The Volokh Conspiracy

Leaders of the Mormon Church urged their followers to contribute to a constitutional ban on marriage for gay families, a call that apparently resulted in the bulk of the donations to that effort in California. Religious leaders and their adherents are of course free to oppose gay marriage. But when you enter the political fray, you are not exempt from public criticism and protest just because you are a religion or have religious reasons for your advocacy. It's not anti-religious bigotry to call attention, loudly and angrily, to what you have done.

Moreover, despite the focus on a few extremists whose words have indeed crossed the line into religious (and racist) bigotry over the past few days, the anti-Prop 8 rallies have been peaceful and mostly respectful. Frankly, if marriage had been denied to blacks, Mormons, Catholics, or almost any other group, it's hard to imagine the reaction would have been as mild as it's been.

Nevertheless, I am uncomfortable with pickets directed at specific places of worship like the Mormon church in Los Angeles. It's too easy for such protests to degenerate into the kinds of ugly religious intolerance this country has long endured. Mormons, in particular, have historically suffered rank prejudice and even violence. Epithets and taunts directed at individuals are especially abhorrent. Individual Mormons (and blacks and others) bravely and publicly opposed Prop 8. Even those who supported Prop 8 are not all anti-gay bigots, though I saw plenty of anti-gay bigotry when I was in California last week. As I've repeatedly argued, there are genuine concerns about making a change like this to an important social institution. Those concerns are misplaced and overwrought, but they are not necessarily bigoted.

Here's my advice to righteously furious gay-marriage supporters: Stop the focus on the Mormon Church. Stop it now. We just lost a ballot fight in which we were falsely but effectively portrayed as attacking religion. So now some of us attack a religion? People were warned that churches would lose their tax-exempt status, which was untrue. So now we have (frivolous) calls for the Mormon Church to lose its tax-exempt status? It's rather selective indignation, anyway, since lots of demographic groups gave us Prop 8 in different ways — some with money and others with votes. I understand the frustration, but this particular expression of it is wrong and counter-productive.

Public protest against a constitutional ban on marriage for gay families is entirely justified. More than a mere vote, protests communicate intensity of feelings. They're valuable in a democracy. Something incredibly precious was lost on Tuesday. Those who lost it should not be expected to go back quietly to producing great art and show tunes for everybody's amusement.

I understand a rally is planned for the state capitol in Sacramento. That's more like it.

If a more intense physical expression of anger and frustration is needed, why not have sit-ins at marriage-license bureaus in California? It could be modeled on the sit-ins at segregated lunch counters in the 1960s. The demonstrations would be targeted at government buildings — rather than at churches. And after all, it's government policy we're legitimately protesting, not religious doctrine. Let people get arrested as they sing "We Shall Overcome." The protesters themselves — gay and straight, single and married, black and white, Mormon and Catholic, Republicans and Democrats, moms and dads raising kids — would suffer and accept the legal consequences of their acts. Rather than instilling fear and resentment in others, rather than dividing people on religious and racial lines, they would literally be putting their own bodies on the line for the good of their relationships, their families, their friends, and for a just cause whose time has come. We've had enough of lawyers, courts, focus groups, and media handlers. Let peaceful protesters by the thousands be dragged away just because they want to marry. It would be good old-fashioned civil disobedience, an American protest tradition.

The state constitutional challenge to Prop 8 turns out to be more interesting than I initially supposed. The California constitution recognizes two types of changes: "revisions" and "amendments." The distinction, which is not elaborated in the constitutional text and barely explained in California state court decisions, matters a great deal because the state constitution places a higher hurdle in front of revisions than amendments. "Revisions" can be effected only through approval by two-thirds of each state house, followed by a majority vote of the people. "Amendments" can be effected by simple majority vote of the people, without prior legislative approval.

Prop 8, which inserted a ban on same-sex marriage into the state constitution, was styled as an amendment and accordingly went through the amendment process — requiring only the simple majority vote of the people (52%) that it got on Tuesday. It did not get the prior approval of two-thirds of each house of the state legislature. But if it turns out that Prop 8 was a "revision" rather than an "amendment" then Prop 8 violated the procedural requirements for changing the state constitution and is therefore unconstitutional. In that case, Prop 8 supporters would first need to get the approval of two-thirds of each state house, which is extremely unlikely given that the state legislature has twice voted to extend marriage to same-sex couples.

So back to the question, which is it: a revision or an amendment? Recent posts by Eugene and Stephen Bainbridge argue that Prop 8 is an amendment. They cite cases in California which indicate that the distinction turns on the extensiveness and numerosity of the changes wrought by a proposed change. (I urge you to read their excellent posts, as I will assume your knowledge of them here.) On this view, changes that affect multiple constitutional provisions, like the proposed addition of 21,000 words to the state constitution in one case Professor Bainbridge cites, would be revisions, as would be attempts to reallocate judicial power to the legislature. Changes that affect only a discrete and narrow set of rights or provisions would be an amendment.

Prop 8 added only 14 words to the state constitution, adds only one provision, and deals only with the discrete issue of defining marriage. In their view, it does not deal with a host of constitutional rights or alter the basic structure of state government or the role of the state judiciary in it. This argument may be accepted by the California courts. If forced to bet, I'd bet it will prevail.

However, the issue presented by Prop 8 is different in important respects from any that the state courts have previously confronted. In a brief filed yesterday several legal groups representing gay couples argue that Prop 8 is a revision. You should read their brief if you want to get into the weeds of the argument further, but I can summarize the heart of it fairly succinctly: Prop 8 stripped (1) a fundamental right (marriage) from (2) a suspect class (gays). Because of the importance of these changes, they argue, it is thus a revision and not an amendment.

The following issues bearing on the revision/amendment distinction are raised: First, can a fundamental right be denied through amendment, requiring only a majority vote of the people? Second, can a bare majority target a suspect class by mere amendment? Either of these alone would present a novel issue for the state courts. (Important rights of criminal defendants were at issue in Raven v. Deukmejian, 52 Cal 3d 336 (Cal. 1990), though the court didn't call them "fundamental rights" and at any rate held that the case involved a revision.) Together, they're a double-whammy of constitutional change.

Now you may disagree that the fundamental right to marry extends to same-sex couples. You may also disagree that sexual orientation classifications are suspect, requiring heightened judicial scrutiny. Both objections are well-grounded, are the majority view in other state court systems, and may well be correct. But the California Supreme Court disagrees with you on both points, as it held in its marriage decision last May. Unless it reverses its decision, the court could take the importance of the right declared and the suspect nature of the discrimination into account when it decides what kind of constitutional change Prop 8 would be.

The California Supreme Court has held that the difference between an amendment and a revision turns on both "quantitative and qualitative" factors, and that "substantial changes in either respect could amount to a revision." Raven, 52 Cal. 3d at 350 (emphasis added). Thus, even if we thought that Prop 8 affected relatively few constitutional provisions (say, the state's equal protection and due-process guarantees), changes to these provisions might be regarded as "substantial qualitative" reforms in the content of basic constitutional principles.

In determining the difference between a revision and an amendment, we might ask what purpose the distinction serves. The revision process requires considerably more deliberation and political consensus before a constitutional change is made. I can see an argument, along the lines implied by Professor Bainbridge and Eugene, that more deliberation and consensus should be required before extensive and numerous changes are made in the basic design of state government. This is because such changes involve great complexity and have far-reaching consequences that should not be decided by dueling 30-second TV ads. The distinction between revision and amendment is thus a procedural protection for the basic design of government.

But I can also see an argument, offered by those challenging Prop 8, that more deliberation (through the legislative process) and more consensus (than a bare majority vote in an election) should also be required before a majority strips a fundamental right from 3% of the population. Otherwise, fundamental constitutional rights enjoy no more protection from majorities than ordinary statutory rights. And protected minorities have no more protection against majorities than those majorities themselves see fit to grant them by grace. The revision/amendment distinction, on this view, is a structural mechanism (embedded in the state constitution itself) for shielding these vulnerable minorities against hostile majorities.

The revision/amendment distinction could, of course, serve both the procedural purpose identified by Eugene and Professor Bainbridge and the structural pupose identified by the Prop 8 challengers.

Consider a couple of analogies. (1) Suppose a majority of the people became concerned about the growing political influence of Mormons, exhibited by what the majority regarded as their huge donations to political campaigns, and decided to alter the state constitution to deny Mormons, and Mormons alone, the right to make contributions to ballot fights. Aside from the obvious federal constitutional issues involved, would the change be considered an "amendment" or a "revision" under the California constitution? (2) Suppose a majority of the people decided that blacks were not taking the responsibilities of marriage very seriously, exhibited by what the majority regarded as high illegitimacy rates, high divorce rates, and rampant cohabitation and promiscuity, and decided to alter the state constitution to deny to blacks, and blacks alone, the fundamental right to marry? Again putting aside the invalidity of such a change under the federal constitution, would the change be an "amendment" or a "revision" under the California constitution?

Under the Bainbridge/Volokh analysis, wouldn't these proposed changes be amendments, requiring only approval by a bare majority of the state's voters? Neither involves extensive changes to the state constitution, or numerous or profound changes to the basic structure of California government, or an alteration of the judicial role. Each involves the denial of a fundamental right to a protected class, just as Prop 8 does (again, according to the California Supreme Court). If Prop 8 is different, how is it different? Just because gays are involved? Under California law, whether you agree or not, gays stand on the same plane as any other protected class. Discrimination against them is as suspect as it is against blacks or Mormons. And also under California law, marriage is as fundamental for them as it is for blacks and as important for them as political speech is for Mormons.

It's just a thought experiment, of course, since we would never dream of amending a constitution to make such outrageous changes eliminating the important rights of racial and religious minorities. But if the question were presented, it's not obvious to me that the issue would be resolved by counting the words in the hypothetical amendments, tallying the number of constitutional provisions affected, or asking simply whether the judicial role had been compromised. It's plausible that the courts would say these are "revisions" requiring approval by two-thirds of each house of the state legislature followed by a majority vote at the ballot box.

Indeed, before Prop 8, no state had ever changed its constitution to deny a fundamental right to a suspect class of people. Thus, the two state supreme court decisions Eugene cites (one from Alaska and one from Oregon) where similar procedural challenges were unsuccessfully lodged against anti-gay marriage amendments, arise from quite different doctrinal contexts than the California case presents. Neither of those state supreme courts had taken either of the landmark steps taken by the California Supreme Court last May.

I make no prediction about how the California courts will resolve these questions. What they will actually do probably depends in part on what they think the political and other consequences of overturning Prop 8 would be. A decision invalidating Prop 8 would infuriate both opponents of gay marriage and those wary of judicial intrusion in important matters of public policy. Prop 8 supporters raised some $35 million, effectively coordinated a massive volunteer effort, launched a devastating ad campaign, and won — only to be told it was all for naught? There would be a backlash, which might well result in attempts to recall some of the justices on the California Supreme Court. It's happened before in California, as anyone old enough to remember the name "Rose Bird" can tell you. While in theory the possibility of such a backlash should not matter to judicial decisions, in practice it would be surprising if it didn't. Supporters of Prop 8 need only peel off a single justice of the 4-justice majority to win on the revision/amendment distinction.

I'm also not saying that a ruling against Prop 8 would necessarily be in the long-term best interests of the gay-marriage movement. It's a complicated calculus. On the one hand, California is a big prize in lots of ways and getting gay marriage there sooner might hasten things elsewhere in the country. It would also help gay families in the state, who stand to lose a lot while waiting another decade or so for their marriages to be validated in another proposition battle. On the other hand, I think gay marriage will eventually win at the ballot box in California and will win in a few state legislatures even before that happens. The risk of invalidating Prop 8 is that you scare a few more states into enacting constitutional barriers just as the political and cultural winds are shifting in your favor. (However, there probably aren't more than a handful of states left that would enact constitutional gay-marriage bans.) I'm also dubious about the underlying constitutional claims and prefer legislative to judicial action on this subject.

Even as a doctrinal and precedential matter, moreover, the narrowest reading of the California precedents is probably closer to the view expressed by Professor Bainbridge and Eugene than it is to the view expressed by the Prop 8 challengers. The state courts are perfectly free to limit the precedents to their facts and thus dismiss the Prop 8 challenge. Prop 8 doesn't involve numerous or profound changes in the basic structure of state government.

But if the courts ask why there is a distinction between revision and amendment, and answer that the distinction also provides a structural safeguard for what the courts themselves regard as a vulnerable minority exercising a fundamental right, it's not obvious that the challenge should fail.

UPDATE: See a contrary view from Professor Calvin Massey here.