Unlike the marriage ban amendments in other states, which for the most part have survived legal challenge (for now), California's Proposition 8 has a very good chance of being overturned by the state Supreme Court.
Of course, all of these bans violate the equal protection clause of the 14th Amendment of the U.S. Constitution, and therefore we know that eventually they will all be overturned. But in almost all cases, we have had no recourse in state law--after all, an amendment to the Constitution can't be ruled unconstitutional, can it?
In the case of California's Proposition 8, yes it can.
What's different about California is that the very process of voting on fundamental rights for a suspect class of citizens is plainly illegal based on California's constitution.
Disclaimer: I am not an attorney, and I hope others who are will weigh in here, but here's my understanding of the legal challenge that could prevent Proposition 8 from taking effect.
AMENDMENT OR REVISION?
As the LA Times summarizes,
Article 18 of the state Constitution provides that the document can be changed by amendment or by revision. An amendment may be enacted by initiative with a majority vote, whereas a revision must first be passed by two-thirds of the Legislature before being submitted to the voters. (California's Legislature has voted twice in recent years to legalize same-sex marriage, but the governor vetoed it.)
Does Proposition 8 qualify as a revision? Under the case law, it's a revision only if it "substantially alters the basic governmental framework set forth in our Constitution." Proposition 8 does exactly that, its opponents say, by eliminating a fundamental right for a specific group, and by limiting the judiciary's constitutional role in enforcing equal protection and privacy guarantees.
DIDN'T THE COURT ALREADY RULE ON THIS QUESTION?
Opponents of Proposition 8 asked the court to prevent Proposition 8's inclusion on the ballot on these grounds, and the court dismissed the request. However, there was no ruling on the merits--the court is properly reluctant to deliberate on something that has not yet happened but might in the future.
HASN'T THE COURT DENIED THIS KIND OF PETITION BEFORE?
The LA Times article cautions that
Historically, however, the court has taken a narrow view of what kind of measure "substantially alters the basic governmental framework." For example, neither Proposition 13, which capped property tax rates, nor Proposition 140, which imposed legislative term limits, were held to be a revision of the Constitution despite their far-reaching transformation of state government. Moreover, a 1972 initiative that reinstated the death penalty after the court had declared it cruel and unusual punishment was also deemed an amendment, not a revision, even though it directly limited the judiciary's power to declare fundamental rights.
What the LA Times doesn't mention is that Proposition 8 differs from Proposition 13, Proposition 140, and the 1972 initative reimposing the death penalty in some important ways: It eliminates a right (rather than just clarifying the extent of the right), and it applies only to one group of people.
Had Proposition 13 aimed to cap property tax rates only for women, or Proposition 140 tried to impose term limits only for people of Japanese descent, or the 1972 initiative intended to reimpose the death penalty only on African Americans, would the court have let those stand? No way.
As the Amended Petition for Extraordinary Relief explains:
To the extent the initiative amendment at issue in Frierson limited an important constitutional right, it did so for all Californians alike. In this case, the issue is not whether the voters can amend the Constitution to alter the fundamental right to marry for all Californians (for example, to take away a particular marital right or to change the name of the institution for all couples). Rather, the issue is whether voters can eliminate the fundamental right to marry only for a particular group, based on a classification this Court has held to be suspect under the California Constitution's equal protection guarantee. The answer to that question is "no", just as it surely would have been "no" if the issue in Frierson had been whether the voters could amend the Constitution to re-impose the death penalty only for persons of a certain sex, race, religion, national origin, ethnicity, or sexual orientation.
S168047 p. 39
If some nefarious groups manage to convince voters to pass a constitutional amendment banning Catholic and Mormon people from holding public office, will the court let it stand? No way.
This same California Supreme Court just ruled less than six months ago that marriage is a fundamental right, and that sexual orientation is a subject classification, so laws applying to LGB people vs. heterosexual people are subject to strict scrutiny.
Will this court let Proposition 8 set the precedent that a simple majority of the electorate can remove fundamental rights from a suspect class of citizens? We'll find out, but I'd put my money on "No way".
The petition for writ of mandate forbidding enforcement of Proposition 8 and related documents are online at http://www.courtinfo.ca.gov/... if you want to skim through the reasoning yourself.
Again, I am not a lawyer, and I welcome correction from legal experts. This is just my guess based on my layperson's reading of the law and the situation.