On Proposition (h)8 Today
The oral arguments will center upon three questions:
Was this a revision of the state constitution rather than an amendment?
An amendment requires only a simple majority to pass into law. A revision, a substantial change in the language and the application of state law, requires a 2/3's majority in the State Assembly and the State Senate before being put on the ballot. The argument of the defense is that there were two definitions of marriage and civil union as being restricted only to "one man and one woman" already embedded in the constitution, so therefore, prop (h)8 was merely a strengthening of those already in place sections. The plaintiffs argue that because this proposition had the effect of removing rights in place to a segment of the population there was no amendment, but rather a drastic revision.
Does the proposition constitute a violation of the state's separation-of-powers doctrine and did it seek to deprive the state judiciary of their legal, and constitutional function of judicial review?
Last May, in the decision which prompted the proposition, the State Supreme Court ruled that the laws defining and restricting the right to marry raised
"constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause."In this case the defense is asking the court to abrogate constitutional duty and authority to a simple majority.
If Proposition (h)8 is found to be constitutional and is left to stand what is the effect on the more than 18,000 couples who were legally married during the period between the May decision and the victory in the election?
This is probably the thorniest issue raised by the entire proposition. To remove the legal rights from law abiding citizens who were married under the law at the time is, I hope, the bridge too far in the assault on equal rights. It would require expensive and bitter legal wrangling to untie the knots already in place.
*It's only right to mention that I have a dog in this fight. My cousin, my best friend and steadfast ally for our entire lives was able, over the summer, to marry his companion and lover of nearly 20 years. My cousin's marriage and long term commitment to his partner show more "defense of marriage" and more demonstration of enduring and pure love than my four tawdry debacles of drunken cruelty, faithless and indulgent recklessness which all resulted in hurtful, and messy divorces.
A decision is expected within 90 days. The Sacramento Bee reports nearly 18,000 demonstrators are outside the court, representing both sides of the argument.
Be_Devine writes about the legal issues. Much better than I did.
Jerry Brown writing at Kos argues that the entire thing was poorly written, meanly concieved and should be struck down.
dday at Hullaballoo reports that the issue may be decided already. The prediction is that the proposition will be allowed to stand, as will the marriages which took place before it went into effect. A third possibility is that the term "marriage" may be replaced by another term effectively putting the state in charge of civil union and individual faiths in charge of "marriage."