04/02/2009 05:12 am ET | Updated May 25, 2011

Prop 8 For Dummies: What to Expect During Thursday's Court Hearing


On Thursday morning, the long awaited Proposition 8 arguments will be delivered to the California Supreme Court. For those who were outraged or saddened by the vote on election day, this three hour window is a chance to get back some of what was lost.

I will be watching the oral arguments on live feed and wanted to set out a little background for those readers who are also interested in tuning in, but have the good sense not to study law for a living.

A few opening points: this argument will actually touch upon a number of cases all surrounding the same issue and all petitioning the same man (Mark Horton, State Registrar of Vital Statistics). The most well known of these cases is referred as Strauss v. Horton. The arguments don't vary much from case to case.

As well, there are a ton of interveners - civil society groups making submissions in writing (briefs) to the Court in support of one side or the other - hoping to alert the court to the impact this decision will have on the lives of people not named as a party to the actions. Each of those briefs raise novel arguments that might not form the center of the challenge to Proposition 8.

The argument against Proposition 8 has two main assertions.

The first - the big picture fundamental rights approach - argues that, once the California Supreme Court found that unequal marriage rights constituted a violation of the equal protection clause in the California Constitution, taking away marriage rights from same-sex couples would constitutionally enshrine a violation of the right to equality. This would create severe internal contradictions in what is the fundamental legal document for the State of California. In other words, equal treatment under the law is so fundamental that you can't take it away, even by amending the Constitution.

This idea of fundamental rights has been recognized in some jurisprudence, but there certainly is no consensus about the existence of these kinds of rights (Although it does make you sleep easier at night thinking that the right to free speech can't just be voted away on a whim).

This leads into the smaller technical argument: Proposition 8 created such a fundamental shift in the fabric of the Constitution that it can't be approved by votes alone and requires a secondary legislative approval process. Amendments to a Constitution are, according to a very old Supreme Court decision, an addition or change to the original legal document. Revisions, on the other hand, are a substantial alteration of the underlying principles of a legal document.

Revisions require approval by two thirds of the state house before a majority vote in order to become law.

When determining whether a proposition is a revision or an amendment, the court looks to the qualitative changes (how much of the document is affected) and the quantitative changes (how many words are added, how many different provisions are effected, etc.). Proposition 8 was very short and only affected one section of the Constitution. That said, if you buy the fundamental rights argument, Prop 8 caused a great shift in constitutional guarantees in California. The opposition to Prop 8 is hoping to convince the Court that the gay marriage ban was significant enough to constitute a revision and must be referred to the state house.

If you're feeling good about these arguments, don't start planning your big gay wedding quite yet. The Proposition 8 supporters have some pretty convincing law on their side (they also have Ken Starr who writes like he's running for office - it's pretty entertaining to read).

First, a large part of the argument against Proposition 8 relies on the notion that parts of the Constitution are so fundamental they cannot be altered even if those alterations are legally executed. Unfortunately, although that makes intuitive sense, no court has stated affirmatively that parts of the Constitution are safe from alteration. Those courts that have hinted at these rights haven't been too clear about what is included in those rights. Perhaps it's just the freedom from unreasonable search and seizure rather than the broad notion of equality.

The broader the sphere of fundamental rights, the less power the people have to control their own lives. Americans are kind of touchy about giving their democratic powers away. You need to be sure you are right when you carve out a section of law and tell citizens they have no effect on its application.

Without a hierarchy of rights that preserves some from amendment, when two provisions within one legal document conflict, the Court usually finds that the specific provision (in this case Proposition 8) overrides the more general provision (the equal protection clause).

Second, the fact that Proposition 8 was passed by popular vote according the amendment requirements means that the Court must assume it is valid. That leaves the petitioners with the burden of proving that the amendment is actually a revision.

Burden is important because when there is a presumption of validity you need to clearly prove your argument to have any chance at success.

Historically, revisions have been long amendments (as in provisions with a lot of words) or additions that affect a large number of provisions. They also might affect the basic governmental structure. It's a break from certain precedents to read the possible effect of a short specific addition as being so fundamental that the amendment is reclassified as a revision.

The single most important element of the Prop 8 supporter's argument is that the amendment represents the will of the majority of the California population. While you can rhapsodize about the tyranny of the majority as much as you like, American history has created a nation of people that value the will of the people over the will of a centralized governing body. Courts are aware of the importance of democracy and accountability and they will need a very convincing argument to override a popular vote.

While courts have a rich history of activism - a history that has led to some of the greatest civil rights progresses of our time - they are often loathe to interfere in the democratic process. Because of this, I think the strongest argument Prop 8 opponents have is that characterizing Proposition 8 as a revision underscores the fundamental change of removing equality rights from a discrete group and also leaves the final decision in the hands of elected representatives.

This compromise may be the best hope for gay marriage in California. Until, that is, the next ballot.