Pre-Gaming the Prop. 8 Arguments

Tomorrow, the California Supreme Court will hear arguments in the Proposition 8 cases. There is much to talk about, but the critical legal distinction turns on the technical question of whether the initiative worked a "revision" or an "amendment" to the California Constitution.

A revision occurs when the "principles that underlie" the California Constitution are changed; an amendment, by contrast, furthers or better implements existing principles without changing them. (If that distinction seems artificial or contrived, it's probably because it is.)  Characterizing Proposition 8 as a revision is a win for the Petitioners, because revisions require approval of the state legislature -- something that has not happened here.  Characterization as an amendment, on the other hand, would mean Proposition 8 stands.

Here is a cursory rundown of the arguments, based on the briefing:

The Petitioners will argue that Proposition 8 was a revision (and not an amendment) because it divested the California legislature and the judiciary of the ability to safeguard the rights of a minority group. They will argue the initiative improperly targets a suspect class, and will attempt to cast the debate in terms of a change to the California Constitution's interest in protecting a marginalized and vulnerable population.

The other side will argue that Proposition 8 was an amendment (and not a revision) because the structure of California government has not changed. They will argue the initiative expresses the will of the people, and will attempt to cast the debate in terms of democracy rule.

My sense (sadly) is that the Petitioner's revision/amendment argument is an uphill battle, and that what is at stake here are the marriages already in place. If the Court determines that Proposition 8 was an amendment, it will confront the much thornier question of how to treat the existing 18,000 same-sex marriages. Petitioners will argue that the existing marriages must remain valid, because to repudiate them would be to enact an ex post facto law, would violate due process, and would amount to a state-compelled divorce. The other side will argue that Proposition 8's text and mandate are clear: same sex marriage is no longer recognized in California, the people have spoken, and the inquiry need go no further.

I have opinions about where the Court will come down on the first question (I think they'll call it an amendment, not a revision) but I'm at a loss with respect to the existing marriages. I doubt I'm the only one confused about the second question, but perhaps the oral arguments will illuminate.

Lastly, there is a political angle: which Justices will vote which way, and why? That's out of my league, but you can find some discussion here. You can also watch the arguments in real time here. My understanding is that the arguments will also be broadcast on a projector in Café Zeb Room 107 tomorrow from 9:00 - 12:00 p.m. Perhaps I'll see you there.