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California Supreme Court rejects challenges to Proposition 8

[JURIST] The California Supreme Court [official website] ruled [opinion, PDF] Tuesday that constitutional challenges to Proposition 8 [text, PDF], which amended the California Constitution [text] to prohibit same-sex marriage [JURIST news archive], lacked merit and that the amendment stands as lawful. The proposition, which took effect in November, 2008 after voter approval [JURIST report], amends the California Constitution by stipulating that "[o]nly marriage between a man and a woman is valid or recognized in California." Article II § 8 [text] of the state constitution provides that, in addition to a proposal by two-thirds of each legislative house, a constitutional amendment may be proposed by "an initiative petition signed by voters numbering at least 8 percent of the total votes cast for all candidates for Governor in the last gubernatorial election." Once an amendment is proposed, Article XVIII § 4 [text] provides that an amendment becomes part of the state constitution if it is approved by a majority of voters. At issue was whether the amended language qualifies as a constitutional revision, which could not be lawfully proposed or adopted as liberally as an amendment. In making this determination, the court looked to the historical background of the amendment and revision provisions as well as the subsequent case law defining it. Drawing on this precedent, the court held that it must examine the meaning and scope of the constitutional change and the qualitative and quantitative effect that the change will have on the basic governmental framework in the preexisting provisions of the state Constitution. In applying that analysis, the court held that:

Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision. ... As a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment.
The court also rejected claims that the amendment violated the state constitution's separation of powers provisions and that "inalienable rights" embodied in the constitution are not subject to abrogation by an amendment lacking a compelling state interest. Additionally, the court ruled that the amendment does not retroactively affect the estimated 18,000 same-sex marriages performed before the amendment was passed.

Proposition 8 was a response to the California Supreme Court's decision last year striking down [JURIST report] a statutory ban on same-sex marriage as violating the equal protection and privacy provisions of the state constitution. The amendment has become a focal point for gay rights, prompting donors from across the US and several foreign countries to contribute $83 million in total for both sides of the issue, setting US fundraising records [JURIST report]. Several other states have recently taken up the issue of same-sex marriage. Earlier this month, the New Hampshire House of Representatives rejected [JURIST report] a same-sex marriage bill after it was amended to gain the governor's approval. Recently, the New York State Assembly passed a bill [JURIST report] that would allow same-sex marriages to be performed in the state. That bill will now go before the state senate. Earlier this month, Maine became the fifth state to allow same-sex marriage [JURIST report] when Governor John Baldacci [official website] signed a same-sex marriage bill into law. Last month, Vermont became the first state to legalize same-sex marriage through a vote of the legislature, joining Massachusetts, Connecticut, and Iowa [JURIST reports] as the other states that allow same-sex marriage.

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