EDGE Boston

If the California Supreme Court decision scheduled to be handed down Tuesday morning were a "simple" matter of deciding the fate of marriage for same-sex couples, the collective LGBT community would be sleeping easy tonight knowing this same court just one year ago found that Adam and Steve has as much right to civil protection and happiness as Adam and Eve. But the court is being asked instead to shed light on a far murkier proposition -- the processes by which citizens may change the state’s Constitution.

The justices have said they will announce their decision on their web site at 10 a.m. (Pacific time) Tuesday on whether Proposition 8, which was approved 52 percent to 48 percent by the electorate last November, was truly a Constitutional amendment (which requires just a majority popular vote) or should have been submitted instead as a Constitutional revision, which would have required a two-thirds majority in both houses of the Legislature before a simple majority vote of the people.

California’s initiative process was created in 1911 to make popular reform of state law easier to accomplish in a state that was wary of the collective wisdom of its elected officials. The two-tiered process of reforming the Constitution through either amendment or reform was created with the implication that the tougher process -- revision -- would be reserved for fundamental changes to the Constitution.

Where the division lies between revisions and amendments has never been inarguably defined and historically the courts have been reluctant to override the power of the popular vote. But never before has an amendment been passed that strips away recognized rights from a minority group. That, Prop 8 opponents argue, is such an unprecedented and dangerous action that it should only be done through the stricter revision process.

That argument was labelled a "profoundly misguided ... siren song" in a brief in defense of Prop 8 written by state Sen. Dennis Hollingsworth (R-San Diego) earlier this year.

"We will be blunt," he wrote. "Theirs is a call for constitutional revolution."

The counter argument submitted by Attorney General Jerry Brown was that allowing Prop 8 to stand would turn the process of Constitutional reform upside down.

"The initiative power is, indeed, an expression of the People’s sovereignty, but it is not the fullest expression of that sovereignty," he said. "The People express their full sovereignty when they act in convention.... The People express a lesser scope of sovereignty in the initiative process....

"As certain of amici law professors explain, the 1911 amendment creating the initiative process ?was intended to allow voters to bypass a foot-dragging legislature, not to oppress vulnerable groups or strip courts of their traditional role of protecting minority rights.?"

Since the lawsuits to be decided Tuesday were filed with the court, marriage for same-sex couples has been legalized in several other states. Although that is anecdotal evidence of the cultural shift in national acceptance, marriage equality advocates in California are braced for an adverse decision Tuesday, when dozens of rallies are scheduled across the state and the country. Police in San Francisco are prepared for the expected demonstrations and have placed barricades near Civic Center Plaza where the court will decide the battle that was begun five years earlier across the plaza on the steps of City Hall when Mayor Gavin Newsom instructed clerks to begin issuing marriage licenses to same-sex couples.

"If we must reverse Prop. 8 at the ballot," Kate Kendell, executive director of the National Center for Lesbian Rights, said. Wwe will do so. We will win - if not on Tuesday, then one day soon."

A list of scheduled post-decision events is available from Marriage Equality.

If Prop 8 is struck down Tuesday, protests of "activist judges" are anticipated; whether the vehemence would rise to the ire that led to the ouster of justices who voted to end the death penalty decades ago is unknown. If Prop 8 is upheld, it is expected to trigger a series of election battles as the ambivalence of society’s acceptance is volleyed back and forth by electoral whim.

Whether we like it or not.