Norma Jeanne Strobel
Ralph E. Shaffer
Proposition 8: When Courts Overturn the Will of the People
It’s been done before in California –
Stunned by the narrow victory to ban same-sex marriage in California , gay and lesbian organization lawyers have moved to the courts. Ambiguities regarding amendment and revision of the state constitution gives them hope that the state Supreme Court will overturn the Proposition 8 victory.
Article 18 of the state constitution makes it clear that there is a distinction between a revision and an amendment to the constitution. While an amendment may be proposed by voters through the initiative process, a revision must originate in some other form, either by a constitutional convention or by action of the state legislature. The issue then is whether Proposition 8 amended or revised the constitution.
On rare occasions courts have voided voter-approved initiatives. In the early 1960s, an initiative banning pay television was overturned. In 1964, forces opposed to integrated housing pushed through an initiative repealing the Rumford Fair Housing law. That too was subsequently thrown out by the court. Those initiatives had overwhelming voter support and were clearly the will of the people. On two other occasions, in 1948 and 1990, the state Supreme Court rejected initiatives on grounds that their provisions so fundamentally altered the structure of government that they were inappropriate for the initiative process.
Opponents of same-sex marriage first tried to ban it in California through an initiative. It carried, but the state Supreme Court ruled that it violated the state constitution.
That led to Proposition 8.
With passage of the proposition, the county clerks stopped issuing marriage licenses to same sex couples. But confusion exists.
While State Attorney General Jerry Brown insists that the new proposition must be enforced, and that no same-sex marriage can legally take place, enforcement by county clerks has been without uniformity. At least one couple was able to receive a license in Los Angeles following passage of the amendment. While Solano County continued to issue licenses briefly, San Francisco hinted it may issue them as well.
