How Constitutional is Proposition 8?


For students who did not understand the legality of passing Proposition 8 in the last election, student groups and professors held a forum that sought to demystify the complex legal issues of the law suit challenging Proposition 8’s ban on gay marriage.
Professor Katherine Darmer of the Chapman University School of Law addressed a packed room of about 200 attendees at last Tuesday’s “Is Proposition 8 Legal? A Forum on Marriage Equality” regarding the suit that is set to be heard in California’s Supreme Court in early March.
“The Saturday after the election, a number of us were devastated by the passage of Proposition 8 and there was sort of a groundswell of support to do something about it,” Darmer said.
The forum was hosted by the University of California and featured Irvine’s new law school in conjunction with UCI’s Lesbian, Gay, Bisexual, Transgender (LGBT) Resource Center, the Orange County Equality Coalition and Chapman University Outlaw, a LGBT student organization.
James Nowick, a professor of chemistry at UCI, organized the panel. He said, “Universities are places where ideas are exchanged, political views are aired, often their testing grounds on human rights issues. So universities have always been incubators of political activism and of social change.” He felt that “there is an obligation for the university to communicate more broadly … to the broader communities” and that is why he and the other organizers felt this panel was so important.
The three panelists included Darmer, Tiffany Chang, a second-year at Chapman Law and Erwin Chermerinsky, dean of UCI’s Law School and long time advocate of marriage equality.
Professor Darmer, who filed a “friend of the court” brief on behalf of numerous Orange County groups and individuals seeking to invalidate Proposition 8, began her speech by questioning the audience.
“Remember that this is not the first time that groups in our country have to fight for their right to marry the person of their choice,” Darmer said.
She compared the current ban on gay marriage to the former bans on interracial marriage that were in place during the last century.
She noted that it was “the state of California that realized how wrong those rules were 19 years before the Supreme Court of the United States” invalidated the bans in 1967.
“[California] has often taken a leadership role in recognizing the important and fundamental tenants of equal protection,” Darmer said.
This makes the “14 words of Proposition 8” all the more devastating because it adds “a footnote the guarantee [of equal protection],” Darmer said.
She then reminded the audience of the personal lives that are affected by these legal issues.
“This is not just a dry academic issue. This issue about the fundamental right to marry affects real people, real lives,” Darmer said.
Chang, one of the other panelists, is one of those real people. She married her partner Lindsay Etheridge in 2008, during the May to November period when 18,000 official same-sex marriages were performed in the state of California.
“[I voted] ‘yes’ for the first African-American president and ‘no’ on a measure that sought to strip another minority of fundamental rights” Chang said, noting the devastation she felt when Proposition 8 passed.
“I am no Constitutional law scholar … [but from] where I’m standing I see the legal differences, I feel the legal differences and that means that I am not equal,” Chang said.
Dean Chermerinsky agreed with both speakers that Proposition 8 was an “enormous setback” for the marriage equality but added that he still “believes [that] in [his] lifetime same-sex marriage will be allowed throughout the United States.”
Like Darmer, Chermerinksy said that, “The issue of marriage equality is a relatively easy one, it is about equal protection. Gays and lesbians should have the same right to express love and commitment to a marriage as heterosexuals have always had.” He drew laughs from the crowd when he added that they should also have “the same opportunity to be disappointed by marriage that heterosexuals have always had.”
After pointing out the weaknesses in the most common arguments made against marriage equality, Chermerinksy then proceeded to explain the central legal question at issue in the court case: whether Proposition 8 is an amendment to or a revision of the state Constitution or not.
The difference is highly obscure in that there have only been a “handful” of cases that deal with the issue. Essentially, though, the main difference is that a revision “changes fundamental principles of the Consitution” and must be approved by a two-thirds majority vote in both houses of the state legislature as well as a majority of voters. An amendment, on the other hand, does not change any fundamental principle and can be added by a simple majority of voters. If the Court decides that Proposition 8 is an amendment, it is legal and stands. If it is a revision, it is invalid and must be repealed.
“The math [seems to] favor supporters of Proposition 8 not opponents of Proposition 8,” Chemerinsky said, discussing the 4-3 split of the Court when it struck down a previous ban on gay marriage.
“[Supporters of proposition 8] only need to get one other vote, while opponents have to keep all four,” Chemerinsky said.
It is likely that Proposition 8 will be upheld, but that it will not be made retroactive. Thus, all marriages performed between May and November of 2008, like Chang’s, will remain legal.
However, Chemerinsky offered some hope for those who still hope for a complete invalidation of the ban.
“Those who [make predictions] often eat broken glass,” Chemerinsky said.
According to Chemerinsky only one truth remains clear.
“The California Supreme Court will issue its decision within 90 days of March 5. California law provides that the justices don’t get paid if they don’t get a decision,” Chemerinsky said.

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