Is California’s Proposition 8 Unconstitutional?

As reported earlier on this blog, the short-lived legality of same-sex marriage in California appeared to be over because the citizens of California approved Proposition 8 (an amendment to the California constitution) which restricts marriages to opposite-sex couples.

But, a claim has now been made to the California Supreme Court that the constitutional amendment itself is actually unconstitutional.  The argument is being advanced that the 14 word amendment is actually a “major revision” to the constitution, rather than an amendment.  As such, it would require legislative approval to be effective.

According to Dean Erwin Chemerinsky (UC, Irvine), “The California Supreme Court has never articulated criteria for what makes something an amendment versus a revision.”

See Jesse McKinley, With Same-Sex Marriage, a Court Takes on the People’s Voice, NY Times, Nov. 21, 2008.