On March 5, at the oral argument in the case where the constitutionality of Proposition 8 is being challenged, the California Supreme Court seemed to be grappling with a question that is really quite easy to resolve as a legal matter. The case becomes difficult only if politics is allowed to creep in.
Prop 8 defines “marriage” as a union between a man and a woman. It was enacted as an “amendment” to the California Constitution by means of a ballot initiative in November. Prop 8 was an effort by the opponents of same-sex marriage to overrule, in substantial part but not entirely, the California Supreme Court’s decision last May in In re Marriage Cases . That was the decision in which the Supreme Court outlawed an identically worded prohibition against same-sex marriage (Prop 22), which had been adopted as a statute (inthe California Family Code) rather than as part of the Constitution. The court in the marriage cases held that such a restriction violated the right of same-sex couples to enjoy “equal protection of the laws” as required by Article I of the California Constitution.
