I am not a lawyer but my read of the constitution as a lay person would argue the Prop. #8 ruling like this:
First Amendment - Establishment Clause, Free Exercise Clause; Freedom of Speech, of the press and of assembly; right to petition
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Evidence
- There are churches and religious practices in USA that have historically allowed homosexuals to attend and practice mass.
- There are evidence of churches and religions with sanctified priest and pastors that have united people of the same sex in marriage.
- Marriage is therefore a religious act, not civil act; therefore the USA Government have no rights to create laws that abridge the religious rights of these people or to discriminate by denial of their religious right to consummate a marriage.
Fourth Amendment - Protection from unreasonable search and seizure.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. "
With the consummation of marriage the States and United States Government granted those couple certain civil rights to property, access and guardianship reserved only to married spouses, these property , accesses and guardianship rights cannot be seized without probable cause or due process under the law. Since Prop. #8 was not a statutory warrant issued against a criminal or unlawful civil act, these people and their rights are protected from unreasonable search and seizure.
Fifth Amendment – Due process, double jeopardy, self-incrimination, eminent domain.
" No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Since the properties rights, access rights and guardianship rights under spousal rights of marriage were removed by Prop. #8 without due process, the organizations which sponsored and committed these unlawful acts can be subject to civil law suit and RICO statutes of organized crime to deliberately deprive a class of people of their liberty, property without due process of the law! Just because a lynch mob majority within a city wants to hang someone or a minority group, they are not allowed under the law to perform such act. RICO was established for just that purpose to prevent criminal establishments or groups from depriving a sector or society of due process.
Prop. #8 violates so many statues of the constitution and bill of rights one can argue the entire legislation is unlawful and violates the constitutional rights of the people.
One can argue violation of Sixth Amendment – Trial by Jury which was not enacted before removal of rights.
One can argue violation of Seventh Amendment – Civil Trial by Jury.
One can argue violation of Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment; because the marriage annulment remove the property rights, removed the access rights and guardianship rights, which can be consider cruel and unusual. When else has a person who has committed no criminal or unlawful civil act been asked to surrender these rights?
One can argue the Ninth Amendments - Protection of rights not specifically enumerated in the Bill of Rights.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Prop. #8 is going to test the Constitutional Rights of the people against the religious belief of the few. Are we protected from mobs or do mob majorities have rights to strip us of life, liberty and pursuit of happiness without due process.