Opponents argue that the ballot initiative amounts to a revision of the state constitution.
The California Supreme Court will revisit the issue of same-sex marriage, this time to decide between the democratic will of the majority versus the rights of a minority.
The court agreed Wednesday to hear legal challenges to Proposition 8, the voter-approved ballot initiative that amends the constitution to end same-sex marriage. Oral arguments aren't expected until March. For the time being, gay couples will not be able to get married in California as the court refused to grant a stay.
The lawsuits, filed by a coalition of gay-rights groups and cities, argue that Proposition 8 represents a major change to the constitution – a revision rather than a commonplace amendment. Revisions require two-thirds support from the legislature before heading to the ballot, a standard that almost certainly could not be met.
Attempts to throw out initiatives on these grounds are rare, and have almost always failed. The petitioners, however, say that what happened at the polls earlier this month was truly unprecedented.
"The fact that [Proposition 8] is such an extraordinary attempt to take this precious right away from a vulnerable group means there is not a lot of precedent," says Jenny Pizer, senior counsel for Lambda Legal, one of the gay-rights groups behind the suits.
While many Californians may not believe that same-sex couples have a "right" to marry, the Californian Supreme Court said they do in its landmark marriage case in May. Voters then passed Prop 8 to explicitly define marriage as "only between a man and a woman."
Courts have an obligation under the equal protection principle to safeguard the rights of minorities against infringement by a majority. This is particularly true in cases involving groups like gays and lesbians who have traditionally faced discrimination.
Since Proposition 8 makes it impossible for courts to step in and enforce equal protection of marriage rights, the measure is a "change to the fundamental government structure," argues Ms. Pizer. Those magic words represent the definition of a constitutional revision, as opposed to a simple amendment.