Dear Friend and Reader,
Yesterday morning, the State Senate and Assembly of California passedВ Resolution 7, introduced by Senator Mark Leno and Equality California, which states their opposition to Proposition 8. This is the strongest message a state congress can possibly send.
California Congress’ primary argument against the proposition that banned same-sex marriage in California is that it usurped the standard legislative process. To alter the Constitution in California, which Proposition 8 did by changing the definition of marriage, certain procedures must be followed. These procedures are outlined in Article XVIII.
Article XVIII describes how to revise the California state constitution. It states that the change must originate in the state legislature, and be approved in both houses by a 2/3 majority. After this, the revision can be brought up for a vote.
By skipping this important step in the legislative process, theВ Proposition 8 В vote circumvented whole system of checks and balances that California law relies on.
This all seems straightforward enough, but it’s actually a cover for the massive semantic argument occurring in the Golden state. William Eskridge, who is the Bono of gay and gender-related legislation and theory, explained the debate in his amicus curiae brief againstВ Prop 8: [an amicus curiae is a paper that can assist the court in a legal proceeding, provided the person is not directly involved in the case.] You can read Eskridge’s brief here, in pdf form.
It all comes down to two words and their shaky definitions: revision and amendment. A constitutional revision is a big deal: it makes a substantial change to existing law and has to go through the process described in Article VIII, while an amendment is less significant: it’s a clarification or a slight tweak, and can be changed with a public vote.