The Legal Future of Proposition 8

By: LawInfo

Published: 03/2009

In November 2008, California voters approved a ballot initiative known as Proposition 8. Proposition 8 added an amendment to the California State Constitution which read that, “only a marriage between a man and a woman is valid or recognized in California.” Proponents and opponents of Proposition 8 engaged in significant campaigns prior to the election which was to be expected as same sex marriage had already been a hotly contested political issue in California for many years. Proposition 8 was successful at the polls with just over 52% of voters supporting the ban on same sex marriage and just over 47% opposing the ban.

Given the controversy that preceded the vote on Proposition 8 and the close electoral results, it is not surprising that legal challenges were immediately filed with the California Courts. In fact the first lawsuits regarding the constitutionality of Proposition 8 were filed the day after the November election.

The Bases of the Legal Challenges

Several important legal questions are raised by the Proposition 8 lawsuits. As a matter of procedure, some of the lawsuits challenge whether Proposition 8 is in fact a constitutional amendment as it was described or whether it is in fact a constitutional revision. Constitutional amendments are less extensive changes that simply require a majority vote at the polls while constitutional revisions are more substantial changes that require both a majority vote at the polls and a 2/3 approval vote in the state legislature. Proposition 8 was passed according to the procedures set forth for constitutional amendments. The Court is being asked to determine whether Proposition 8 was in fact an amendment or a revision to the state constitution.

Additionally, challengers raise constitutional arguments about protecting the rights of minorities that are attempted to be taken away by the majority. Specifically, it is argued that the judiciary exists to protect the rights of the minority when the majority threatens those rights through seemingly legal maneuvers such as constitutional amendments. Another constitutional argument, which has been raised by the California Attorney General, is that California voters cannot overturn rights in California’s Declaration of Rights absent a “compelling justification” and that no such as compelling justification exists in these cases.

Finally, the Courts are being asked to decide whether the issue of approximately 18,000 same sex marriages that legally occurred between May 2008 and November 2008 in California. The Court must decide whether those marriages can be retroactively annulled or whether they are valid under California law.

The outcome of these legal challenges is not yet known. However, it is clear that important constitutional issues have been raised and that California, as well as the nation, is anticipating the decisions of the California Supreme Court.

The Future of Same Sex Marriage in California

At least 6 lawsuits have been filed that challenge the legality of Proposition 8. Three of those cases were consolidated and the Supreme Court of California heard oral argument for the cases on March 5, 2009. A decision is typically rendered within 90 days of oral argument. So, by June 2009 the Court should have announced its ruling and the future of Proposition 8 will enter its next phase.