Today the California Supreme Court is hearing arguments about the contitutionality of the controversial Proposition 8 that was passed in November, amending the California constitution to prohibit homosexual marriage. Based on the things I have read and heard, it seems that many people are having a hard time understanding that the actual issue before the court is not the merits of such an amendment, but whether an amendment of this kind can be made by a simple majority vote. In other words, the California Supreme Court will not (I should say “should not”) be deciding whether or not homosexual marriage is a good thing, but whether the state constitution allows such amendments to be made the way Proposition 8 was. In short, this is a civil procedure case.

Certainly the outcome has substantive impact. If the court decides that Proposition 8 was passed in an unconstitutional manner, it becomes a nullity and California returns to being the second of these United States to allow homosexual mariage by judicial pronouncement. There are, however, some interesting sub-plots that get lost in the shuffle.

First, if the court does rule that Prop 8 is unconstitutional, it would render moot any federal case arguing that Prop 8 violates the 14th Amendment to the federal Constitution. In my mind, this is the “big fish” argument. I have written previously on the evolution of the 14th Amendment and how the United States Supreme Court has a long history of taking a results-oriented approach to its interpretation. One can see the “ramp up” to the infamous Roe v. Wade decision in prior cases dealing with government intrusion into marriage and procreation. There has been a similar ramp-up over the past several years regarding the issue of homosexuality on society. The Supreme Court has issued decisions striking down sodomy laws in all 50 states and has held that states cannot make constitutional amendments excepting “sexual orientation” from classes protected from employment discrimination.

All this means that the time is ripe for a Supreme Court decision stating that states cannot prohibit homosexuals from marrying if they wish. The interplay between Prop 8 and the 14th Amendment looks to me like the perfect battleground for such a decision. But if the California Supreme Court overturns Prop 8, it would make the federal question moot and non-justiciable. A California victory for homosexual marriage proponents could come at the expense of a federal coup d’état.

My second observation is that there is a considerable ideological overlap between the people who want the California Supreme Court to overturn the results of a popular election and the people who, for the last 8 years, have mercilessly ridiculed Justice Scalia and the United States Supreme Court for usurping a popular election and declaring George Bush the winner of the 2000 election. For over 8 years, the accusation has come from liberal corners that the Supreme Court should not have gotten involved in the democratic process by halting the recount and that the will of the people should have been given paramount importance. Now, from those same corners, we are hearing that the will of the people of California should not be recognized and that the state Supreme Court should step in and invalidate the results of a popular vote. This is certainly inconsistent, if not downright hypocritical.

So what do you think? Will the California Supreme Court strike down Prop 8? Can you see the United States Supreme Court mandating homosexual marriage throughout the country? When should courts substitute their own notions of morality for the will of the people?