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Prop. 8 banning gay marriages prompts lawsuit

This article first appeared in the St. Louis Beacon: November 6, 2008 - The most immediate question raised by passage of Prop. 8 is the validity of marriages performed after the May court ruling and before passage of Prop. 8.  California Attorney General Jerry Brown says those marriages are legal, but not everyone agrees.

The proposition says that "only marriage between a man and a woman is valid or recognized in California." That would seem to cover all marriages. Supporters of Prop. 8 also point out that language on the ballot told voters they would be defining marriage as between a man and woman, "regardless of when or where performed." But Brown disagrees and opponents of 8 point out that the title of the proposition mentions elimination of the "right of same-sex couples to marry." That would seem to apply to future marriages.

Eugene Volokh, a constitutional law professor at UCLA, has analyzed the possible outcomes. One possibility, he says, is that the state supreme court will simply convert gay marriages to same-sex unions, with most of the rights of marriages.

A more far-reaching challenge to Prop. 8 has been filed by Lambda Legal Defense and Education Fund and the ACLU. It argues that Prop. 8 was not properly enacted because it was a constitutional "revision" rather than an "amendment." Revisions are for more serious changes to the constitution. Two-thirds of both houses of the legislature must agree to put a proposed revision on the ballot. That did not happen with Prop 8. The legislature had indicated it approved of the state supreme court decision, so it would not have put a revision on the ballot.

Volokh argues that Prop. 8 was not a revision, but rather an amendment that was properly enacted.

The Wall Street Journal has a good blog on the legal issues, Andrew Sullivan's Daily Dish has a favorable comment about the lawsuit and a link to it, and Volokh analyzes the issue on his blog.

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