First, the NY Times piece on the big Prop 8 showdown in the California Supreme Court...
California Court to Weigh Gay Marriage Ban
By JESSE McKINLEY and JOHN SCHWARTZ
Published: March 4, 2009
SAN FRANCISCO — Under intense pressure from both sides in the debate over same-sex marriage, the California Supreme Court will hear arguments Thursday on the ballot initiative passed by voters last November that outlawed such unions.
And for all the passion surrounding the issue of same-sex marriage, the question before the court is one that may seem technical, even dry: Does the initiative approved by Californians merely amend the State Constitution or, as gay rights groups hope the court will rule, revise it?
Under California law, an amendment is a matter that the state’s longstanding initiative process deals with routinely. A revision, however, entails a fundamental change to the Constitution, and requires approval of either two-thirds of each house in the Legislature or a constitutional convention. That could be much harder to achieve than passage in a referendum.
What elevates the ban on same-sex marriage to the level of a fundamental rewriting of the Constitution, opponents of Proposition 8 argue, is that it denies a right — the ability to marry — that the California Supreme Court earlier last year called inalienable. To take away that right now, they argue, would violate federal and state constitutional guarantees of equal treatment.
Secondly, I found a good piece in Salon interviewing Dennis Herrera, one of the anti-Prop 8 lawyers who brought the suit.
What are the key arguments that will be made in the legal challenge to Proposition 8?
Well, for us, it's really quite simple. We're saying that the process for putting Prop. 8 on the ballot was fundamentally flawed; the proper procedure was not a constitutional "amendment" but a constitutional "revision." For the electorate to change the nature of the equal protections clause of the California Constitution, it would require a constitutional revision. That means that you need a two-thirds vote of the Legislature before you can even put it on the ballot -- that's not what happened in November. Prop. 8 was instead treated as a constitutional amendment and brought directly to the voters.
Prop. 8 also drastically altered the structure of state government; it stopped the courts from applying the equal protection clause of the California Constitution to a protected class of citizens, those being gay folks.
The whole article is really worth reading.
The upshot is that for the forseeable future, marriage equality will not be won at the ballot box. It's got to be mandated by the court system through the Equal Protection Clauses of the U.S. Constitution and of the various state constitutions. It's not simply a matter of "choice" as the Holy Terrors like to argue, that people opt to be gay and that therefore, it's okay to discriminate against them.
(As a side note, what if people's choices with regard to ...say...religious faith were subject to the same analysis? Oh, that's right. There's a Constitutional amendment protecting THAT sort of choice. But I digress).
The upshot is that even if it were a matter of choice (which it isn't, nor should it be), certain choices must nevertheless be made free from the threat of discrimination by the majority. It was the same when it came to the equal rights of women, of the civil rights of non-white citizens.
I hate to sound like I'm promising boredom for non-law geeks out there, but this is something else to which close attention must be made.