Nexus: Chapman's Journal of Law and Public Policy

The campaigns for and against Proposition 8 raised $35.8 million and $37.6 million, respectively, becoming the highest-funded campaign on any state ballot that day and surpassing every campaign in the country in spending except the presidential contest. Now that Proposition 8 has passed, the pending legal issue is whether approximately 18,000 same-sex marriages already in effect would be retroactively annulled by the constitutional change, or whether they would be preserved. California Attorney General Jerry Brown said that existing same-sex marriages would be unaffected, but other legal experts have said challenges are likely. The 14-word constitutional amendment does not state explicitly that it would nullify same-sex marriages performed before the November 4th election, although proponents say it will.

Immediately after Californians approved Proposition 8, opponents filed a petition for writ of mandate with the California Supreme Court. Strauss v. Horton makes history as an amendment banning same-sex marriages has never been challenged in a state where the marriages had been legal. The contention of the Proposition 8 opponents is that that the proposition was invalid because it constituted a "revision" of the California Constitution instead of an "amendment," and therefore required the prior approval of 2/3 of each house of the California State Legislature. The argument is that an elimination of a judicial interpretation of California's equal protection guarantee works such a fundamental change in the constitutional structure that it can only be accomplished by revision. While amendments may be added by popular initiative, revisions can only be accomplished by either a constitutional convention plus ratification by the people, or legislative proposal ratified by the people.

Responding to this plea for legal clarity from both sides of the issue, the California Supreme Court said Wednesday, November 19th that it would take the case to determine whether a voter-approved ban on same-sex marriage was constitutional. However, the court denied the request to stay the enforcement or implementation of Proposition 8. In a two-page order signed by six of its seven justices, the court stated, "The California Supreme Court…agreed to decide several issues arising out of the passage of Proposition 8…and directed the parties to brief and argue three issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (2) Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?" The first legal briefs are due December 19th, with a reply from opponents of the ban due in early January. Oral arguments are expected to be heard in March. So, for better or worse, no pun intended, this is an issue that will no doubt continue to make history on several fronts.