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8 Upside Down is Still 8

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This November, California voters will be asked to vote on Proposition 8, which if passed would amend the state constitution to explicitly prohibit same-sex marriage. Um, wasn’t this issue already decided? Well . . . In 2000, California voters passed Prop 22, which rewrote the state’s Family Code to formally define marriage as between a man and a woman. But in May, 2008, the California Supreme Court struck down Prop 22 and other statutes limiting marriage to unions between a man and a woman, as violations of the state Constitution’s equal protection clause. The court further held that the California Constitution affords same-sex couples the right to marry. So, can voters really overturn the state’s highest court’s landmark decision with Prop 8?The ability of voters to remove a fundamental constitutional right – the right to marry – by initiative amendment has been questioned. On June 20, Equality California petitioned the California Supreme Court to remove Prop 8 from the ballot, arguing that

Prop 8 is a constitutional revision, rather than a mere amendment, and thus it requires approval from both the voters and the legislature. However, the court denied the petition with no comment, and the issue of whether Prop 8 is a constitutional amendment or a constitutional revision remains up in the air.

Is Prop 8 a “waste of time,” as Governor Schwarzenegger has stated? Even if Prop 8 passes, wouldn’t the court just find a ban on same-sex marriage unconstitutional again? Probably, but maybe Prop 8 supporters are hoping that if propositions banning same-sex marriage are passed by voters repeatedly, the court might eventually find a way to interpret bars on same-sex marriage as constitutional.

Why would the court do this? First, when the court overrules an express mandate by the people, it risks violating long-standing principles of judicial deference to legislative enactments. Second, if the court ignores statutory authority, its decision can be rendered ineffective by further legislation, especially because many authorities believe that regulation of marriage and divorce is up to the Legislature, except as it may be restricted by the Constitution.Although I personally support the right of same-sex couples to marry, I think it’s great that the court is not immune from voters’ opinions. The Framers of the U.S. Constitution intended for the balance of power to be split in order to help prevent corruption: the push and pull between Prop 8 supporters and the California Supreme Court is a perfect example of their vision in practice.

Ken LaMance

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