The courts and Prop. 8

The legal challenge to Proposition 8 has six lawsuits going for it, a host of influential friends of the court and the governor’s opinion that the ban on same-sex marriage is unconstitutional. Whether the challenge has a chance is another matter.

An earlier version of this editorial mentioned “the intensity of emotion roused by the measure’s defeat.” Proposition 8 passed; the emotional outcry was over the defeat of legal same-sex marriage.

In a recent meeting with The Times’ editorial board, Gov. Arnold Schwarzenegger expressed confidence that the ban would be overturned because the California Supreme Court this year rejected an earlier ban, Proposition 22, as unconstitutional. The governor is being politically sensible but legally naive about this; the arguments against Proposition 8 hang on different precedents, issues and history.

The definition of marriage in the two initiatives is identical: “Only marriage between a man and a woman is valid or recognized in California.” But Proposition 8 embeds that definition in the state Constitution, and it would defy reason for the court to hold that part of the Constitution is unconstitutional. In challenging the measure, the lawsuits argue that it is not in fact a constitutional amendment, which requires only a simple majority of the popular vote for passage, but rather a constitutional revision, a fundamental change in the Constitution that entails a far more complicated approval process.

The state Supreme Court has never been all that clear on what it considers revision, but it has set the bar high, finding only twice that supposed amendments actually revised the Constitution. Measures that insert sizable passages on multiple issues seem to fall into the “revision” category; in a 1948 case, the court struck down an amendment that would have added 21,000 words covering various topics to the 55,000-word Constitution.

Proposition 8 lies at the opposite end of the spectrum, a mere 14 words that strip one group of people (homosexual couples) of one right (legally recognized marriage). The California court rejected similar challenges to the death penalty and to Proposition 13, both of which, it ruled, were properly considered amendments, not revisions. And this year, the Oregon Court of Appeals rejected a suit on same-sex marriage much like the current lawsuits -- Oregon’s Constitution has similar provisions on revision and equal protection. As a result, the legal challenge to Proposition 8is generally seen as a long shot.

Yet that doesn’t mean the suits are without merit. The California court has indicated that the quality of the change matters, not just its length or breadth. Gay-rights supporters, including the largest cities in the state and dozens of legislators, argue that by stripping a protected group of the right to marry, Proposition 8 nullifies the equal protection provisions of the U.S. and California constitutions. The Oregon court disagreed, but there is a potentially important difference between the two states: The Oregon Supreme Court has never ruled that marriage is a fundamental right under its state Constitution. The California Supreme Court has.

There are other legal precedents to consider. In 1996, the U.S. Supreme Court ruled against a constitutional amendment in Colorado that would have forbidden all laws that protect civil rights for homosexuals. The ban violated the equal protection provisions of the 14th Amendment, the court wrote, by singling out one group to be denied the rights enjoyed by all others.

But there also are differences between the Colorado and California measures. In Colorado, gays and lesbians were denied legal protection against discrimination in housing, employment and other basics of life. The court cited the breadth and basic nature of these rights in its ruling, saying there could be no legitimate state interest in the measure, simply animosity toward one group; in contrast, same-sex marriage is both newer and narrower, though, according to the California high court, an equally basic right.

Although we too will welcome the day that Proposition 8 is consigned to history and the right to same-sex marriage is restored to Californians, we are sorry to see that the court agreed to take the cases directly, rather than letting this issue percolate up through the lower courts. We see no reason for the haste, despite the intensity of emotion roused by the measure’s victory. In fact, that very heatedness is a reason for the court to move slowly, allowing it to rule under cooler circumstances.

Similarly, painful though it is to see Proposition 8 take effect, we agree with the court’s decision to allow it to stand as law until the court rules. This is a hateful measure, passed after a campaign of misleading scare tactics, but it did pass. Suspending further same-sex marriages while the litigation proceeds will delay theexercise of this fundamental right, but we are a democratic nation and one bound by the rule of law; until voters reconsider or the courts decide otherwise, there is no optionbut to stop issuing marriage licenses.

Many voters will claim that the courts should have no jurisdiction at all. Just as they did after the California court’s May ruling that legalized same-sex marriage, these people will complain about “activist judges” potentially subverting the will of the people. Maybe schools need to strengthen their civics lessons so that future voters will understand that supreme courts specifically are charged with ruling on constitutional questions -- and it is a sacred and historic role of the courts to protect minority rights as enshrined in state and federal constitutions. Indeed, if courts merely existed to ratify the will of majorities, they would add little to our society.

The California Supreme Court could rule either way on whether Proposition 8 amounts to a constitutional revision, but the issue demands its attention. The court already has found that same-sex marriage is a fundamental right; now it has the opportunity to fulfill its constitutional obligations to guard against the tyranny of the majority and to ensure that elections do not become vehicles of repression.