On a side note - Prop 8 raises a very interesting constitutional question for California. The first initiative to ban gay marriage passed by a wide margin, then was struck down by the courts. The next initiative was framed as a constitutional amendment, and passed narrowly.
If the initiative process can be used trivially in a "%50 + 1" way to deny civil rights to a minority group, then does California have a meaningful constitution? If an initiative appears to violate the constitution, and it's fairly trivial to get it on the ballot as an amendment to the constitution, then the notion that an initiative could be unconstitutional becomes meaningless, right?
So I actually do hope that the courts strike this one down. Partly because I'm opposed to prop 8, of course, but also because I don't want a state constitution that can be changed in such a meaningful way by a "fifty plus one" majority.
This issue is at the heart of the petition against enacting Prop8 that was brought before the California Supreme Court.
The California Constitution distinguishes between "amendments" and "revisions" to the Constitution. Amendments can be used to clarify the Constitution and require a 50%+1 vote. Revisions are necessary for far-reaching changes to the Constitution and need a 2/3 vote in the state Legislature followed by a 50%+1 referendum vote.
The argument is that if mere amendments can be used by the majority to deny civil rights to a minority group, it would render the Equal Protection clause ineffective (a far-reaching change), which would require it to go through a "revision" process and not just an "amendment" process.
" I don't want a state constitution that can be changed in such a meaningful way by a "fifty plus one" majority."
Then amend the constitution, if it is so "trivial."
$25M from LDS really helped the pro-Prop 8 lobby. The amount of dramatic fear mongering that went on was staggering (Teachers will be forced to make your kids queer! If gays get married, your marriage is worthless!)
Fundamentally, there is no argument against gay marriage that does not involve religion. Separation of church and state and equal protection under the law together will make this a SCOTUS issue, IMHO. IANAL.
"Then amend the constitution, if it is so 'trivial'"...
I should probably clarify what I mean by "trivial" - I mean this relative to the usual process of amending the constitution. In a purely political sense, it was not "trivial" for the pro prop-8 even to get a 52% majority on this issue from a political point of view - it took a tremendous amount of money and effort.
What I mean is that the difference between getting prop 8 passed as a constitutional amendment and as a standard statute seems fairly "trivial" when you consider how profoundly different these types of legislation are... one is essentially beyond the reach of the courts.
I've read something similar to what jorgeortiz85 wrote - that a true structural change in the constitution can't be enacted with the "%50 + 1" initiative process.
But what I saw here was that prop 22 was passed by the voters, struck down by the courts as unconstitutional, and then resubmitted as an amendment. If it's not much harder to submit it as an amendment, then every initiative that could be deemed unconstitutional would just automatically be submitted as an amendment - and if the courts are lenient about allowing major changes to be submitted as amendments, then it would be "trivial" to use the "%50+1" majority to put minorities at a legal disadvantage, outside constitutional review.
As for what it takes... shoot, I'm really pretty ignorant here. I think it's just a matter of getting more signatures... I think it's about 50% more, but I really don't know, and I'm not sure how to look this up... if anyone does know, please post!)
If the initiative process can be used trivially in a "%50 + 1" way to deny civil rights to a minority group, then does California have a meaningful constitution? If an initiative appears to violate the constitution, and it's fairly trivial to get it on the ballot as an amendment to the constitution, then the notion that an initiative could be unconstitutional becomes meaningless, right?
So I actually do hope that the courts strike this one down. Partly because I'm opposed to prop 8, of course, but also because I don't want a state constitution that can be changed in such a meaningful way by a "fifty plus one" majority.