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If you need a little help (like I do!) in understanding what’s going to happen this Thursday when the California Supreme Court hears the Prop 8 oral arguments, the LA Times has a very handy cheat sheet that neatly breaks down the arguments on both sides of the Prop 8 debate. It explains how the legal arguments will differ from the emotional ones, and it also shows how this fight isn’t about the Supreme Court Justices doing what’s right — it’s about them doing what’s right inside of the legal framework scaffolding this case. Both sides make compelling legal arguments, which make Thursday’s hearings just a little bit scary.

The easy way to think about these cases — and the way most non-lawyers are likely to do it — is to decide which side of the issue you’re on and root for that side to win. In other words, if you support marriage between same-sex couples, you’ll want the cases to succeed so that Proposition 8 will be overturned. If you believe men and women should only be allowed to marry each other, you’ll hope the lawsuits fail.

That’s fine. It’s outcome-based. But frankly, it has very little to do with what the Supreme Court is going to consider in the oral arguments.

Instead, the argument in the courtroom will be broader and more abstract. Who makes law in a democracy? What should we do when laws contradict one another? Who is the ultimate sovereign in the state of California — the people at the polls or their written Constitution or their appointed judges or their elected legislators? Can fundamental constitutional rights — inalienable rights — be withdrawn from one group but not another?

. . . Break down the arguments for us. What do the defenders of Prop. 8 say?

They make the simplest and cleanest argument. They say that when the Supreme Court was poised to declare their original law — Prop. 22 — unconstitutional, they did just what they were supposed to do. They decided to change the state Constitution itself, to safeguard their position once and for all. They gathered the necessary signatures, qualified Prop. 8 for the ballot and persuaded a majority of voters to approve it . . . . “The Constitution has now been amended, by the sovereign people who are its creators,” wrote the lawyers defending Prop. 8. “That is the beginning and end of this case.”

That does seem hard to dispute. Democracy is democracy, the people are sovereign and all that. What’s the other side say?

Opponents of Prop. 8 argue that although some changes to the Constitution can be made by a simple majority of Californians, others cannot.

They note that there is a difference between an “amendment” of the Constitution, which can be approved by a majority of voters, and a more substantive “revision” of the Constitution, which requires a two-thirds vote of the Legislature before it can get on the ballot.

Proposition 8 was passed as an amendment. But, opponents say, it should’ve been passed as a revision. [because it's so sweeping]. This may sound like a dry technical issue, one of process rather than substance. But don’t be fooled: It’s very much about substance.

. . . So who is right?

It’s very difficult to know how the Supreme Court will decide the amendment/revision question. The court has ruled about 10 times on this in the past, and has on just three occasions said that an amendment should have been passed as a revision.

And in those cases, how did the court distinguish a revision from an amendment?

The court has repeatedly said that the kinds of measures that must be considered revisions are those that would enact “far-reaching changes in our governmental framework.” That phrase has never been fully or clearly defined, but in general, the measures deemed revisions have tended to involve significant changes in the government’s underlying structure or in the separation of powers between the branches of government. Proposition 8 doesn’t fall easily in that category.

What’s the position of the state of California on all this?

Interestingly, Atty. Gen. Jerry Brown, who is a supporter of gay marriage, disagrees that Prop. 8 should have been passed as a revision.

Why?

He apparently doesn’t find it persuasive. He says Prop. 8 doesn’t fall into the category of very rare cases in which an amendment is insufficient and a revision is necessary.
So he’s backing Prop. 8?

No, he makes a separate, although not unrelated, argument of his own for why it should be struck down.

Brown argues that some rights are, as the California Constitution says in Article I, inalienable, and that means they cannot be taken away from a disfavored group by the state or even by the people themselves without, at the very least, a compelling justification. They can’t be taken away by amendment, and not by revision either.

Will his argument fly?

Well, the court is already on record as saying that marriage is a fundamental right. But the other part of Brown’s argument — that certain rights are truly inalienable and may not be rescinded, even by the people — is new and risky. Many people believe that constitutions are, and should be, changeable, if the proper process is followed.

The pro-Prop. 8 lawyers were not surprisingly underwhelmed by Brown’s argument, which they called “detached from reality,” and which they described as “the decidedly unorthodox view that natural law calls for this court to tear asunder the judgment of the people. This has never happened in California’s long and storied history.”

The full LA Times article is available here.