The LA Times notes that the California Supreme Court has agreed to hear arguments on the constitutionality of Prop 8, and is planning to make a ruling that will answer all the issues at stake, from whether Prop 8 was a revision instead of an amendment to the Constitution, to whether or not the 18,000 couples who got married between the Court's earlier ruling and the passage of Prop 8 will have their marriages wiped out. I don't know if the LA Times planned it this way, but they really illustrated well the intellectual differences between the two camps it summarized their various arguments. Here's the view of the people who want to overturn Prop 8.
Gay rights advocates argue that the measure was a constitutional revision, instead of a more limited amendment. A revision of the state Constitution can be placed before the voters only by a two-thirds vote of the Legislature or a constitutional convention. Proposition 8 reached the ballot after a signature drive.And those in favor of Prop 8.
In addition to asking for more written arguments on the revision question and the status of existing marriages, the court told lawyers to address whether Proposition 8 violated the separation of powers doctrine under the California Constitution.
Gay rights lawyers have argued that the measure took away the ability of California's courts to ensure equal protection for minorities who have historically suffered discrimination.
The lawsuits also contend that the initiative was a constitutional revision because it denied equal protection to a minority group and eviscerated a key constitutional guarantee.
Supporters of Proposition 8 counter that it merely amended the Constitution by restoring a traditional definition of marriage.Certainly, mere verbiage is not an indicator of the strength of an argument, much as my students may think otherwise, but it does seem to me that the opponents have marshaled much stronger arguments in their favor than supporters have.
It also seems to me that the California Supreme Court is going to have to make an all-or-nothing decision on this. Either they overturn Prop 8 for one of the many reasons mentioned (and I'd really hope that they go for the equal protection argument--human rights should never be put up for a vote) or all the same-sex couples who got married in the interim will have their marriages annulled. I just can't see a logical way that the Supreme Court can play the middle ground here.
There's a hearing in the spring, so the legal side of this discussion will pretty much be on hold until then, but the debate won't be. This is the next big civil rights campaign, and one where young people are overwhelmingly on the right side again.