The following are arguments against Proposition 8, with responses supporting Proposition 8. These arguments do not address the underlying issue of whether same-sex marriage is good public policy; they only address whether Proposition 8 was properly passed via the initiative process.

“Prop 8 Revises, Rather than Amends, the Constitution”

• A revision requires a "substantial change" to the "underlying principles" of the entire constitution. Applying the historic definition for marriage to all citizens equally constitutes a valid amendment.  Article 2, Section 8 of the state Constitution clearly sets forth the initiative process as a valid means of amending the Constitution. Codifying the definition of marriage via Proposition 8 was a proper amendment to the state Constitution.

“Undermines Equal Protection”

• Equal Protection under the Constitution requires laws be applied regardless of an individual’s characteristics or situation, just as justice is administered blindly. Proposition 8’s amendment applies the definition of marriage equally, to heterosexuals, homosexuals, bisexuals and all legal adults. Proposition 8 is actually the perfect example of a law that applies equally to all citizens.

“Eliminates Fundamental Rights”

• Proposition 8 does not eliminate a fundamental right for only minority groups. It places the restrictions of marriage on all citizens equally. Just as same-sex individuals may not marry, so heterosexuals may not engage in polygamous relationships. There is also no fundamental right to marriage. That “right” was created by the California Supreme Court when it overturned Proposition 22.

“Violates Separation of Powers Doctrine”

• Proposition 8 and the initiative process do not “strip the courts” of their constitutional function. In fact, Proposition 8 was a direct response to the California Supreme Court’s violation of the separation of powers doctrine. By striking down a law passed via the constitutional initiative process, the Court overstepped its authority and usurped the powers of the legislative branch and the constitutional initiative process. 

Questions:

1. The resolution emphasizes the importance of the separation of powers doctrine, but doesn’t this resolution violate the doctrine by directing the judicial branch’s decisions?

2. How does Proposition 8 violate Equal Protection when it applies equally to all citizens?

3. Why is the legislature spending money on this issue when we are in a budget crisis? We are using taxpayer dollars to overturn an initiative they just passed.

4. Aren’t we defying the separation of powers by even debating this issue when the court will be hearing it next month?