As the disappointing news filtered through last Thursday that a majority of Californians had endorsed Proposition 8 (the amendment to the Californian Constitution which would expressly define marriage as between a man and a woman), Australians were also learning of gay civil rights groups’ plans to lodge a legal appeal to the amendment.

It’s not often you’ll find me agreeing with conservative gay political commentator Andrew Sullivan. However, Sullivan’s comments that a legal challenge was a futile exercise in circumstances where Californians had clearly spoken about the issue make eminent sense.

The legal challenge argues that Proposition 8 is a constitutional revision as opposed to a constitutional amendment. The distinction is important at law because a constitutional revision requires a two-third majority vote of the Californian legislature to recommend the measure before Californian citizens can vote on it. If the legal challenge successfully establishes that Proposition 8 is more aptly characterised as a constitutional revision, then it will be possible to have Proposition 8 invalidated on the basis that the correct procedure for voting on a constitutional revision has not been complied with in this instance.

The success of the appeal will ultimately depend upon the meaning of a constitutional revision. Previous cases in California which have considered this question have determined that a constitutional revision seeks to change an underlying principle in the constitution. Gay rights groups argue that Proposition 8 violates an underlying principle in the constitution, namely that all citizens are entitled to the equal protection of the law, and therefore constitutes a revision.

Whether or not the legal challenge will succeed misses the point (legal commentators are generally of the view that the challenge is unlikely to succeed). Ultimately, whether gay marriage is permitted is a political question which requires a political resolution. Seeking legal redress for these sorts of contentious issues, especially where a clear majority of people are against the measure, will only drive public opinion away from gay marriage.

Gay and lesbian activists in California should be proud of their successes. At the end of the day, Proposition 8 got up on a relatively small margin. The fact that 48 percent of the vote counted so far was against the measure indicates that public opinion is demonstrably shifting in favour of gay marriage and will continue to do so in future. Our day will come.

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