All three cases claim the ban abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.

In many states, signature gathering has become a niche industry in the role of politics. Proponents of initiatives, referendums, or recalls now pay individuals to collect signatures. This is required because of the sheer number of signatures required in order to qualify a measure on the ballot and the changes in American culture with public life shifting away from public places like parks and streetcars and into private spaces such as shopping malls and automobiles, which make it difficult to gather signatures. The signature gatherers are usually paid by the signature and often independent contractors, which makes them not subject to minimum wage laws. To combat the growing presence of signature gatherers, some states have passed bans on paying signature gatherers by the signature, and Oregon most notably declared signature gatherers employees and enforced labor laws on the petition proponents.

In the United States the initiative is in use, at the level of state government, in 24 states and the District of Columbia [1], and is also in common use at the local and city government level. The initiative has been recognized in the US since at least 1777 when provision was made for it by the first constitution of Georgia.
The modern U.S. system of initiative and referendum originated in the state of South Dakota. South Dakota adopted initiative and referendum in 1898 by a vote of 23,816 to 16,483. South Dakota is also the only state to have the idea develop on home soil without knowledge of the Swiss measure[citation needed]. Oregon was the second state to adopt, and did so in 1902, when the state's legislators adopted it by an overwhelming majority. The "Oregon System", as it was at first known, subsequently spread to many other states, and became one of the signature reforms of the Progressive Era (1890s-1920s). Well known U.S. initiatives include various measures adopted by voters in states such as Colorado, Washington, Oregon, California, Massachusetts and Alaska.

Prior to 1977, California Civil Code section 4100 (predecessor to what is now codified at California Family Code section 300) defined marriage as: "a personal relation arising out of a civil context, to which consent of the parties making that contract is necessary."[3]
While related sections made references to gender, a state assembly committee that was debating adding gender-specific terms to this section in 1977 noted: "Under existing law it is not clear whether partners of the same sex can get married."[4] That year, the legislature amended the definition of marriage to remove any ambiguity.
When Prop 22 came before voters, section 300 defined marriage as:
a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. [5]
Even though the definition governing who may marry explicitly precluded contracting a same-sex marriage in California, a separate provision, section 308, governed recognition of marriages contracted elsewhere:
A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state. [6]
Advocates of Prop 22 described section 308 as a "loophole," apparently forcing California to recognize a same-sex marriage validly contracted in some other state.[7] After passage, Prop 22 added a new section, codified at section 308.5, that reads:
Only marriage between a man and a woman is valid or recognized in Californi

Separately, numerous challenges to the constitutionality of the opposite-sex requirements found in California's marriage statutes, including Prop 22, came before the courts. A San Francisco trial court threw out all of the gender requirements on state constitutional grounds. On appeal, an intermediate court reversed that decision. In December 2006, the California Supreme Court voted unanimously to review all six cases and held oral argument on March 4, 2008, consolidating the cases as In Re Marriage Cases.[17] The Court ruled on May 15, 2008, that Proposition 22 violated the state Constitution and was therefore invalid.[18] Governor Arnold Schwarzenegger immediately issued a statement pledging to uphold the ruling, and repeated his pledge to oppose Proposition 8, a constitutional amendment initiative that would override the Court's ruling and again ban same sex marriages by placing the text of Proposition 22 in the State Constitution.[19]

In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], is a California Supreme Court case holding "that the California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying."[1]

Pre-election legal challenges
Petition to remove proposition from ballot
On July 16, 2008, the California Supreme Court denied a petition calling for the removal of Proposition 8 from the November ballot. The petition asserted the proposition should not be on the ballot on the grounds it was a constitutional revision that only the Legislature or a constitutional convention could place before voters. Opponents also argued that the petitions circulated to qualify the measure for the ballot inaccurately summarized its effect. The court denied the petition without comment.[20] As a general rule, it is improper for courts to adjudicate pre-election challenges to a measure's substantive validity. (Costa v. Superior Court (2006) 37 Cal.4th 986, 1005-1006.) The question of whether Proposition 8 is a constitutional amendment or constitutional revision remains unresolved, and a new petition arguing that Proposition 8 is a revision was filed by civil rights groups on November 5, 2008.[21]
Challenge to revised title and summary
On July 22, 2008, Proposition 8 supporters mounted a legal challenge to the revised ballot title and summary, contending that Attorney General Brown had inserted "inflammatory" language that would "unduly prejudice voters against" Proposition 8.[22] Supporters claimed that research showed that an attorney general had never used an active verb like “eliminates” in the title of a ballot measure in the past fifty years in which ballot measures have been used.[23] Representatives of the Attorney General produced twelve examples of ballot measures using the word "eliminates" and vouched for the neutrality and accuracy of the ballot language.[24][25]
On August 8, 2008, the California Superior Court turned down the legal challenge, affirming the new title and summary, stating, "[t]he title and summary is not false or misleading because it states that Proposition 8 would 'eliminate the right of same-sex couples to marry' in California. The California Supreme Court unequivocally held that same-sex couples have a constitutional right to marry under the California Constitution." [26][19] That same day, proponents of Prop. 8 filed an emergency appeal with the state appeals court. The Court of Appeal denied their petition later that day and supporters did not seek a review by the Supreme Court of California.[27][28] The deadline for court action on the wording of ballot summaries and arguments in the voter pamphlet was August 11, 2008.[29]
Court-ordered rewording
While turning down the challenge to the title and summary, the California Superior Court also found that the Yes on 8 campaign had overstated its ballot argument on the measure's impact on public schools and ordered a minor change in wording. The original arguments included a claim that the Supreme Court's legalization of same-sex marriage requires teachers to tell their students, as young as kindergarten age, that same-sex marriage is the same as opposite-sex marriage. The court said the Yes on 8 argument was false because instruction on marriage is not required and parents can withdraw their children. The court said the ballot argument could be preserved by rewording it to state that teachers "may" or "could" be required to tell children there is no difference between same-sex and opposite-sex marriage.[26]

The constitution can be changed by either amendments or revisions, the latter of which is defined as a "substantial change to the entire constitution, rather than ... a less extensive change in one or more of its provisions".[2]. Amendments may be passed by a two-thirds vote in both houses of the state legislature or a California ballot initiative, which a majority of voters must approve. Any citizen may petition for an amendment to be placed on the ballot if they gather signatures equal to 8% of the votes cast in the last gubernatorial election, among the lowest thresholds for similar measures of any U.S. state.[3] As of 2008, this was 694,354 signatures[4] compared to an estimated 2007 population of 36,553,215.[5] Revisions originally required a constitutional convention but today can be passed with a two-thirds vote in the legislature much like an amendment.

Many of the individual rights clauses in the state constitution have been construed as providing rights broader than the Bill of Rights in the federal constitution.[16] Two excellent examples are the Pruneyard Shopping Center case, and the first decision in America in 1972 finding the death penalty unconstitutional, California v. Anderson, 6 Cal. 3d 628, which also noted that under the state constitution, a stronger protection applies than the U.S. Constitution's 8th Amendment, which prohibits punishments which are cruel and unusual, the state constitution prohibits punishments which are cruel or unusual.

The Los Angeles Times reported that "The odds are strongly against the uncounted ballots being so dramatically different from the ones counted." The margin between those who approved and those who voted against Proposition 8 was slightly more than half a million votes. To reverse the reported results, opponents would have to win more than 59% of the votes not yet tallied. Thus far, they have won only 47.9% of the vote.[134] Thus it is extremely unlikely that the remaining votes could shift the outcome. By comparison, the Los Angeles Times did not call the outcome of Proposition 11 (2008) which has only a 133,952-vote margin of victory. [135] Gay media also reported that the outcome was unlikely to change given that most of the outstanding ballots "are from areas of the state with lower support for marriage equality."[136]
Gov. Arnold Schwarzenegger expressed hope that the California Supreme Court would overturn Proposition 8. He urged backers of gay marriage to follow the lesson he learned as a bodybuilder trying to lift weights that were too heavy for him at first: "I learned that you should never ever give up. . . . They should never give up. They should be on it and on it until they get it done." He also predicted that the 18,000 gay and lesbian couples who have already wed would not see their marriages nullified by the initiative.[137]

On November 19, 2008, the California Supreme Court accepted three lawsuits challenging Proposition 8 but denied the requests to stay its enforcement.[148] The motion to intervene filed by Proposition 8 proponents was granted, but the motion to intervene filed by the Campaign for California Families was rejected.[148] The issues to be briefed and argued are as follows:
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, sections 1-4.)
(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?[148]
Proponents have until December 19, 2008 to file their return and brief, opponents then have until January 5, 2009 to file their reply.[148]
Legal experts are expecting the California Supreme Court to reach a ruling during 2009

Gay media also reported that the outcome was unlikely to change given that most of the outstanding ballots "are from areas of the state with lower support for marriage equality.

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, sections 1-4.)
(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Originally posted by Jim Scott
The attempt to overturn Prop 8 has just been thrown out by a Federal Judge. Looks like there are a few good judges left in our land. www.bizjournals.com...