The ACLU, Lambda Legal, and the National Center for Lesbian Rights have filed a suit challenging the validity of recently passed California Proposition 8. They have asked for enforcement of the ban on same-sex marriages to be stayed pending the resolution of their challenge, which alleges that Proposition 8 is invalid because it is a constitutional revision rather than a constitutional amendment. (N.B.: They describe the difference between a revision and an amendment on p. 15 of their petition as follows: (1) a constitutional amendment “seeks to elaborate or improve upon existing constitutional principles,” while (2) a constitutional revision “seeks to change the ‘underlying principles’ upon which the Constitution is premised.”) As a constitutional revision, they argue, the ban on same-sex marriage cannot be enacted through the initiative process, as it was, but, under the constitution, must be considered and passed by supermajorities of both houses of the legislature prior to being submitted to the voters or to a constitutional convention. Because Proposition 8 did not follow the more deliberative process prescribed for constitutional revisions, they argue that it is invalid.
This argument, which apparently has been successful in the past, calls to mind an article by Carlos E. GonzÃ¡lez, Popular Sovereign Generated Versus Government Institution Generated Constitutional Norms: When Does a Constitutional Amendment not Amend the Constitution?, 80 Wash. U. L.Q. 127 (2002). In that article, Gonzalez, focusing on the federal constitution, argues that not all constitutional provisions are created equal:that there may actually be a hierarchy of constitutional norms based on the democratic legitimacy of their source. As a result, Gonzalez argues, certain constitutional provisions might be immune from repeal by a later amendment. I’m not sure that this article would be of particular help to those litigating this case, but, if any of them (or their friends or colleagues!) are reading this post, they might want to give a glance at Gonzalez’s article.