The California Supreme Court will revisit the issue of same-sex marriage, this time to decide between the democratic will of the majority versus the rights of a minority.
The court agreed Wednesday to hear legal challenges to Proposition 8, the voter-approved ballot initiative that amends the constitution to end same-sex marriage. Oral arguments aren't expected until March. For the time being, gay couples will not be able to get married in California as the court refused to grant a stay.
The lawsuits, filed by a coalition of gay-rights groups and cities, argue that Proposition 8 represents a major change to the constitution – a revision rather than a commonplace amendment. Revisions require two-thirds support from the legislature before heading to the ballot, a standard that almost certainly could not be met.
Attempts to throw out initiatives on these grounds are rare, and have almost always failed. The petitioners, however, say that what happened at the polls earlier this month was truly unprecedented.
"The fact that [Proposition 8] is such an extraordinary attempt to take this precious right away from a vulnerable group means there is not a lot of precedent," says Jenny Pizer, senior counsel for Lambda Legal, one of the gay-rights groups behind the suits.
While many Californians may not believe that same-sex couples have a "right" to marry, the Californian Supreme Court said they do in its landmark marriage case in May. Voters then passed Prop 8 to explicitly define marriage as "only between a man and a woman."
Courts have an obligation under the equal protection principle to safeguard the rights of minorities against infringement by a majority. This is particularly true in cases involving groups like gays and lesbians who have traditionally faced discrimination.
Since Proposition 8 makes it impossible for courts to step in and enforce equal protection of marriage rights, the measure is a "change to the fundamental government structure," argues Ms. Pizer. Those magic words represent the definition of a constitutional revision, as opposed to a simple amendment.
Defenders of Proposition 8, however, argue that the measure only deals with the structure of marriage – not government.
"Since the amendment is silent as to the judiciary, or any other branch of government, there cannot be any effect on the role and constitutional responsibilities of the respective branches," reads a court brief submitted by the Liberty Counsel, a nonprofit legal group opposed to same-sex marriage.
Furthermore, the brief argues, overturning Proposition 8 would trample the "people's right to amend the Constitution."
The court over the years has found a number of major ballot initiatives to be mere amendments rather than revisions. One such case: Proposition 13, which capped property taxes and wound up dramatically shifting the budgetary landscape of California. Another is an initiative that reinstated the death penalty.
The one case where the court did nix an initiative as a "revision" involved major changes to the state's Bill of Rights, says Gerald Uelmen, a law professor at Santa Clara University. Since it's so rare for these cases to succeed, he doubts the challengers will prevail.
If the court does consider Proposition 8 to be a revision, they would have to admit that their original ruling in the marriage case was also a revision of the constitution, adds Mr. Uelmen. That would put the justices in the awkward position of, in effect, telling voters: "We can revise it, and you can't." Those justices would face a serious challenge when they come up for confirmation, he says.
He acknowledges that there's outrage in the gay community and elsewhere that a minority's rights can be taken away by a simple majority vote. However, same-sex marriage "is not a right that has been enshrined in our Constitution for 200 years, it's a right that's only existed for three or four months since the decision of the California Supreme Court."
Pizer, with Lambda Legal, retorts that there was a time in history when women's right to vote was also of recent vintage. "We're not talking about wine here, we are talking about constitutional rights," she says.