Prop 8 Takes Course in the California Supreme Court

On Wednesday, November 19th, the California Supreme Court decided to hear the lawsuits challenging the legality of Proposition 8. Both sides of Proposition 8 gin up their ammunition for the legal face-off that will overshadow the fight for gay rights for years to come.

Although the State’s Supreme Court agreed to hear the case, they denied holding the implementation of Proposition 8 while proceedings are in action. This puts a lot of previously married gay couples in limbo. Still, many legal scholars believe that it is unlikely that the state’s high court will declare these marriages null due to the legal precedence concerning ex post facto laws and bills of attainder.

An ex post facto law is a law passed after an event or action that retrospectively changes the initial outcome or legal circumstances of the law. Strikingly, there was no mention regarding the condition of marriages before the passage of Proposition 8 in the lawsuits proposed to the California Supreme Court. Nonetheless, the court suggested that both sides prepare arguments concerning the issue.

The legal questions swirling around this case ask if Proposition 8 was an improper amendment to the state constitution and whether or not it hinders the ability of the court to protect the minority.

The opposition to Prop 8 declared that placing a measure on a ballot that takes away civil rights is repugnant to the state constitution. Furthermore, such an amendment would require two-thirds majority of the state legislature or a state constitutional convention to be placed on the ballot.

Supporters of Prop 8 argue that the provision was not a dramatic change to the state constitution; rather, it was a minor change that could be placed on the ballot by petition.

Never before has there been a measure placed on the ballot where voters supported a provision to strip away civil rights of a minority group. A Hastings College of Law professor, Donna Ryu, speaks out on the issue.

“Unlike other cases, this is a case where for the first time people have voted to single out one group of individuals entitled to the highest level of constitutional protection and taken away civil rights…It eviscerates the equal protection clause.”

But some conservative legal scholars argue that the court has no right to usurp the will of the people.

What is disturbing is the back lash that the court would receive from the supporters of Proposition 8 if it were overturned. A leading advocate against gay marriage, Randy Thomasson, warns of a “voter revolt” if the court were to overturn the passage of Prop 8. Regressing to the voter backlash that removed 3 Supreme Court justices after the death penalty was abolished in California.