Proposition 8's Gay Marriage Ban Back Before the California Supreme Court on Thursday

MSNBC and the Associated Press report that on Thursday opponents of California's Proposition 8--which took away the right of gay couples to marry, even though the California Supreme Court said the state constitution protected it--will return to the court to argue that Proposition 8 itself is unconstitutional.

Experts noted that it would be highly unusual for a state supreme court to overrule the will of the people in passing a state initiative. Opponents are arguing that Proposition 8 was not just an amendment to the state constitution but a substantial revision, which under state law should not have been submitted to the voters until it was first approved by the state legislature. They also note there is no precedent in California allowing voters to take rights away from minorities--and that other minorities should feel as threatened by the move as gay people do. In the words of the article:

"Legal experts say Proposition 8, which won 52 percent of the vote, would almost certainly stand if not for one notable fact: the marriage amendment represents the first time in California history that the constitution was changed at the ballot box to deprive a protected minority group of a right expressly carved out by the court.

"'It would be unprecedented for the court to overturn Proposition 8 only because Proposition 8 is unprecedented,' said Dale Carpenter, a University of Minnesota constitutional law professor."

The article adds that California Attorney General (and former governor) Jerry Brown has refused to defend the initiative and is asking the justices to invalidate it.

Interestingly, there is precedent for a court to overturn an initiative passed by a majority of California voters. In 1964 California voters favored Proposition 14, crafted to overturn the Rumford Fair Housing Act, which prohibited discrimination in the sale or rental of housing "because of ethnicity, religion, sex, marital status, physical handicap, or familial status."

In 1967 the initiative itself was overturned by the U.S. Supreme Court, on grounds that it violated the equal protection clause of the 14th Amendment to the U.S. Constitution. The court made it clear that no constitution gives California voters an absolute right to enact anything they damn well please.