18,000 same-sex marriages that were sanctioned in California before election day.
Gay rights groups and local governments petitioning to overturn the ban were joined by the measure’s sponsors and Attorney General Jerry Brown in urging the Supreme Court to consider whether Proposition 8 passes legal muster.
The Court declined to stay Prop 8 (and so allow gays to wed) while it was consiering the case. That’s probably appropriate — no use muddying the waters further if they uphold Prop 8, and if heard with deliberate speed, the impact if they strike down Prop 8 will be minimal. Unless, of course, you had a November wedding planned.
Of course, “speed” in this case means oral arguments in March.
The lawsuits argue that voters improperly abrogated the judiciary’s authority by stripping same-sex couples of the right to wed after the high court earlier ruled it was discriminatory to prohibit gay men and lesbians from marrying.
Well, per se, it’s not wrong for a ballot measure to overturn a court ruling. The argument here is that the change made is so substantial that it falls under a “revision” to the state Constitution, not an “amendment,” which California treats differently.
“If given effect, Proposition 8 would work a dramatic, substantive change to our Constitution‘s ‘underlying principles’ of individual on a scale and scope never previously condoned by this court,” lawyers for the same-sex couples stated in their petition.
The measure represents such a sweeping change that it constitutes a constitutional revision as opposed to an amendment, the documents say. The distinction would have required the ban’s backers to obtain approval from two-thirds of both houses of the California Legislature before submitting it to voters.
Nor is this some unprecedented review.
Over the past century, the California Supreme Court has heard nine cases challenging legislative acts or ballot initiatives as improper revisions. The court eventually invalidated three of the measures, according to the gay rights group Lambda Legal.
So precedent would indicate that this is a very real possibility for being overturned — but not something that the state Supreme Court handles trivially (charges of “activist judges” notwithstanding).
We’ll check back in March, though I suspect the more rabid pro-8 folks will be vocally railing about this whole development for the next three and a half months, and no doubt making noises about recalls of justices, etc. (which, if you think about it, if the justices were, in fact, whimsically self-indulgent in their haphazard legal rulings, would be precisely the wrong PR tack to take right now).
The fact is, these are significant and profound constitutional questions, and the California Supreme Court is not only justified but obliged to fulfill their role as reviewers of constitutional claims. That’s a big part of the judiciary’s role, and it keeps legislators and the populace from passing laws that [insert something partisan you really don’t want to see them pass laws about, whether it’s about abortion or gun ownership or gay marriage]. That’s their job, and regardless of political denomination, we should be glad they’re there to do it.