Calif.'s Prop. 8: It's Not Over Till It's Over

California's one last hope for killing Proposition 8 -- the ballot initiative that would reverse the right of same-sex couples to marry by amending the state constitution -- died this week when the California supreme court, without comment, refused to hear a legal challenge to the measure put forth by the National Center for Lesbian Rights, Lambda Legal, the ACLU and others before the November election.

The groups essentially argued that Prop. 8 would effect so major a change to the California Constitution that it could only be put to the voters by a two-thirds vote of the state legislature or a constitutional convention, not simply as the result of a signature drive.

But take heart. Far from being over, the battle over Prop. 8’s validity has not yet even been joined. All the court did Tuesday was to say, in effect, “We’re not going to hear these challenges before the election.” If Prop. 8 passes on November 4, all the challenges will be there waiting on November 5, and one of those challenges in particular is powerful indeed.

Let’s review: In 2000, California voters approved Proposition 22, which amended a section of the California Family Code to read, “Only marriage between a man and a woman is valid or recognized in California.” Significantly, Prop. 22 resulted in a statute. It didn’t change the state’s constitution. Statutes must comply with the state and federal constitutions, and if they don’t, the courts are charged with striking them down, at least in theory.

That’s exactly what the California supreme court did in its May 15 decision – it ruled that Prop. 22, the statute, violated our state constitution in two major ways. First, the court held that gays and lesbians, like everyone else, enjoy a “fundamental right” to marry under the constitution’s due process and privacy clauses, and that Prop. 22 violated that right. A “fundamental right” is one the government can’t take away from anyone without a compelling reason. Freedom of religion, free expression, and voting are other fundamental rights. California’s is the first state supreme court to recognize the fundamental right of gays and lesbians to marry, according to Lambda Legal.

Second, the court held that by permitting heterosexuals to marry the person of their choice, but denying gays and lesbians that same right, Prop. 22 violated the California constitution’s “equal protection” clause. The equal protection clause forbids the government from treating “similarly situated” citizens differently without some reason. How compelling that reason has to be depends on the right at issue, and who’s being deprived of it. If the right is “fundamental,” or the unequal treatment is based on a “suspect classification,” the court must apply what’s known as “strict scrutiny” in deciding whether the law is constitutional.

In its marriage decision, the California supreme court held that Prop. 22 qualified for strict scrutiny on both grounds.

First, the court ruled that the law impeded the fundamental right to marry. Second, the court recognized that Prop. 22 harmed gays and lesbians while leaving everyone else alone, and then held that sexual orientation was a “suspect classification,” deeming gays and lesbians worthy of the same protections afforded to other marginalized groups such as African-Americans and women that have historically suffered discrimination. The idea behind suspect classifications, sometimes called “suspect classes” or “protected classes,” is simple. If a statute harms members of one of these protected groups more than others, there’s a suspicion of discriminatory intent, which binds the courts to scrutinize that law strictly. Long story short, statutes almost never survive the lens of “strict scrutiny,” and Prop. 22 was no exception.