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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, May 26, 2009 ::
    California Prop 8 decision: While waiting for the text, a little background:

    The legal issue on Prop 8 was which side of a unique California line it falls on.

    It seems that when the California Constitution was written, its drafters, like constitution drafters in many other western states, wanted to include a plebiscitary amendment process. At the same time, they wanted to make it just a tad difficult for the people to use the amendment process to transform the mode of government utterly.

    So if, e.g., the people were seized with a sudden desire to turn California into a monarchy, that would be a "revision," not an "amendment," and would require more elaborate procedures than "merely" a vote of the people.

    So -- you were expecting this by now -- the argument made by Prop 8 opponents to the California Supreme Court was that once that Court itself had declared same sex marriage to be required by the equality principle of the California Constitution, as it did in 2008, undoing that decision is more like changing California from a republic to a monarchy than like, say, changing the Governor's term of office or something of that nature.

    It appears the California court did not agree.

    The Court also upheld the 18,000 same-sex marriages contracted between In re Marriage Cases and the enactment of Proposition 8. Observations:

    1. Faced with a chance to split a difference, appellate courts will generally take it: compare Grutter/Gratz, Van Orden/McCreary.

    2. If the meaning of Prop 8 is that the California Const never recognized same sex marriage, then it makes no sense to recognize the interim ssms; however...

    3. If its meaning is that the CA Const recognized ssms for a few months but now no longer does, then recognizing the interim ssms does make sense.

    4. In any case, people have a reasonable interest in stability in their legal status, even if their legal status is one that conflicts with natural law, good public policy, and popular will.

    Net net: I don't see the court's holding on the interim ssms as a biggie. Maybe someone will prove me wrong.

    :: David M. Wagner 1:21 PM [+] ::

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