Calif.'s Prop. 8:
It's Not Over Till It's Over

California's one last hope for killing Proposition 8 -- the ballot initiative that would reverse the right of same-sex couples to marry by amending the state constitution -- died this week when the California supreme court, without comment, refused to hear a legal challenge to the measure put forth by the National Center for Lesbian Rights, Lambda Legal, the ACLU and others before the November election.

The groups essentially argued that Prop. 8 would effect so major a change to the California Constitution that it could only be put to the voters by a two-thirds vote of the state legislature or a constitutional convention, not simply as the result of a signature drive.

But take heart. Far from being over, the battle over Prop. 8's validity has not yet even been joined. All the court did Tuesday was to say, in effect, "We're not going to hear these challenges before the election." If Prop. 8 passes on November 4, all the challenges will be there waiting on November 5, and one of those challenges in particular is powerful indeed.

Let's review: In 2000, California voters approved Proposition 22, which amended a section of the California Family Code to read, "Only marriage between a man and a woman is valid or recognized in California." Significantly, Prop. 22 resulted in a statute. It didn't change the state's constitution. Statutes must comply with the state and federal constitutions, and if they don't, the courts are charged with striking them down, at least in theory.

That's exactly what the California supreme court did in its May 15 decision - it ruled that Prop. 22, the statute, violated our state constitution in two major ways. First, the court held that gays and lesbians, like everyone else, enjoy a "fundamental right" to marry under the constitution's due process and privacy clauses, and that Prop. 22 violated that right. A "fundamental right" is one the government can't take away from anyone without a compelling reason. Freedom of religion, free expression, and voting are other fundamental rights. California's is the first state supreme court to recognize the fundamental right of gays and lesbians to marry, according to Lambda Legal.

Second, the court held that by permitting heterosexuals to marry the person of their choice, but denying gays and lesbians that same right, Prop. 22 violated the California constitution's "equal protection" clause. The equal protection clause forbids the government from treating "similarly situated" citizens differently without some reason. How compelling that reason has to be depends on the right at issue, and who's being deprived of it. If the right is "fundamental," or the unequal treatment is based on a "suspect classification," the court must apply what's known as "strict scrutiny" in deciding whether the law is constitutional.

In its marriage decision, the California supreme court held that Prop. 22 qualified for strict scrutiny on both grounds.

First, the court ruled that the law impeded the fundamental right to marry. Second, the court recognized that Prop. 22 harmed gays and lesbians while leaving everyone else alone, and then held that sexual orientation was a "suspect classification," deeming gays and lesbians worthy of the same protections afforded to other marginalized groups such as African-Americans and women that have historically suffered discrimination. The idea behind suspect classifications, sometimes called "suspect classes" or "protected classes," is simple. If a statute harms members of one of these protected groups more than others, there's a suspicion of discriminatory intent, which binds the courts to scrutinize that law strictly. Long story short, statutes almost never survive the lens of "strict scrutiny," and Prop. 22 was no exception.

So, what to do if you're determined to torpedo other people's happiness and your statutory gay marriage ban has just burst into constitutional flames? Simple. You turn your statutory ban into a constitutional ban. The rationale -- them thar "activist" judges can't rule part of the constitution itself unconstitutional.

And that brings us to Prop 8. Its language is exactly the same as the old Prop 22, but Prop 8 would write that language into California's constitution, not just its Family Code. But in trying to change the constitution, Prop 8 faces a problem its predecessor didn't: California law distinguishes between a constitutional "revision" and a constitutional "amendment." Under California Supreme Court precedent, a revision is a measure that would "substantially alter the [state's] basic governmental framework." An amendment is any less sweeping change.

Revision initiatives can only be put on the ballot by a two-thirds vote of the legislature or by a constitutional convention. Amendment initiatives simply require a certain number of voters' signatures. It's just plain common sense -- big changes should be harder to make than little ones.

Prop 8 is the result of a signature drive, not a two-thirds legislative vote or a constitutional convention. If Prop 8 were to pass, but the court would decide that banning same-sex marriage would be a "revision" to the constitution, then the initiative would not have properly qualified for the ballot, and its passage would be nullified.

So how likely is it that Prop 8 will be struck down if it passes? It's impossible to say for sure because no California court has ever had to decide whether a ballot initiative that changes the state constitution to deprive members of a "suspect class" or a "fundamental right" was a constitutional revision or amendment.

In probably the most analogous case, the California Supreme Court in 1979 held that a ballot initiative that reinstated the death penalty after the court had ruled that punishment unconstitutional was an amendment and not a revision. But the initiative there did not seek to apply the death penalty only to a certain group of people, and that's the difference.

Look at it this way: Would a constitutional provision barring African-Americans, and no one else, from marrying be a big deal, i.e., a revision, or just an amendment? How about one taking away women's right to vote? Jews' right to worship? Prop 8 is indistinguishable from each of these examples in the eyes of the law because all would involve depriving a suspect class of a fundamental right. Can any of these truly be matters the framers of the California constitution intended to leave to the whim of 50% of the voters, plus one?

In its marriage decision, a majority of the California Supreme Court wrote this:

"[T]he California Constitution guarantees same-sex couples the same substantive constitutional rights as opposite sex couples to choose one's life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage."

My bet is that the court that penned these ringing words will not at the end of the day permit our rights -- so recently recognized and so hard won -- to be so easily, so arbitrarily, and most significantly, so unconstitutionally snatched away.