1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
2. Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution?
3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

You can find links here to all the briefs and arguments being made on both sides for an in-depth discussion of those issues. The gist of the argument for overturning Prop 8 hinges on a distinction in the California constitution between a “revision” and an “amendment. From one of the petitioners’ briefs (emphasis mine):

Although no case has set forth the precise metes and bounds that distinguish an amendment from a revision, this Court’s cases have made clear that measures that are consistent with the existing purpose and structure of the Constitution are permissible amendments, while those that seek to alter its core precepts are not. By abrogating the fundamental principle of equality for a group defined by a suspect classification, Proposition 8 plainly falls into the category of a revision.

Upholding Proposition 8 would establish, under California law, that any fundamental right can be taken away from any minority by a simple majority of their fellow citizens. The constitutional guarantee of equal protection, which the people adopted to protect minorities from majoritarian discrimination, would be transformed into a conditional guarantee.

I’m obviously no expert on California constitutional law, but it strikes me as a solid argument. But to me the whole notion of allowing any amendments to a constitution to be passed by a mere simple majority vote is a little nutty. That the framers of California’s constitution included the distinction between revisions and amendments is a saving grace, and it is difficult to conceive of when such a distinction would be more applicable than here. Equal protection provisions are the classic example of when countermajoritarianism is necessary and desirable, and California law has made clear that LGBT people are a protected class whereby strict scrutiny is applied to equal protection claims.

There’s the separate question of whether it would be politically helpful for the court to overturn Prop 8, or whether the backlash would be so strong as to be overwhelming. I’ve always been of the view that concerns about backlash are overblown. If Prop 8 is overturned, gay couples will start getting married in the most populous state in the union. While gay marriage will still be far from normal, it will become exponentially more commonplace, and the benefits to society will become stark and identifiable. And once that happens – however it happens – that’s the ballgame. Fear and loathing will increasingly give way to compassion and common sense. This isn’t a situation like abortion, where Roe gives legal protection to an unpleasant practice that some find murderous, making it easy to sustain a prolonged political movement in opposition. Pro-gay marriage decisions will give rise only to a bunch of very happy couples raising families. There might be a temporary backlash, sure, but it’s going to be awfully difficult to keep stirring up outrage over something so joyful and innocent.

As thinkers in Illinois debate ways to fill Obama’s seat, those calling for a special election have a big problem.  A current Illinois statute gives the Governor power to fill Senate vacancies. 10 ILCS 5/25‑8.  Passing a new state law to reverse the old one requires Governor Blagojevich to sign away his power.  And he doesn’t have to veto it, he can merely put it in a drawer and run out the clock on the Illinois General Assembly to kill the bill.

Amendment 17 of the US Constitution vests the determination of whether or not to empower the Governor with the appointment power solely with the state legislature. In 1943, the legislature gave the Governor power to make the appointment by passing the statute referenced above, 10 ILCS 5/25‑8.  I wonder if a joint resolution calling for a special election, revoking the Governors power in this specific case, would hold up.

While in almost all cases a joint legislative resolution would be trumped by a state law, this may be a special case because the 17th Amendment doesn’t give the governor a role in the determining whether or not the Governor gets to make the appointment, and to reverse the law the Governor plays a vital role: He has to sign the damn thing.

Because the authority at issue comes from the US Constitution, not state law, this may be a special case where a joint resolution could reverse a statute.

Finally, a few disclaimers:  (1)  I think there is a high probability this legal theory doesn’t stand up, greater than 50% chance this is nonsense; (2) I don’t think there is a chance this will happen because it would be foolish for Democrats to risk a special election. Good governance, sure, but smart politics, no way. And Madigan and Cullerton are both smart politicians; and (3) You may have seen this theory before, as I’ve posted it in the comments near the end of another thread, but I think its a novel enough thought/ situation that I wanted to raise it for discussion.