So it wasn’t settled by the voter referendum, after all.
California’s Supreme Court decided today to hear a legal challenge to
the passage of Proposition 8 on election day.

On what basis?

Gay rights advocates argue that the measure was actually
a constitutional revision, instead of a more limited amendment. A
revision of the state Constitution can be placed before the voters only
by a two-thirds vote of the Legislature or a constitutional convention. 

Lawsuits to overturn the initiative contend it was a revision
because it denied equal protection to a minority group and eviscerated
a key constitutional guarantee. Supporters of Proposition 8 counter
that it merely amended the constitution by restoring a traditional
definition of marriage.

The specifics of those lawsuits will be very interesting to see.
This apparently becomes another case of who can produce the most
convincing argument, either by purely invoking constitutional law, or
by deftly performing semantic gymnastics.

What constitutes a “minority group” covered by the provision of
“equal protection” in the rule of law? And what is the “key
constitutional guarantee” that was “eviscerated” in Proposition 8?

Minority groups have historically been known in America to be those
based on race, gender or ethnicity. That covers a lot, and it’s all
about a person’s inherent identity. In other words, who they are. At issue in Prop 8 is same-sex marriage, or what people do.
And the fact that those who are contending they want equal protection
as a minority group are homosexuals who do regard what they do as
intrinsic to who they are.

But the arguments haven’t been that nuanced. They’ve been loud and
angry and at times violent. As a result, both sides of the Prop 8 issue
want this clarified in the state’s highest court.

The day after the election, news reports indicated this vote was the
final word. So how can the state supreme court take it up again?

While it’s unusual, it’s not unprecedented. Especially in highly controversial cases.

Although the court tends to defer to voter sentiment on
initiative challenges, it has overturned popular ballot measures in the
past.

But this case has generated so much activism, Prop 8 backers who secured a victory they considered final, have issued a warning:

Supporters of Proposition 8 have threatened to mount a recall of any justice who votes to overturn the measure.

It’s another California wildfire authorities have to put out, one way or another.

If the court had dismissed the suits, they could have
been refiled in a county Superior Court, where most cases begin. They
could still have reached the state’s high court, but only after lengthy
appeals.

“We could have been looking, easily, at two or three years of
litigating this issue” if the court had denied review, said Shannon
Minter, legal director of the National Center for Lesbian Rights and a
lawyer for same-sex couples in one of the suits. “It’s a great relief
that the court recognizes the importance of resolving this quickly.”

Never mind that the voters thought they already had.

Funny, how language and belief determine our perception of justice.
When the latest abortion ban went down to defeat in South Dakota, and
pro-abortion movement boldly declared that their victory proved the
case was closed, the voters had spoken, and the pro-life movement had
better not even try to challenge legal abortion again.

Although, they don’t consider it settled, either.

Sheila Liaugminas

Sheila Liaugminas is an Emmy award-winning Chicago-based journalist in print and broadcast media. Her writing and broadcasting covers matters of faith, culture, politics and the media....