Several activist groups have filed petitions in the California Supreme Court, seeking to block implementation of California’s Proposition 8, which restricts the state’s recognition of marriage to that between a man and a woman. The Court denied the Petitioners’ requests for a stay, but set a briefing schedule to consider the legality of Proposition 8. Thus have we come to the pass long predicted by conservatives: the court may be poised to declare the state’s Constitution unconstitutional.
It’s not likely to happen, though. You can read the parties’ filings here. The Petitioners’ argument against Proposition 8 is worse than feeble. Their claim is based on the fact that California’s Constitution distinguishes between “amendment” and “revision” of that document. An “amendment” can be done by initiative, but a “revision” must be initiated by the legislature and approved by popular ballot. Petitioners assert that Proposition 8 is a “revision” rather than an “amendment.”
The problem with that argument is California’s Constitution uses the term “revise” only in connection with establishment of a constitutional convention that would have broad authority to change the Constitution. An amendment is anything else:
SEC. 2. The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution. If the majority vote yes on that question, within 6 months the Legislature shall provide for the convention. Delegates to a constitutional convention shall be voters elected from districts as nearly equal in population as may be practicable.
SEC. 3. The electors may amend the Constitution by initiative.
I don’t see how it can seriously be argued that Proposition 8 is something other than an “amendment,” and, at least as far as I’ve gotten in Petitioners’ pleadings, they don’t make a serious argument. What the Petitioners do say is that the right to homosexual marriage is so “fundamental” that taking it away can only be viewed as a “revision” requiring legislative enactment. But this argument is completely unsupported by the language of the Constitution.
Moreover, the “right” to homosexual marriage in California dates only to May 15, 2008, when it was created by a 4-3 vote of the California Supreme Court. Proposition 8 seeks to reverse the effect of that decision. Thus, if the right to homosexual marriage is “fundamental,” it is hard to imagine a right that wouldn’t be.
In reality, the petitioners are asking the California Supreme Court to usurp the constitutional power of the people and assert that the courts, not voters, hold ultimate authority. This certainly isn’t what California’s Constitution contemplates. Article 2, Section 1 of that document provides:
All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.
There are limits, I think, to how nakedly any court will try to usurp power. The Petitioners are therefore destined to be disappointed.
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