Reversing Prop. 8 Isn't Worth Losing the Right to Self-Government

01/07/08 San Francisco Daily Journal (subscription required):

David Llewellyn is the author of this opinion article. He is a visiting law professor at Chapman University, and he was the founder, president and senior legal counsel for the Western Center for Law and Religious Freedom. (According to one report, this organization represented antiabortion group Operation Rescue; according to another report, it "filed a brief defending a local school district for banning Gabriel Garcéa Marquéz's novel, "One Hundred Years of Solitude.")

Llewellyn argues that if the California Supreme Court overturns Prop. 8, it would flout the will of the electorate, when it has the following reasons to uphold it:

1. State constitutional jurisprudence requires the Court to reconcile the conflict between Cal. Const. Art. 1, Sec. 1, and Art. 1, Sec. 7.5 (as added by Prop. 8), in favor of Sec. 7.5.

2. The Court does not have authority under Cal. Const. Art. 6 to invalidate Prop.8, because it can not use one provision of the Constitution to invalidate another.

3. Prop. 8 does not represent an unconstitutional revision. In People v. Frierson, 25 Cal. 3d. 142 (1979), the Court rejected an analogous, "revision" challenge to Prop. 17 (1972), restoring the death penalty, and the analogy is compelling.

4. The federal Defense of Marriage Act preempts the claims of the petitions in the Prop. 8 litigation.

5. The Court would violate the 14th Amendment guarantee of due process by invalidating Prop. 8. Due process requires the Court to give a "fair reading" of the California Constitution, but no such reading is available that would invalidate Prop. 8. Even if the Court "labeled," as "inalienable," the right to marry, that would remain subject to "legal modification."