Prop. 8 court challenge

Paul Hogarth, columnist for the San Francisco Chronicle writes today that he is now optimistic that Prop 8 (denying gays right to marry) will not stand, based on reading the lawsuit by SF City Attorney Dennis Herrera:

… after having read Herrera’s well-written brief and done some legal research, I am now more optimistic that justice will prevail. Prop 8 was not your typical “amendment” that merely tinkers with the California Constitution. It was a drastic revision that deprives a “suspect class” (gays and lesbians) of a fundamental right under equal protection. And a simple majority vote of the people is not enough to take that right away – especially when the purpose of equal protection is to shield minorities. While other courts have upheld marriage amendments in other states, they have different Constitutions – and court rulings have changed considerably in a short period of time. And unlike many states, California has explicitly found sexual orientation to be a “suspect class.” If the Court overrules Prop 8, it will be a powerful affirmation for justice – capping what has been a powerful year of “change.”

… Dennis Herrera’s lawsuit on behalf of the City and County of San Francisco – which Santa Clara and Los Angeles Counties have now joined – highlights a critical distinction in California’s Constitution that gives me hope. Even if voters pass a Constitutional Amendment, the courts can still decide if it was merely an “amendment” – or a substantive “revision.” And if it was a “revision,” voter approval by a simple majority is not enough – it also requires an okay by the state legislature (which probably wouldn’t happen), or a constitutional convention. Why the distinction? Because mere “amendments” tinker around the edges; “revisions” are far more fundamental changes.

And the Courts have thrown out such changes to the Constitution as “revisions” under the right circumstances.

For all those who deserve to marry (and divorce) just like the rest of us I hope the challenge will prevail.

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