The California Supreme Court is set to hear oral arguments on the Constitutional validity of Proposition 8. Proposition 8 is a ballot intiative approved (52% participating voted "yes") by the voters of California on Nov. 4th, 2008 which amended the California Constitution to say, ". . . [o]nly marriage between a man and a woman is valid or recognized in California".
Proposition 8 was passed after the California Supreme Court struck down the initiative statute Proposition 22 ("California Defense of Marriage Act") of 2000 in May 2008 (see In Re Marriage Cases (43 Cal.4th 757 (2008)).
The most pressing legal issue raised by Proposition 8 is whether the change Proposition 8 makes to the California Constitution is an "amendment" or a "revision".
Proposition 8 was passed after the California Supreme Court struck down the initiative statute Proposition 22 ("California Defense of Marriage Act") of 2000 in May 2008 (see In Re Marriage Cases (43 Cal.4th 757 (2008)).
The most pressing legal issue raised by Proposition 8 is whether the change Proposition 8 makes to the California Constitution is an "amendment" or a "revision".
Article 18 Sec 3 of the California Constitution gives the people of the state the power to amend the California Constitution by majority vote. A "revision" of the Constitution requires a Constitutional Convention or submission, by the legislature, of the proposal to the voters in order to be effective (id., sec 2). Whether or not Proposition 8 is a revision or an amendment will be the fundamental issue that the Court will have to determine.
If it is found to be an amendment it will probably stand; if found to be a revision it must be struck down.
The Constitution does not define these critical terms. Therefore the California Supreme Court laid out a framework to aid in the determination whether a change to the Constitution is a revision or an amendment. The California Supreme Court case Raven v. Deukmejian (52 Cal.3d 336 (1990)) reaffirms that the test will focus on both the "quantitative" and "qualitative" effects of the change.
Quantitative effects must be “so extensive ... as to change directly the 'substantial entirety' of the Constitution by the deletion or alteration of numerous existing provisions ....” (Amador County (22 Cal. 3d 203 (1978). Qualitative effects are changes which causes "far reaching changes to our basic governmental plan" (Raven 352).
It will be very interesting to see how the Court decides this issue. I believe the Court has only struck down 1 change as a revision (I could be wrong on this point). This change deals with what the Court has defined as a civil right (marriage), it deals with separation of powers issues, and with democratic issues. The Court already ruled in the the In Re Marriage that the right to marriage is a fundamental right which extends to those seeking a gay marriage. Do the people have the power to overrule the Supreme Court's constitutional holding?
I think the answer will largely depend on how the Court views the democratic/republican tensions inherent in our system and how "fundamental" the majority coalition considers the right to marriage.
The Constitution does not define these critical terms. Therefore the California Supreme Court laid out a framework to aid in the determination whether a change to the Constitution is a revision or an amendment. The California Supreme Court case Raven v. Deukmejian (52 Cal.3d 336 (1990)) reaffirms that the test will focus on both the "quantitative" and "qualitative" effects of the change.
Quantitative effects must be “so extensive ... as to change directly the 'substantial entirety' of the Constitution by the deletion or alteration of numerous existing provisions ....” (Amador County (22 Cal. 3d 203 (1978). Qualitative effects are changes which causes "far reaching changes to our basic governmental plan" (Raven 352).
It will be very interesting to see how the Court decides this issue. I believe the Court has only struck down 1 change as a revision (I could be wrong on this point). This change deals with what the Court has defined as a civil right (marriage), it deals with separation of powers issues, and with democratic issues. The Court already ruled in the the In Re Marriage that the right to marriage is a fundamental right which extends to those seeking a gay marriage. Do the people have the power to overrule the Supreme Court's constitutional holding?
I think the answer will largely depend on how the Court views the democratic/republican tensions inherent in our system and how "fundamental" the majority coalition considers the right to marriage.
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