Strauss v. Horton

An amici brief filed by Public Justice and 40 other public interest groups and bar associations raises a key constitutional issue about California Proposition 8, passed in November to bar same-sex marriage in the Golden State: can a simple majority of the voting public “amend” the California Constitution to eliminate a minority’s fundamental rights or is the elimination of a minority’s fundamental rights such a critical, serious change to the California Constitution that it constitutes a “revision”?

As the brief notes, the difference is critical. Under California law, revising the Constitution requires approval by a Constitutional Convention or two-thirds of the legislature and, after that, public ratification. Public Justice argues that, no matter how one feels about same-sex marriage, a plain majority vote cannot be sufficient to eliminate anyone’s fundamental rights.

Proposition 8 was enacted after a firestorm of intense controversy and prompted a number of constitutional challenges filed by gay and lesbian couples, as well as governmental entities such as San Francisco, Los Angeles, and the County of Santa Clara.