PROP-8 ISN'T THE LAW - YET; AND MAY NEVER BE

San Diego -- While Prop-8, which bans gay marriages by amending the state Constitution, narrowly passed; IT IS NOT THE LAW . . . yet. And, it may never become the law.

Our state Constitution provides in Art. XVIII for the procedure to amend that noble document. Section 4 says an amendment requires a vote of a majority of the electorate and "takes effect the day after the election."

Does that mean on Nov. 5th? NO!

First, all of the votes (provisional ballots and mail ballots) have not been counted.
The decisions of the election are not official until the results of the balloting (as compiled by our county Registrar of Voter's office) have been certified by the state's secretary of state.

However, a petition has been filed with the state Supreme Court contending Prop-8 violates the very state Constitution that it seeks to amend.

For example, if the voters approved an amendment that declared that all wives were the property of their husbands, that obviously would be declared unconstitutional and banned from enforcement.

Prop-22, which was approved by the voters in 2000 and created a new state law declaring that marriage was only between a man and a woman, was declared unconstitutional by the state's high court in March. That ruling validated gay marriages.

Now we have Prop-8 which eliminates a fundamental, legal right (to marry) for Gays, but it applies only to Gays. It appears that is a violation of the constitutional equal-protection clause, much the same as the earlier Prop-22 was also a violation of that equal-protection clause.

The high court's March decision is 160 pages long. It is very comprehensive!

There is a strong probability that the high court will accept the petition challenging Prop-8. (The court and its staff did so much work on that huge Opinion and they want it to be the law of the state.)

If the high court accepts the petition challenging Prop-8, all the parties involved will be asked by the high court to submit legal briefs on the issues in the petition recently filed. After the case is fully briefed, which could take months, the court will schedule a hearing on the petition. That hearing could take several more months to schedule. After the hearing, the court will have yet another three more months to issue a new ruling.

Meanwhile, Gays and Lesbians will continue to have the right to marry. That right has NOT been eliminated yet because the results of the election have not been certified.

And, don't believe everything you hear on TV. Several TV news programs - in their efforts to create yet another controversial story - have questioned whether gay marriages that have already been performed will be overturned.

That's highly unlikely. When an appellate court considers a case, it looks to the applicable law. The court will not add anything to its provisions. Unless an initiative specifically says that the law (e.g., constitutional amendment) applies retroactively, an appellate court will not make it so. Prop-8 does not say that it is to be applied retroactively, therefore it cannot be so applied.

Gay marriages already performed in California are safe!

Prop-8 may not survive the new challenge.
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Copyright 2008 by San Diego News Service (619) 757-4909 leopowerhere@msn.com