Analyzing the Prop 8 litigation
Filed by: Nan Hunter
January 5, 2009 2:30 PM
http://www.bilerico.com/2009/01/analyzing_the_prop_8_litigation.phpAs of today, both the defenders of Prop 8 and its challengers will have filed their briefs with the California Supreme Court in the litigation seeking to overturn the popular vote that has reinstated a ban on same-sex marriage. (Amicus briefs are due in two weeks.) A number of commentators have opined that those seeking to have Prop 8 invalidated have little chance of success.
My view: not so fast.
The theory behind the challenge is that Prop 8 should be categorized as a revision, rather than amendment, to the state constitution. (CA Attorney General Jerry Brown has a different theory, that I analyzed earlier.) Unfortunately, there is little case law on the criteria for distinguishing between amendments and revisions. The California Supreme Court in the past has upheld most voter initiatives as amending the constitution, but has rejected a few on the ground that they amounted to revisions and should have gone through a different voting procedure because of that.
