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06 Nov 2008 01:14 pm

The Prop 8 Legal Challenge

A California legal reader I trust writes:

I've just read the NCLR brief challenging the validity of Prop. 8, and it is not at all frivolous: The difference between a constitutional "revision" and a constitutional "amendment" is quite important under California constitutional law, and I have worked on cases dealing with it in the context of insurance regulation.

Briefly, an amendment to the constitution may be accomplished by a simple vote of the people, but a revision to our constitution must begin in the Legislature and then go to the voters.

In my opinion, this brief makes a very good legal argument which, in a non-political context, would be pretty persuasive. However, we have here a hyper-political context, and I think the courts will have a very hard time overruling Prop. 8. Still, I think this is a responsible brief -- if a dangerous and risky political move.

Eugene Volokh counters here. I'm no legal expert, but as a political matter, I do not favor litigating this. I favor continuing the work in educating people about marriage equality, about gay couples, and the good, integrative effect of allowing this reform. And I think the greatest way to do this will not be lawsuits but the witness and example of thousands of legally married couples in California. That's how fears of miscegenation abated in time: seeing inter-racial couples live and breathe defused the opposition. Remember, the anti-marriage equality forces lost over ten points in eight years in two consecutive initiatives. We're winning. Just not all the time.

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