Why Prop 8 Can – and Must – Be OverruledPaul Hogarthbyline‚ Nov. 13‚ 2008When SF City Attorney Dennis Herrera sued last week to overrule Proposition 8, I didn’t expect him to prevail – as much as I appreciated him trying. As wrong as it sounds, the initiative process allows a bare majority of California voters to change our state constitution – and with other states having passed similar marriage amendments, I couldn’t see how the courts would repeal it. But after having read Herrera’s well-written brief and done some legal research, I am now more optimistic that justice will prevail. Prop 8 was not your typical “amendment” that merely tinkers with the California Constitution. It was a drastic revision that deprives a “suspect class” (gays and lesbians) of a fundamental right under equal protection. And a simple majority vote of the people is not enough to take that right away – especially when the purpose of equal protection is to shield minorities. While other courts have upheld marriage amendments in other states, they have different Constitutions – and court rulings have changed considerably in a short period of time. And unlike many states, California has explicitly found sexual orientation to be a “suspect class.” If the Court overrules Prop 8, it will be a powerful affirmation for justice – capping what has been a powerful year of “change.” |