Proposition 8

Proposition 8 is a classic case of judicial review in the modern era. Unlike Marbury v. Madison which was one branch overruling another branch, this is at a much deeper level. This is the Federal Judiciary overruling the will of the people.

Should the judiciary be able to overturn a popularly selected change to a states' constitution? If so, why? If not, why not?

No, the judiciary branch should not be able to overturn a popularly selected change to a states’ constitution in normal instances. However if the popularly selected change arose as a problem under the Constitution, the judiciary should overturn the will of the people.

What Constitutional grounds does the judiciary have for overruling the will of the people? Are there any other cases that you can find that are similar to this case? (can be a different issue)

According to Article III of the Constitution, the Supreme Court is given the judicial power to rule under “all cases arising from the Constitution.” Because Proposition 8 breaks the Equal Protection Clause, which is part of the Fourteenth Amendment to the U.S. Constitution, the judiciary has the power to intervene. The Equal Protection Clause can be seen as an attempt to secure the proposition that "all men are created equal" by empowering the judiciary to enforce that principle against the states. As written it applies only to state governments, but it has since been interpreted to apply to the federal government as well.

Martin v. Hunter’s Lessee (1816) is a similar case. The issue involved was whether Section 25 of the Judiciary Act of 1789 was constitutionally valid, giving the Supreme Court the right to review the final decisions of state courts. It is the nature of the case and not the court of origin that determines whether the Supreme Court has appellate jurisdiction. The states themselves are not equal sovereigns with the federal government, but rather subject to its law-making capability. Even if the state courts do not abuse the power of the Constitution, they are likely to rule differently on it from state to state. Therefore, the need for uniformity in decisions requires an “ultimate single court of last resort” which exercises review over all states. There is also substantial historical evidence that the framers intended the Supreme Court to review state court decisions.

Should we have a Federal definition of marriage to clarify this issue for all US citizens? Compare this to another instance where the Federal Government had to create a rule for everyone in the country.

We shouldn’t have a Federal definition of marriage to clarify this issue for all U.S. citizens. Marriage is deeply personal. Everyone should have the fundamental freedom to get married if they choose. The Constitution should guarantee the same rights to everyone. It is completely unfair to discriminate gays and lesbians, just as it was completely unfair to prohibit African Americans and women from voting. “Equality under the law” is a constitutional guarantee that is not difficult to understand. If people do not understand it and need a definition to clarify the issue, the U.S. has a serious problem.