Understanding the Legal Challenge to Prop 8

The legal challenge to Proposition 8 rests on the distinction between a "revision" and an "amendment."

"In passing Prop 8, the people of California basically put an asterisk next to the equal protection clause in the constitution," said William Araiza, a professor at Loyola Law School in Los Angeles. Now, he said, "it fundamentally comes down to whether the court considers this a major change or not a major change."

Specifically, opponents of Proposition 8 argue that this kind of change is a "revision," not an "amendment." The distinction is important, legal experts say, because revisions require two-thirds approval in the legislature and then a popular vote. Amendments can be approved by popular vote only.

If, as opponents say, the court finds that Proposition 8 qualifies as a revision, then the proposition would be found unconstitutional because its proponents would have, in effect, skipped the required legislative step. If the court strikes down the initiative on these grounds, it is not certain the lawmakers would take up the issue again.

If the court sides with Proposition 8 proponents and allows the amendment, the recourse for gay rights activists would be to put the matter to voters again through their own initiative or take the matter to federal court -- something most activists are not ready to do, given the current composition of the Supreme Court.

Forty state legislators have signed a friend-of-the-court brief in favor of this argument that the proposition be voided. Via MyDD.

Meanwhile, slight credit where it is slightly due: the Governator speaks out against Prop 8 only one week too late.

"It's unfortunate, obviously, but it's not the end," Schwarzenegger said in an interview on CNN this morning. "I think that we will again maybe undo that, if the court is willing to do that, and then move forward from there and again lead in that area."...

Today, Schwarzenegger urged backers of gay marriage to follow the lesson he learned as a bodybuilder trying to lift weights that were too heavy for him at first. "I learned that you should never ever give up.... They should never give up. They should be on it and on it until they get it done."

And in fairness to Michele's earlier call of "bullshit" it must be admitted that I don't think Obama's said anything about Prop 8 at all.