Wednesday, November 05, 2008

Proposition 8: Courts Have a Good Argument to Strike It Down

This interesting legal analysis suggests that there is a case to be made that Proposition 8 is a fundamental revision of rights found in the California constitution - that is a "revision" and not an "amendment."

Apparently, there is a distinction in California law. A revision requires a stricter process than a ballot initiative that merely amends the constitution as Prop 8 does. Since the decision in California declared that marriage was a fundamental right, and since in California an amendment can only "better carry out how the constitution is framed," not "fundamentally alter" it, I find this a very strong basis for a legal challenge.

Since Prop 8 would essentially divorce married couples in California, this may end up back in the courts - and back into a "revision" process:

Revision of the Constitution may be accomplished only by a constitutional convention and popular ratification (art. XVIII, § 2) or by legislative submission of the measure to the electorate (art. XVIII, § 1).

The next move is a legal challenge that will ask the courts to nullify the amendment and send it back to a constitutional convention, a more convoluted and extended process. So prop 8 is probably not the last word on marriage in California.

UPDATE: and the challenge has been filed. Read more on my analysis of its chances here.

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