The legal question is simple, as the California Supreme Court previously stated: (1) Is the amendment "an enactment which is so extensive in its provisions as to change directly the 'substantial entirety' of the Constitution by the deletion or alteration of numerous existing provisions?"; or (2) Does the amendment "change ... the basic plan of California government, i.e., a change in its fundamental structure or the foundational powers of its branches?" The answer to both questions is "No!" The California Supreme Court also stated: "The right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter." And as the California Supreme Court said in its May 15, 2008, decision, "the provisions of the California Constitution itself constitute the ultimate expression of the people's will." In re Marriage Cases, (2008) 43 Cal.4th 757, 852.

Liberty Counsel's brief argues that invalidating Proposition 8 would have a devastating effect on the constitutional rights of those who exercised their right to vote on the initiative. The California Supreme Court should continue to honor a cornerstone of California's constitutional foundation - separation of powers. If the Court does not uphold Proposition 8, it will no longer be anchored to the bedrock principles that have held this state republic together for 150 years. Instead the court, legislatures, and voters would be left standing on shifting sand to be tossed about by the winds of social and political change. Liberty Counsel's brief also argues that Proposition 8 invalidates all same-sex marriages entered into prior to November 4, 2008, because Prop 8 states that only marriage between one man and one woman shall be valid or recognized in California.

Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, commented: "The Constitution cannot overrule itself. When the people passed Proposition 8, it became part of the state Constitution and no judge, irrespective of how high or mighty, may stand above the rule of law. After the passage of Proposition 8, only marriage between a man and a woman is valid or recognized in California. In the same way that the passage of the Thirteenth Amendment to the U.S. Constitution abolished a slaveholder's title and the Prohibition Amendment divested the right to sell liquor, Proposition 8 makes same-sex marriage licenses invisible and void."