dolfan wrote:Countersuits? No. But, counter-challenges? Yeah, and they're already in the pipeline.
So, here's the deal. They're arguing that the voters do not have the right to make this particular kind of constitutional amendment by ballot initiative. I don't know enough about California law to say if this is a good argument. But, that has to be the argument! They cannot say that the proposition's language itself is unconstitutional because, as it stands, the language IS part of the constitution of the state of California. You can't have a constitution that is unconstitutional as to itself. I'm not aware that the challenge is based on any federal rights of due process, either. Looks like, at least just in the news articles, this is a purely state constitutional issue and question.
Here's a summary of the situation as I understand it:
An amendment (i.e. addition/clarification) to the state constitution requires simply a majority vote of the electorate. A revision (i.e. substantive change) to the state constitution requires a 2/3 vote by the legislature affirmed by a majority vote of the electorate. Prop 8 was passed as an amendment; the argument being posed to the courts is that it is truly a revision and not valid as passed.
Two things muddy the waters. One, the distinction between amendment and revision is not clearly defined and has never been adjudicated. The second, and far bigger, muddying factor is the timeline of how things have played out this year.
A year ago Prop 8 would clearly have been an amendment. It is explicitly spelling out what until very recently had been the implicit culturally assumed and universally recognized meaning of the word "marriage" in state law. However, the state supreme court's recent ruling allowing gay marriage was based largely in the lack of such an explicit definition, in effect applying a definition of the word marriage which was foreign to the implicit standing definition. The argument now is that amending the constitution to more explicitly state what was previously the implicit meaning under law constitutes a
revision of the constitution because the ambiguous term has been adjudicated to mean something incompatible with that definition.
