Re-Briefing Proposition 8

The Supreme Court has certified three post-election review questions with respect to Proposition 8:

1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, §§ 1-4.)
2. Does Proposition 8 violate the separation of powers doctrine under the California Constitution? [Textual support for doctrine found in Cal. Const., art. II and art. III. -- TL]
3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Briefing is to be completed by January 15, 2009.

I've previously sounded off on questions 1 and 3 -- while I consider the answers to those questions unfortunate, intellectual and academic rigor compel me to say that no, this is not a "revision" because it does not fundamentally alter the way the state is governed, and the proposition has retroactive effect, meaning that the same-sex marriage licenses issued between June 15 and November 4 are now legal nullities. It sucks, but that's the way it is.

I've not addressed the question of whether the proposition violates the separation of powers. I can't imagine that it does. The proposition was an amendment to the Constitution done by the people directly; Article II § 1 indicates that ultimate political power to do things like that is inherent in the people. The people have divided their government up into legislative, executive, and judicial branches but there is no reason they cannot set up a different form of government as long as it works along republican (small-"R") principles. One way that could happen is exactly what is the case -- the initiative process, which is about as republican as it gets.

The Supreme Court seems to sense the outcome is the same as me. The people overruled the Supreme Court, and that's that. Had the Supremes thought that the challenges to Prop. 8 had a reasonable chance of success, they could and should have issued a stay of implementation of Prop. 8. They declined to do so. This is an indication that they do not think that the challenges are likely to succeed on the merits.

Unfortunately, I agree. I'm a little bit confused as to why questions 1 and 2 could not have been addressed in the form of an advisory opinion before the election. If there are structural or legal reasons why Prop. 8 was an unconstitutional initiative, that could and should have been determined before the election. It's not as if no one saw this coming.

As I've said before, the result is what it is. A disappointment and a cause for all Californians to hang their heads in shame. We have to get back to doing the hard work of convincing people, one at a time, that gay people deserve to be treated the same as straight people, and that's just the way it is.