Ashby Jones
The Wall Street Journal Blog

Proposition 8, which bans same-sex marriage in California, faced a constitutionality test but was upheld.

Tuesday was a bad day for opponents of Proposition 8 for an obvious reason: the California Supreme Court upheld the ballot initiative, passed last November by California voters and which bans same-sex marriage in the Golden State.

But once these same opponents finish reading the court’s 136-page decision and digesting what the justices had to say about revisions to the state constitution, they perhaps had even more reason to feel chagrined.

This LA Times article lays out the issue well.

At issue in the case was whether Proposition 8 was properly defined as a constitutional revision or a constitutional amendment. The former requires an act of the legislature; the latter can be effected by a popular vote. In describing Proposition 8’s “limited effect,” the majority said that simply reserving the term “marriage” for opposite-sex couples “does not have a substantial, or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment.” [emphasis in original]. In other words, in order for a constitutional change to be deemed a revision — and therefore require legislative action — the change need alter the “governmental plan or framework of California.”

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