Once the California Supreme Court decision is handed down, the precise contours of the battle over Proposition 8 and marriage equality will change, but nothing on the political horizon will make moot many of the fundamental issues direct democracy raises for California and the nation. A special and enduring element of the Prop 8 controversy is the role of judicial review in the scrutiny of the results of ballot propositions. A slice of conventional wisdom seems to suggest that the results of plebiscites should be nearly immune from judicial review. On the other hand, many political and legal scholars are more skeptical, and some even argue that judicial review of direct democracy should be more searching, given that the usual vetting and deliberation has not occurred. This article seeks to place the debate over Prop 8 into the broader context of an ongoing discussion about the place of direct democracy in legal and constitutional change.
- same sex marriage; LGBT; sexual orientation; civil rights