The California State Supreme Court Ruled today to uphold Proposition 8 and simultaneously upheld the over 18,000 same sex marriages which took place prior to the ballot initiative.
Huh??? The Court clarified it’s reasoning by stating that based on the argument brought before the court, they had no other option:
“The constitutions of a number of other states contain express provisions precluding the use of the initiative power to amend portions or specified provisions of those states’ constitutions (see, e.g., Mass. Const., amend. art. XLVIII, pt. II, § 2 [“No proposition inconsistent with any one of the following rights of the individual, as at present declared in the declaration of rights, shall be the subject of an initiative . . . petition: [listing a number of rights, including the rights to just compensation, jury trial, and protection from unreasonable search, and the freedoms of speech, assembly, and of the press]]; Miss. Const., art. 15, § 273, subd. (5) [“The initiative process shall not be used: [¶] (a) For the proposal, modification or repeal of any portion of the Bill of Rights of this Constitution”].)
In contrast, the California Constitution contains no comparable limitation. In the absence of such an express restriction on the initiative power, and in light of past California authorities, we conclude that the California Constitution cannot be interpreted as restricting the scope of the people’s right to amend their Constitution in the manner proposed by petitioners.”
We believe based on the written decision, that the courts have clearly created an opening for organizers to one, change the State Constitution to reflect a limitation on what can be changed through the initiative process and two to challenge with perhaps a different argument, those same sex couples who have been left out in the cold.