The Mormons and other homophobes behind California's Proposition 8 intended to ban same sex marriage have run into a legislative wall.
California legislators say the proposition is invalid because it attempts to rewrite the state constitutionl, something within the power only of the legislature itself.
Just days before a historic state Supreme Court hearing on Proposition 8, the Legislature approved a resolution Monday declaring that voters alone did not have the right to adopt the gay-marriage ban.
The nonbinding resolution contends that Proposition 8 – which defines marriage as between only a man and a woman – was an improper revision of the state constitution. Sweeping revisions can only be adopted, the resolution says, if they originate in the Legislature, gain two-thirds approval in that body and then win approval by voters.
The resolution also states that Proposition 8, which voters approved in November, oversteps the authority of the courts to enforce equal protection and prevent government discrimination.
"We're talking about a radical revision to our constitution," said Sen. Mark Leno, D-San Francisco, an openly gay member of the Legislature who sponsored the resolution.
"Do we have a constitutional democracy in California," Leno asked, "or do we have mob rule, where a majority of Californians can change the constitution at any time?"
It seems logical enough. Why should a bare majority of a minority of eligible voters be allowed to do what takes a 2/3rds majority in the legislature followed by voter endorsement?
When the question comes before the courts, California's attorney-general will argue that Proposition 8 violates an "inalienable right of liberty" in the state constitution