Lemme Be All Lawerly For A Minute

OK, so the California Supreme Court agreed to hear the cases challenging the validity of Prop 8. And folks are wondering exactly what basis there could be to challenge Prop 8.

I read some of the submissions to the court (they're out there on the court's website for your own persual) and have a bit of a handle on it. In some ways, it's awful technical (in which case any decision by the court overturning Prop 8 might be seen as the court being all activist and using legal technicalities to override the will of the people). But in other ways, it's downright fundamental.

The idea, basically, is that -- according to the California Constitution itself -- the Constitution can be amended by a simple majority vote of the people on an initiative measure, but if it's going to be revised, you need a two-thirds vote of the Legislature first.

The big question -- and the one to which I have no idea how the court is going to rule -- is whether Prop 8 constitutes an amendment or a revision.

But here's how the argument goes: the Supreme Court has determined that the existing Equal Protection clause protects against unequal treatment of gays and lesbians when it comes to marriage. Prop 8 revises that, saying that the Equal Protection clause no longer means what it used to mean. And that's just too fundamental of a change to be handled as an amendment. Because it radically undermines the existing constitution.

Or, let me put it more concretely. The latest estimates regarding California's demographic breakdown say that non-Hispanic white people are only about 43% of the population. So, let's suppose that someone decides to put on the next ballot the constitutional amendment that non-Hispanic white people have to pay twice as much in taxes as they used to, while everyone else pays nothing. And the 57% of the population that would not have to pay taxes under that deal thinks it's a brilliant idea, so the initiative passes.

And the white people who all of a sudden have to pay double taxes would say, "Dude, this is a TOTAL violation of Equal Protection -- what with treating us unequally with respect to the tax burden simply because of the color of our skin." And the folks who passed the initiative would say, "Tough darts; we amended the Equal Protection clause to not apply to you guys when it comes to taxes."

And the white people would say, "What the hell is the point of having an Equal Protection clause if it can be overridden by a simple majority vote?"

And that's basically the argument. Like I said, I don't know whether it's going to fly -- but the issues that it raises involve an awful lot more than whether gay marriage should be permitted in California -- it's really about who gets to make the final call on the meaning of the constitution, and how easily fundamental rights can be taken away.