Proposition 8 Decision

August 5, 2010

Judge Vaughn Walker’s opinion, striking down Proposition 8 is on Westlaw at 2010 WL 3025614. The docket can be found at 3:09CV02292.

Orin Kerr (on Volokh) posed an interesting question this morning:

Should it matter to the constitutionality of Prop 8 that it was passed as part of a ballot initiative that restored preexisting law?

The initiative process is interesting stuff for those of us from states without this process. A 2007 Columbia Law Review article notes that 24 states permit this kind of citizen law making. See 107 Colum. L. Rev. 1437. Footnote 1 from this article provides some interesting sources describing why the Federal Constitution rejects “direct democracy.” For more on California’s initiative process, see CAJUR INITIATIVE § 1 et. seq.

To find an initiative, try the ‘legis’ databases. In California, your search might look like this:

  • Database: ca-legis-old
  • Query: ci(prop! & 8)

Results tell you where the document has been codified in the statutes. And, note that the statutrory credits at CA CONST Art. 1, § 7.5 references the relevant initiative:

(Added by Initiative Measure (Prop. 8, § 2, approved Nov. 4, 2008, eff. Nov. 5, 2008))

An appeal is likely. To set up a docket alert to track when the appeal and briefs have been filed, click on “Alert Center” in the upper-right corner of Westlaw, choose “create” to the right of “Docket Alert,” and follow the wizard for “Receive an alert when new cases are filed.”