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The legal battle over Prop 8

ALEXANDRIA, La. (BP)–With California voters passing Proposition 8, a ballot initiative that amended the state constitution to restrict the definition of marriage to a union between a man and a woman, you would think the issue of “homosexual marriage” in the Golden State would be settled. Well, you would be wrong.

The California Supreme Court has agreed to hear several lawsuits seeking to nullify Prop 8, which overrode an earlier decision by California’s highest court that made “marriage” for homosexual couples legal.

The cases all claim that Prop 8 abridges the civil rights of a vulnerable minority group and that voters alone did not have the authority to enact such a significant constitutional change.

A component sure to be introduced in each lawsuit is the fact that the California Supreme Court previously had elevated sexual orientation to the same protected legal class as race and gender.

In order for those challenging the legality of Prop 8 to prevail they will have to convince the California Supreme Court that 1) homosexuals are a “vulnerable” minority group, 2) the voters in California do not have authority to change the constitution on such a significant issue, and 3) homosexuality is in essence in the same class with race and gender.

Those challenging Proposition 8 will have a very hard time making their case in any of the three aforementioned areas.

To assert that homosexuals are a “vulnerable” minority group in California, much less anywhere else in America, is almost laughable. Not only is homosexual accepted in every strata of society, but most of America’s major corporations provide special protections and benefits for homosexuals.

Adding to the difficultly of establishing that homosexuals are a “vulnerable” minority group in California is the fact that the Golden State already allows homosexuals to register as domestic partners, a legally recognized status that practically mirrors marriage and grants same-sex couples the legal benefits of marriage.

In order to invalidate Proposition 8, challengers will not only have to establish that homosexuals are a “vulnerable” minority group but also that California voters did not have the authority to amend the state constitution on “gay marriage.”

The California Constitution allows for amending the state’s guiding document, and changes to the constitution occur by either legislative or citizen initiative. If two-thirds of both houses approve of an amendment, it then can be brought to the people for a vote. However, Article 18, Section 3, of the same constitution states, “The electors may amend the Constitution by initiative.” This is what happened in the case of Proposition 8.

California citizens collected approximately 1.1 million signatures to qualify Prop 8 for the ballot. Subsequent to that, voters approved the measure by 52 percent in the recent general election.

Those challenging Proposition 8 contend that the voters had no right to annul the Supreme Court’s ruling. They assert that the measure is such a sweeping and structural change to the constitution that it should be invalidated. Prop 8, they say, should first have gone through the legislature, where revisions — that is, sweeping changes to the constitution — must be initiated.

A critical component to the case will be the protected status that homosexuals enjoy in California. When it comes to the issue of discrimination, the Golden State grants homosexuality the same standing as race and gender.

Homosexuality being given the status as race and gender is a legal farce. A person’s race and gender are inherent; it is fundamentally who they are. While homosexuals have tried to assert the same about sexual orientation, there is not one single study that has ever definitively concluded that homosexuality is inherent.

Law in America should be established on certainty and not “suggestions about possibilities.” Those defending Proposition 8 will have a perfect opportunity to submit this argument to the California Supreme Court.

If the California State Supreme Court will stay within the bounds of the law and out of the realm of social engineering, Proposition 8 will be upheld. Some legal experts believe the lawsuit is a long-shot, but don’t be shocked if the Golden State’s high court sides with the opponents of Prop 8. After all, we are talking about California where much of the time left is right and right is wrong.
Kelly Boggs is a weekly columnist for Baptist Press and editor of the Baptist Message (www.baptistmessage.com), newsjournal of the Louisiana Baptist Convention.

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  • Kelly Boggs