A ruling from the California Supreme Court on the constitutional legality of Proposition 8 could come as soon as this week, according to court spokeswoman Lynn Holton. The ruling would be a response to three lawsuits filed immediately after Prop 8. passed one week ago today that argue that the ballot initiative process was followed improperly. The court overruled an earlier Proposition, Prop. 22 in May that defined marriage as between a man and a woman, but as the Washington Post reports this morning:
“Legal experts say this time the proposition would not be as easy to overturn. Unlike Proposition 22, which in 2000 created a statute that was trumped by the state constitution, Proposition 8 is part of the constitution.
In other words, whereas Proposition 22 was found to violate the equal protection clause of the state constitution, Proposition 8 is now part of the equal protection law of the constitution.
“In passing Prop 8, the people of California basically put an asterisk next to the equal protection clause in the constitution,” said William Araiza, a professor at Loyola Law School in Los Angeles. Now, he said, “it fundamentally comes down to whether the court considers this a major change or not a major change.”
Specifically, opponents of Proposition 8 argue that this kind of change is a “revision,” not an “amendment.” The distinction is important, legal experts say, because revisions require two-thirds approval in the legislature and then a popular vote. Amendments can be approved by popular vote only.”
While legal experts feel that the likelihood of the Supreme Court overruling Prop 8. is slim to none, a growing chorus of California politicians are pushing for the court to invalidate the measure. Governor Schwarzenneger told CNN “I think that we will again maybe undo that, if the court is willing to do that, and then move forward from there and again lead in that area.Â More than one-third of the state legislature has signed a friend of the court brief arguing that “the gay marriage ban improperly usurped the state Supreme Court’s duty to protect minority groups from discrimination.”
The Campaign for California Families, a group that supported Prop. 8 is asking to be named as a party to the suit over concerns that the Attorney General will not properly represent the will of the voters.